Opinion
C060264
12-17-2009
THE PEOPLE, Plaintiff and Respondent, v. JOHNNY CARLOS HERNANDEZ, Defendant and Appellant.
Not to be Published
Defendant Johnny Carlos Hernandez appeals following resentencing on remand. He contends the trial court erred by imposing the upper term, and trial counsel was ineffective for failing to object. We shall affirm the judgment.
FACTS AND PROCEDURAL BACKGROUND
In a case arising out of an altercation between Norteños and Sureños street gangs, a jury convicted defendant of attempted voluntary manslaughter (a lesser included offense of attempted murder (count I)), assault by means of force likely to produce great bodily injury (count II), and actively participating in a criminal street gang (count V). The jury also found count II was committed for the benefit of a criminal street gang. Defendant admitted he had a prior conviction for robbery, a serious felony for purposes of the three strike law.
After denying defendants motion to strike the prior serious felony conviction for purposes of sentencing, the court imposed an aggregate state prison term of 16 years, consisting of four years (the upper term) on count II, doubled pursuant to the three strikes law, plus three years consecutive for the gang enhancement and five years consecutive for the prior felony enhancement. The court also imposed the upper terms on counts I and V (11 years and 6 years respectively), but stayed them pursuant to Penal Code section 654. (Further section references are to the Penal Code unless otherwise specified.)
In an unpublished opinion (People v. Hernandez (Apr. 8, 2008, C051927)), this court affirmed defendants conviction on count II, but reversed his convictions on counts I (attempted voluntary manslaughter) and V (participating in a criminal street gang), and also reversed enhancements relating to counts I and II. The attempted voluntary manslaughter conviction was reversed because, except for a codefendants statement that was improperly admitted against defendant, there was insufficient evidence of intent to kill. The street gang conviction and enhancement were reversed due to instructional error; however, because they were supported by sufficient evidence, the matter was remanded to the trial court for possible retrial on count V and on the street gang enhancement as to count II. Retrial on count I was barred. The remittitur issued on June 11, 2008.
Viewed in the light most favorable to the verdict on counts II and V, the evidence showed that defendant and at least three fellow Norteños, armed with baseball bats and other weapons, attacked an outnumbered group of Sureños and seriously injured one of them, Zeferino Valdez. The evidence did not establish that defendant personally beat Valdez.
On August 25, 2008, the prosecutor advised the trial court that the People would not retry count V and the gang enhancement on count II.
At the sentencing hearing on September 29, 2008, the trial court dismissed count V and the gang enhancement on the Peoples motion. After denying probation and rejecting defendants request for a lower-term sentence, the court imposed the four-year upper term on count II, doubled pursuant to the three strikes law. The court gave the following reasons for its sentence choice:
"The Court has read and considered the report and recommendation of the [p]robation [o]fficer. "[Defendant] is statutorily ineligible for probation. It will not be granted. "The Court does not want to minimize what [defendant] has done since he has been in prison. Certainly it appears that [defendant] may finally be turning his life around, and recognizing that the actions that he has taken outside of prison are ruining his life and probably the lives of people that he loves. And I dont want to minimize that. "But I also want to make it clear that this Courts obligation is to hold [defendant] accountable for what he did and the crime that he committed. And while I acknowledge that [defendant] has certainly done some good things in prison, there are two issues: one is holding him accountable for what he did before he entered prison; and the other is how he will conduct himself when he is released, which is really the issue that [defendant] has to deal with. "The suggestion was in the moving papers that the Court received from Counsel that the Court could consider those things of which [defendant] was no longer convicted. It should be made clear that the Court did not consider the gang activity in imposing sentence on Count II when it was imposed. It would have been [im]proper for the Court to consider the special allegation under 186.22[, subdivision] (b)(1) because the Court actually imposed a term for that as to Count II. "What the Court did consider was the fact that [defendant] has a prior conviction for second degree robbery in 1999. He had two parole violations stemming from that conviction in 2001 and 2002. The Court also considered the violence that was perpetrated at the time he committed this offense. "The Court did and does believe that the aggravated term for that single count is appropriate." (Italics added.)
DISCUSSION
Defendant contends that all three reasons the trial court gave for the upper term are invalid. This attack on the sentence is forfeited because defendant did not so object in the trial court. (People v. Scott (1994) 9 Cal.4th 331, 353.)
Defendant asserts, however, that we must address the claims of error because his trial attorney was ineffective for not raising them in the trial court. As we will explain, defendants attacks on his sentence lack merit; thus, his claim of ineffective assistance of counsel fails.
We review for abuse of discretion the trial courts sentencing decision, and we will affirm it unless the decision was arbitrary or irrational. (People v. Avalos (1996) 47 Cal.App.4th 1569, 1582.) A single valid aggravating factor justifies the upper term. (People v. Osband (1996) 13 Cal.4th 622, 728.)
In defendants view, the courts first reason for imposing the upper term for the felony assault — that defendant had a prior conviction for robbery — was improper because the court doubled the term pursuant to the three strikes law based on the prior robbery conviction. According to defendant, using the robbery conviction to both impose the upper term and double that term is an impermissible dual use of facts. He is wrong.
"When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court. . . . [T]he court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law." (§ 1170, subd. (b); italics added.)
When exercising his or her "discretion in selecting one of the three authorized prison terms referred to in section 1170(b), the sentencing judge may consider circumstances in aggravation or mitigation, and any other factor reasonably related to the sentencing decision." (Cal. Rules of Court, rule 4.420(b); further references to rule are to the California Rules of Court.) Circumstances in aggravation include the fact that a defendants crime "involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness"; the fact that the defendant "has engaged in violent conduct that indicates a serious danger to society"; the fact that the defendant has served a prior prison term; and the fact that the defendants prior performance on parole was unsatisfactory. (Rule 4.421(a)(1), (b)(1), (b)(3), (b)(5).)
"For purposes of [the three strikes law], and in addition to any other enhancement or punishment provisions which may apply, the following shall apply where a defendant has a prior felony conviction: [¶] (1) If a defendant has one prior felony conviction that has been pled and proved, the determinate term . . . shall be twice the term otherwise provided as punishment for the current felony conviction." (§ 667, subd. (e)(1); italics added.)
The fact that the defendant had served a prior prison term for robbery is a circumstance in aggravation. (Rule 4.421(b)(3).) Thus, the court could properly use defendants robbery conviction to impose the upper term. (People v. Black (2007) 41 Cal.4th 799, 816.)
The three strikes law (§ 667, subds. (b)-(i)) is not an enhancement under section 1170, subdivision (b). It is a separate sentencing scheme that applies automatically where a defendant has at least one prior serious felony conviction and the trial court does not strike it. (People v. Garcia (2001) 25 Cal.4th 744, 757; People v. Nobleton (1995) 38 Cal.App.4th 76, 81.) Thus, the three strikes law required the court to double the term (whether upper, lower, or middle) for defendants present conviction. Consequently, when it simultaneously imposed the upper term on the robbery conviction and doubled that term under section 667, subdivision (e)(1), the court did not fall foul of the prohibition against the dual use of facts in sentencing.
Defendant also contends the trial court abused its discretion by using "the violence that was perpetrated at the time [defendant] committed this offense" to impose the upper term. According to defendant, perpetrating violence is an element of assault by force likely to produce great bodily injury; thus, its use to aggravate defendants sentence for that offense violates rule 4.420(d), which provides: "A fact that is an element of the crime upon which punishment is being imposed may not be used to impose the upper term." We need not reach this contention because we have already ruled (1) the trial court properly used defendants robbery conviction to aggravate his sentence, and (2) a single aggravating factor justifies the upper term (People v. Osband, supra, 13 Cal.4th at p. 728).
In any event, assault by means of force likely to produce great bodily injury may be committed without actual violence. "Punishment under section 245, subdivision (a), is directed at the force used, and it is immaterial whether the force actually results in any injury. The focus is on force likely to produce great bodily injury." (People v. Parrish (1985) 170 Cal.App.3d 336, 343.) Defendant took part in a group beating that seriously injured a victim. Whether as a direct perpetrator or an aider and abettor, he was thus engaged in the perpetration of violence. This fact was a valid circumstance in aggravation, and the trial court could apply it without making improper dual use of facts. (Rule 4.421(a)(1), (b)(1).)
Finally, defendant contends that the trial courts use of his parole violations to aggravate his sentence violated Cunningham v. California (2007) 549 U.S. 270 (hereafter Cunningham) because a jury trial was required to decide the validity of that factor before it could be used to impose the upper term. But by the time of the resentencing in this case, the Legislature had changed the law in response to Cunningham. (Stats. 2007, ch. 3, enacting Sen. Bill No. 40 (2007-2008 Reg. Sess.).) As amended, the law now provides (1) the middle term is no longer the presumptive term absent aggravating or mitigating facts found by the trial judge, and (2) a trial judge has the discretion to impose an upper, middle, or lower term based on reasons he or she states. (§ 1170, subd. (b).) Prior unsatisfactory performance on parole is a proper circumstance in aggravation (Rule 4.421(b)(5)); therefore, defendants contention fails.
Because defendants present objections to the trial courts sentencing lack merit, trial counsel was not ineffective for failing to raise these objections. (People v. Cunningham (2001) 25 Cal.4th 926, 1038.)
DISPOSITION
The judgment is affirmed.
We concur:
HULL, J.
CANTIL-SAKAUYE, J.