Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CM030699.
BUTZ, J.
After pleading no contest to assault by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)) and admitting he inflicted great bodily injury in the commission of the crime (§ 12022.7, subd. (a)), defendant Storm Steven Boyle was sentenced to seven years in state prison. On appeal, he contends the trial court abused its discretion when it imposed the upper term based on an improper dual use of facts. We shall affirm the judgment.
Undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant and two cohorts physically attacked the victim, repeatedly kicking and punching him, after telling the victim he was going to be “jumped into a gang.” Defendant also took money and an MP3 player from the victim. As a result of the attack, the victim suffered damage to his teeth and multiple facial fractures.
Defendant entered a negotiated plea of no contest to assault by means likely to produce great bodily injury and admitted that he personally inflicted great bodily injury on the victim in exchange for dismissal with a Harvey waiver (People v. Harvey (1979) 25 Cal.3d 754) of a second degree robbery charge and a street terrorism allegation.
At commencement of the sentencing hearing, the court stated its tentative decision to impose the middle term of three years for the assault conviction. Following oral argument, however, the court stated that it would impose the upper term of four years instead, stating as follows: “The Court is basing that on the recidivism factors we’ve seen in the juvenile’s history, violence. Additionally, the crime did involve great violence, great bodily harm; it disclosed a high degree of cruelty, viciousness, and callousness. [Defendant] was involved with others and helped others be involved in this crime. [¶] And the Court on that basis finds that the upper term is the appropriate term: Four years.” The court denied probation and sentenced defendant to the upper term of four years, plus three years for the enhancement, for an aggregate sentence of seven years in state prison. The court imposed specified fees and fines and awarded defendant presentence custody credits.
Defendant filed a timely notice of appeal.
DISCUSSION
Defendant contends the court’s reliance on “great violence and great bodily harm” as aggravating factors to support imposition of the upper term was an unlawful dual use of facts. The People argue defendant forfeited the claim by failing to raise it at trial and, in any event, any error was harmless.
“[C]omplaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal.” (People v. Scott (1994) 9 Cal.4th 331, 356 (Scott); see also People v. Sharp (2003) 112 Cal.App.4th 1336, 1339.)
Relying on Scott, supra,9 Cal.4th at page 356, defendant urges his claim is not forfeited because he had no meaningful opportunity to object. We are not persuaded. In Scott, the trial court pronounced sentence, then invited comments from counsel; however, no objections were raised. (Id. at p. 340.) Our state’s highest court noted that a meaningful opportunity exists “if, during the course of the sentencing hearing itself and before objections are made, the parties are clearly apprised of the sentence the court intends to impose and the reasons that support any discretionary choices.” (Id. at p. 356.)
Here, the court stated its tentative ruling, followed by oral argument from counsel, which included a request from the prosecution that the court impose the upper term as recommended in the probation report. Thereafter, the court stated its decision to deviate from its tentative ruling and instead impose the upper term as recommended by probation, and articulated its reasons for imposition of the upper term. The hearing did not end there, however, as the court went on to impose fees and fines, recommend that defendant attend drug and alcohol counseling, and order defendant to provide specimens and prints. Counsel and the court also engaged in discussions regarding scheduling of the restitution hearing and calculation of custody credits, following which the court inquired: “Do either counsel wish to be heard regarding the accuracy of the credits?” All counsel submitted the matter and defendant was informed of his right to appeal the sentence only then was the hearing concluded.
The record is plain that, during the course of the sentencing hearing, the court clearly apprised the parties that it intended to impose the upper term, and that it clearly articulated its reasons in support of that discretionary choice. It is also plain that defendant had ample opportunity to object to the court’s reasons for imposing the upper term, either immediately following imposition of the sentence or thereafter at any time prior to the conclusion of the hearing. Defendant’s failure to do so forfeits the claim on appeal. (Scott, supra,9 Cal.4th at pp. 353, 355; People v. Brown (2000) 83 Cal.App.4th 1037, 1041-1042.) Even assuming defendant had preserved his claim for appeal, he has not shown that any error resulted in prejudice.
In a case involving an improper dual use of facts, the error will be found harmless where, “[i]t is not reasonably probable that a more favorable sentence would have been imposed in the absence of the error.” (People v. Avalos (1984) 37 Cal.3d 216, 233; see People v. Osband (1996) 13 Cal.4th 622, 728-729 (Osband).) This is a case where any error was harmless.
Here, the trial court noted that defendant had recently turned 18 years old and therefore had “just crossed the threshold from minority to adulthood after having been a ward of the Court....” Consequently, the court did not consider defendant’s age to be a mitigating factor, nor did it find any other factors in mitigation. The court did note, and the probation report reflects, defendant’s juvenile history which shows numerous probation violations as well as violent crimes, including grand theft of a person (§ 487, subd. (c)) and corporal injury on a spouse or cohabitant (§ 273.5, subd. (a)). In addition to those factors, the trial court also found two other aggravating factors, namely, that defendant’s crime involved a “high degree of cruelty, viciousness, and callousness,” and that “defendant was involved with others and helped others be involved in this crime.” A single aggravating factor will support an upper term sentence. (Osband, supra, 13 Cal.4th at p. 728.) Given the valid aggravating factors and the lack of mitigating circumstances, it is not reasonably probable that the trial court would have imposed anything less than the upper term. Accordingly, even if we agreed with defendant’s claim of an improper dual use of facts, the error would be harmless.
DISPOSITION
The judgment is affirmed.
We concur: SCOTLAND, P. J., HULL, J.