Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 50609248
RIVERA, J.
Loren Matthew Dennis appeals from a judgment upon a jury verdict finding him guilty of three counts of assault with a deadly weapon by means of force likely to inflict great bodily injury with the allegation as to two of the counts that in committing the assault, he personally inflicted great bodily injury under circumstances involving domestic violence. (Pen. Code, §§ 245, subd. (a)(1), 12022.7, subds. (a) & (e).) The trial court sentenced defendant to 12 years in state prison. He contends that the trial court erred by relying on the same facts to impose the upper term and the aggravated enhancement. We affirm.
The jury acquitted defendant of two counts of attempted murder.
I. FACTS
In January 2006, defendant lived with his girlfriend, Crystal Roof, at the house of her mother, Sandra Southerland, in Rodeo. Roof’s brother, Stewart Taylor and her grandmother also lived at the house. On the evening of January 7, 2006, Roof told defendant that she wanted him to hang out with her friends but defendant was uncomfortable with her friends because they did not use drugs. Defendant also told Roof that he was upset because she was not working and he was responsible for paying all of the bills. Roof told him that she would try to find out if she could be compensated for taking care of her grandmother who was on oxygen. Defendant appeared satisfied with that arrangement and they went to bed.
Several months prior to that evening, Roof told defendant that she needed to take a break from him because of his drug usage and defendant told her, “if I can’t have you nobody else can have you.”
Roof awoke the following morning to defendant hitting her in the face with a baseball bat. She could not move her legs and tried to use her hands to cover her face. Defendant was sitting on her legs and hit her numerous times on her face and left hand and wrist; all Roof could do was scream. Southerland responded to Roof’s screams and told defendant to stop and hit her instead. Defendant got off of Roof and ran to Southerland.
Southerland tried to run to the bedroom door but fell when defendant hit her in the back of the head with the bat. Defendant turned Southerland over, jumped on top of her and started to hit her in the face with the bat. Defendant then began to choke her. Roof grabbed defendant and they both fell sideways. Defendant then kicked Roof’s breasts. He proceeded to hit Southerland with a hatchet in the face.
Taylor woke up and heard Roof and Southerland screaming. He went to his mother’s bedroom and saw defendant hitting Roof. Taylor told defendant that he was going to call the police. As he picked up the phone, defendant came after him and tried to hit him with the baseball bat. Defendant’s eyes looked very big. Taylor jumped across the bed, but defendant was able to catch him and hit him in the arm and break his hand with the bat. Taylor eventually ran out of the house. Roof’s grandmother then awoke and found Roof and Southerland in the kitchen covered in blood. She called 911.
Deputy sheriff Mark Spaulding responded to the scene and found Roof and Southerland bleeding heavily from the face and head. He found a baseball bat and a hand axe in the bedroom and saw blood splattered on the walls, ceiling, and on the bed.
Roof suffered major trauma to her face including multiple lacerations on her face, scalp, and across the bridge of her nose. She also had a laceration on her left knee and on her torso. She had multiple fractures of the skull and eye socket. Several of her bottom teeth were knocked out. Southerland suffered multiple contusions of her face and scalp, a depressed skull fracture, extensive fractures of the facial bones, and loss of seven teeth. She is now blind in the left eye. She has numbness on her left side and cannot use her left fingers. Taylor was treated for a broken hand.
II. DISCUSSION
Defendant contends that the trial court’s reliance on certain aggravating factors to impose both the upper term on the assault conviction and the great bodily injury enhancement constituted an improper dual use of facts. He also argues that his trial counsel was ineffective because he failed to object to the court’s dual use of facts.
Defendant acknowledges that his counsel failed to object to the court’s sentence on dual use of facts grounds, but urges us to nonetheless consider the issue. (People v. Scott (1994) 9 Cal.4th 331, 353 (Scott) [waiver doctrine applicable to cases in which the court purportedly erred because it double-counted a particular sentencing factor].) To obviate defendant’s claim that his counsel was ineffective for failing to interpose a sentencing objection, we consider defendant’s claim.
The trial court cited seven factors for imposing the aggravated term on the principal assault count and the enhancement: (1) extraordinary and extreme degree of cruelty, viciousness and callousness; (2) the victim was particularly vulnerable “over and above or separate from the fact that she and [defendant] were in a dating relationship”; (3) defendant inflicted damage of great monetary value, beyond the great bodily injury found by the jury; (4) defendant poses a serious danger to society; (5) defendant’s prior convictions show an increasingly serious pattern of antisocial behavior; (6) defendant was on probation at the time of the offense; and (7) defendant’s prior performance on probation and parole was consistently unsatisfactory. The problem with the court’s statement of reasons, as defendant argues, is that the court failed to assign any factor or factors individually to its decision to impose either the upper term for the assault conviction or the aggravated term for the enhancement. The same fact cannot be used both to aggravate the base term and to impose an enhancement. (Scott, supra, 9 Cal.4th at p. 350; People v. Velasquez (2007) 152 Cal.App.4th 1503, 1516, fn. 12 (Velasquez).)
The court’s error, however, in relying on the same multiple factors to impose both the upper term and the aggravated term on the enhancement was harmless. The court cited seven factors, any one of which could have been used to aggravate the base term or the enhancement. (See Velasquez, supra, 152 Cal.App.4th at p. 1516 [single aggravating circumstance supports imposition of upper term].) The court recognized this fact, noting “any one of these factors alone would support the imposition of the aggravated term.” The court’s remarks also reflect that it recognized that the circumstances of this case went “beyond a traditional case of assault with a deadly weapon and beyond traditional great bodily injury” and noted defendant’s exceptional cruelty, viciousness and callousness resulting in the victim’s severe and permanent injuries, emotional and economic damage. The court found no mitigating factors. Given the facts of this case including the vulnerability of the victims, the extraordinary violence, and the resulting injuries, it is not reasonably probable that the court would have imposed a more favorable sentence absent the error or had counsel interposed an objection. (People v. Watson (1956) 46 Cal.2d 818, 836.)
III. DISPOSITION
The judgment is affirmed.
We concur: REARDON, Acting P.J., SEPULVEDA, J.