Opinion
D074305
10-17-2019
THE PEOPLE, Plaintiff and Respondent, v. DAVID JOHNSON, Defendant and Appellant.
Pauline E. Villanueva, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Robin H. Urbanski and Brendon W. Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCN383629) APPEAL from a judgment of the Superior Court of San Diego County, David J. Danielsen and Daniel B. Goldstein, Judges. Affirmed. Pauline E. Villanueva, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Robin H. Urbanski and Brendon W. Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
Defendant David Johnson appeals his conviction on one count of gross vehicular manslaughter. Johnson challenges the trial court's denial of probation. He also contends that his trial counsel rendered ineffective assistance in failing to object to the aggravating factors on which the trial court relied in imposing an upper term sentence of 10 years in prison. Finally, Johnson contends that the trial court erred in imposing three separate court security fees under Penal Code section 1465.8 because although he was charged with three offenses, two of the offenses were dismissed and he was convicted of only a single count.
Johnson pled guilty to three charges—gross vehicular manslaughter while intoxicated, driving under the influence of alcohol and causing injury, and driving with a measurable blood alcohol level causing injury. The trial court subsequently dismissed the latter two counts.
Further statutory references are to the Penal Code unless otherwise indicated.
We reject Johnson's first two contentions. The People concede that the trial court should not have imposed three court security fees, and we agree. We therefore strike two of the court security fees, leaving one remaining, and affirm the judgment as modified.
II.
FACTUAL AND PROCEDURAL BACKGROUND
On March 1, 2018, the San Diego County District Attorney filed a three-count felony complaint charging Johnson with gross vehicular manslaughter while intoxicated (§ 191.5, subd. (a); count 1), driving under the influence of alcohol causing injury (Veh. Code, § 23153, subd. (a); count 2); and driving with a measurable blood alcohol level causing injury (Veh. Code, § 23153, subd. (b); count 3). As to counts 2 and 3, it was alleged that Johnson personally inflicted great bodily injury (§ 12022.7, subd. (a)), proximately caused bodily injury or death to more than one victim (Veh. Code, § 23558), and that Johnson had a blood alcohol concentration of 0.15 percent or more (Veh. Code, § 23578).
Johnson pled guilty to all counts and admitted the truth of all enhancement allegations. The factual basis for Johnson's plea, as stated in the plea form, was as follows:
"I knowingly and unlawfully killed someone without malice aforethought while driving a vehicle in violation of VC23153 and the killing was the result of an unlawful act (not amounting to a felony) which resulted in death. I also drove under the influence of alcohol causing injury to more than one person and my blood alcohol was a .15 or higher."
Johnson also admitted that his blood alcohol concentration level at the time of the offense was approximately .24 percent, and that in addition to causing one victim's death, he inflicted injury on two other individuals.
The trial court dismissed counts 2 and 3 in light of Johnson's conviction on count 1.
At sentencing, the trial court said,
"No sentence is fair, ever. It's not a question of fairness. The criminal justice system is not built on fairness, and I'm no more fair or no less fair than anybody else. What I can do is I can balance equities. And on one hand, I see the defendant, who has - - I'm
going to say virtually - - virtually no criminal history except there's a prior DUI. And it's not an .08. It's above an .08.
"He also - - I was trying to calculate this, but I don't have a good timeframe to calculate it as you all were talking. But if he is up at a .24 - - I mean, if he was to consume all the alcohol immediately, it would take 12 drinks and not burn anything off, but that is physically impossible; right? he has absorption rates and burn-off rates. So, you know, a good estimate is 20 drinks.
"And so I have to balance that against also an individual, Sergeant Morgan, who served this country. . . . [¶] . . . [¶]
"And so I look at what Sergeant Morgan does, and he is deployed. He served in Syria and didn't get killed. And he comes home here, and he got killed by somebody who['s] just boozing it up all day. That's the only way to get there. And that's just horrid. It's just awful. This is just an awful case.
"The statutory requirements are actually that the defendant is probation eligible due to the nature of the offense. The People have to dismiss counts 2 and 3; I get that. I have to go through these calculations. So he is actually statutorily eligible for probation. He is not suitable for probation, though, due to the nature of the offense. He had a prior grant of probation, but a supporting issue for probation would be that he is remorseful.
"The circumstances supporting a denial of probation completely outweigh the reasons to grant probation. So I'm going to determine that the defendant is not suitable for probation.
"As to the aggravants versus the mitigants, it is true that the defendant admitted at the earliest possible stage that he was guilty. And I'm going to assume he is doing that to preserve the family so they don't have to go through it.
"But this is not a case that is determinative of what - - of what the defendant would put the victims through. By that I mean, if this was a sexual assault case or a close murder or some type of case where the victims could be harmed by going through the trial, then I accept the plea or somebody else accepts the plea and I do the sentencing;
the act of remorse and that the defendant should receive some benefit of it for not making the family go through it.
"Here, the People did not allege murder, and I have no quarrel with that. But it's one of these cases - - it is what it is, that whether the defendant pleads guilty at an early stage or is convicted at trial, at a .24, with a prior DUI, there just isn't an issue to litigate. There's no issue of identity. There's no issue of: was he under the influence for the purpose of driving? . . . There's just nothing that exists, 'cause he is guilty; right?
"[¶] . . . [¶]
"His prior performance on probation was satisfactory, and the probation department lists that the possible circumstances in aggravation are that the defendant's adult convictions are increasingly serious. The thing I'm most concerned about is the — this is a — it's a serious felony, but it's violent conduct.
"And, again, I come back to, that the defendant had to be drinking for a period of time and guzzling alcohol. And the second that — there's no question to me that he had the specific intent to start the car; right? To start a truck; right? Normally I call it a two-ton missile. Here, he is driving an F-250, which is really a four-ton bazooka; right? I mean, there's nothing going to survive being hit by that. It is just — it's just awful.
"So I look at that as an aggravant, that the type of vehicle he was driving, the amount of drinking he was doing, the fact that he got behind a wheel, that he has a prior DUI, and that he killed somebody. It's not only his [the victim's] moral stature, but [he] contributed to our society more than most of the people in this courtroom could, even if they tried.
"So that leads us to the number. I'm going to give him ten. That's the most I can give him, and that's what I'm going to do. It's just too awful of an offense."
The court sentenced Johnson to state prison for a term of 10 years. Johnson filed a timely notice of appeal.
III.
DISCUSSION
A. The trial court acted within its discretion in denying probation
Johnson contends that the trial court's denial of probation constituted an abuse of discretion because the court "failed to articulate a proper basis for its denial" and because the court "failed to give proper weight to the factors in support of a grant of probation." Specifically, Johnson asserts that the trial court erred in relying on the "nature of the offense" as a basis for denying probation because there is "[n]othing in the record [that] supports a finding that this particular offense was significantly more serious or egregious than other instances of the same crime." He further contends that "a proper consideration of the relevant factors—that is, excluding the inappropriate considerations laid out above—should weigh in favor of a grant of probation," in part, he suggests, because "the factors related to appellant himself suggest a reasonable likelihood of success on probation."
1. Additional background
In a sentencing brief, defense counsel requested that the trial court "give Mr. Johnson 365 days in custody and an opportunity at probation to prove that he can do so much more with his life." Defense counsel also argued against imposition of a ten-year prison sentence, which the prosecutor was requesting.
The probation department's report identified four factors that would support a grant of probation and three factors that would support a denial of probation. With respect to the factors supporting a grant of probation, the probation report noted that Johnson had performed well on a prior grant of probation; Johnson appeared willing to comply with probation conditions; Johnson had the ability to comply with the terms of probation, as indicated by his age, education, health, family background and employment; and Johnson appeared remorseful. With respect to the factors supporting a denial of probation, the probation report noted that Johnson had inflicted both physical and emotional injury upon all the victims and their families; Johnson appeared to be addicted to alcohol or "in serious danger of becoming addicted to alcohol"; and Johnson could be a danger to others if not imprisoned. The probation report indicated that Johnson had suffered a prior DUI conviction.
Based on these factors, the probation department recommended that Johnson be sentenced to state prison for a term of 10 years, eight months, comprised of the midterm of six years on count 1, a consecutive eight months on count 2, and a consecutive four years for the section 12022.7, subdivision (a) and Vehicle Code section 23558 enhancements.
At the sentencing hearing, the prosecutor agreed with the probation department's assessment that probation should be denied and requested that the trial court impose the maximum sentence. Defense counsel responded by requesting that the court "consider no more than the middle term."
The trial court determined that Johnson was not suitable for probation "due to the nature of the offense," and stated that "the circumstances supporting a denial of probation completely outweigh the reasons to grant probation."
2. Relevant legal standards
We review a trial court's decision to deny probation for an abuse of discretion. (People v. Carbajal (1995) 10 Cal.4th 1114, 1120-1121.) We will affirm a trial court's decision regarding probation as long as the record shows that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law. (People v. Carmony (2004) 33 Cal.4th 367, 378.)
"The decision to grant or deny probation requires consideration of all the facts and circumstances of the case." (People v. Birmingham (1990) 217 Cal.App.3d 180, 185.) California Rules of Court, rule 4.414 sets forth the criteria that the trial court should consider in deciding whether to grant probation. Rule 4.408(a) provides that a court may consider factors not listed in rule 4.414, provided that those factors are "reasonably related" to that decision. (People v. Weaver (2007) 149 Cal.App.4th 1301, 1313.) " 'The circumstances utilized by the trial court to support its sentencing choice need only be established by a preponderance of the evidence. [Citations.]' [Citation.] Accordingly, in determining whether a trial court abused its discretion by denying probation, we consider, in part, whether there is sufficient, or substantial, evidence to support the court's finding that a particular factor was applicable." (Ibid.)
Further rule references are to the California Rules of Court.
3. Analysis
As an initial matter, the People contend that Johnson has forfeited this argument by failing to object to the trial court's reasoning in denying Johnson's request that he be placed on probation.
We agree that Johnson has forfeited his contention regarding the trial court's assessment of the relevant factors in deciding whether to deny or grant Johnson probation. (See People v. Scott (1994) 9 Cal.4th 331, 356 ["complaints 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"].) Johnson complains about the manner in which the court exercised its discretion. Sentencing matters that may be forfeited include situations in which "the stated reasons allegedly do not apply to the particular case" and/or "the court purportedly erred because it double-counted a particular sentencing factor, misweighed the various factors, or failed to state any reasons or give a sufficient number of valid reasons." (Id. at p. 353.) It was incumbent on Johnson to raise these concerns with the trial court and to provide the court with an opportunity to address them; his failure to do so means that he forfeited his contention that the trial court abused its discretion with respect to the denial of probation. (See People v. Sperling (2017) 12 Cal.App.5th 1094, 1101 ["[A] defendant cannot remain mute while the trial court states its reasons for imposing a sentence and then on appeal claim that its statement of reasons was defective"].)
However, Johnson also contends that his attorney's failure to object to the trial court's reasons for denying probation constituted ineffective assistance of counsel. We will therefore consider the merits of Johnson's argument. (See People v. Williams (1998) 61 Cal.App.4th 649, 657 [addressing the merits of a claim, despite its forfeiture, because defendant asserted ineffective assistance of counsel].) We conclude that the trial court did not abuse its discretion in denying probation.
In denying probation, the trial court specifically mentioned the "nature of the offense" and then stated that the circumstances supporting the denial of probation outweighed the circumstances supporting the granting of probation. Rule 4.414, subdivision (a) includes as a factor related to the crime that a court may consider in deciding whether to grant or deny probation "[t]he nature, seriousness, and circumstances of the crime as compared to other instances of the same crime." Johnson argues that the trial court inappropriately relied on the nature of his offense because, he asserts, there is nothing in the record that supports the court's implicit finding that the offense in this case was sufficiently more serious or egregious than other instances of the same crime.
In particular, Johnson argues that the facts related to his crime are distinguishable from those addressed in People v. Weaver (2007) 149 Cal.App.4th 1301 (Weaver), in which an appellate court upheld a trial court's denial of probation for a defendant who pled guilty to gross vehicular manslaughter while intoxicated. (Id. at pp. 1307, 1339.) In Weaver, the defendant drove on the wrong side of the road at night with her headlights off. After she caused one accident and nearly caused another, she collided head-on with a car at approximately 80 to 90 miles per hour. The collision caused the death of one person in the other vehicle, and caused substantial injuries to a passenger in the vehicle. The defendant's blood-alcohol content at the time of a blood draw was .151 percent. A blood test also revealed the presence of cocaine in the defendant's system. (Id. at pp. 1307-1308.)
On appeal, the Weaver court determined that the trial court's reliance on the " 'horrific nature' " of the case as a factor in denying probation was supported by the evidence. (Weaver, supra, 149 Cal.App.4th. at pp. 1316-1317.) The appellate court stated, "The trial court implicitly concluded, and we cannot presume otherwise, that 'other instances' of section 191.5, subdivision (a) offenses do not involve the same egregious circumstances as in this case." (Id. at p. 1317)
Johnson argues that "[t]he facts of this case provide some significant differences" from the facts noted in Weaver, and suggests that these differences make his offense less egregious than the one at issue in Weaver. For example, he asserts that there is "no evidence he was driving at a significantly high rate of speed for the area or that he drove with his headlights off." (Fn. omitted.) He further argues that there is nothing in the record to suggest that he caused other accidents or that there were drugs in his system. While the particular facts of Johnson's case differ from the facts highlighted in Weaver, we reject the suggestion that these differences mean that the nature and seriousness of Johnson's case are not sufficiently different from other cases involving the same crime to permit the trial court to conclude that probation would not be an appropriate sentence. There are facts in this case from which the trial court could reasonably have concluded that Johnson's crime was particularly troubling. For example, Johnson had previously suffered a DUI conviction but nevertheless decided to consume a substantial amount of alcohol and get behind the wheel on the date of this offense. As a result of the prior conviction, Johnson had completed a 10-week alcohol class and thus understood the dangers of drinking and driving, as he told an officer in this case. Yet, even with his knowledge of the potentially horrible consequences of drinking and driving, Johnson consumed a substantial amount of alcohol—so much alcohol that he registered a .24 percent BAC— and then drove a truck. As the trial court pointed out, Johnson chose to drive a truck, which is significantly heavier than the average vehicle, and thus more likely to cause major damage to others in the event of a collision. For this reason, the court considered the truck to be a particularly harmful "weapon." Johnson proceeded to drive on the wrong side of the road at approximately 65 miles per hour and collided with two other vehicles—one a truck with two passengers in it and the other a motorcycle. The victims in the truck suffered serious injuries and incurred approximately $72,000 in medical and property damage bills. The driver of the motorcycle was pronounced dead at the scene. The trial court could have reasonably relied on the magnitude and breadth of the damage and injury that Johnson caused, as well as Johnson's prior DUI conviction and sentence, which made him uniquely aware of the potential dangers of his decisions regarding drinking and driving, to conclude that Johnson's crime was more egregious than other instances of the same crime.
Because we disagree with Johnson's contention that the trial court should not have relied on the "nature of the offense" in denying him probation, we also disagree with his further contention that a "proper" weighing of the appropriate factors would have resulted in a finding in favor of granting him probation. In effect, Johnson would have this court reweigh the various factors as issue, without consideration of the factor on which the trial court appears to have heavily relied—i.e., the "nature of the offense." We decline to do so. Inherent in the discretion granted to the trial court with respect to making decisions about granting or denying parole is the discretion to weigh various factors, including according different weights to different factors in the overall weighing process. "Sentencing courts have wide discretion in weighing aggravating and mitigating factors [citation], and may balance them against each other in qualitative as well as quantitative terms." (People v. Roe (1983) 148 Cal.App.3d 112, 119.) We see no abuse of the trial court's exercise of its discretion with respect to its decision to deny Johnson probation. B. Johnson has not demonstrated that trial counsel provided ineffective assistance in failing to object to the factors in aggravation on which the trial court relied in imposing an upper term sentence
Johnson contends that his trial counsel provided ineffective assistance in failing to object to the trial court's "use of inappropriate factors to impose the upper term." (Capitalization & boldface omitted.)
1. Additional relevant background
Defense counsel requested that the trial court place Johnson on probation, or, in the alternative, that the court impose "no more than [six] years in state prison," which would be equivalent to imposition of the midterm on count 1. The prosecutor requested imposition of an upper term sentence of 10 years.
In the probation report, the probation department noted the existence of two circumstances in mitigation: (1) that Johnson voluntarily acknowledged wrongdoing at an early stage and (2) that Johnson's prior performance on probation was satisfactory. The probation department identified three circumstances in aggravation: (1) that the crime involved great monetary value (over $72,000); (2) that Johnson engaged in violent conduct that indicated a serious danger to society, given that the circumstances of the offense involved him driving his vehicle after consuming alcohol despite having suffered a prior DUI; and (3) that Johnson's convictions as an adult were increasing in seriousness. After weighing these factors, the probation officer concluded that the "circumstances in aggravation are essentially equal in weight to the circumstances in mitigation" and suggested that the court impose the middle term of six years on count 1.
The probation department's report recommended a total sentence of 10 years 8 months, based on sentences proposed for other counts and enhancements.
At sentencing, the prosecutor argued that the circumstances weighed in favor of imposition of the upper term, while defense counsel argued that the circumstances warranted, at most, middle term.
The trial court began its sentencing discussion by noting that Johnson had suffered a prior DUI conviction and that his BAC in the present case—.24 percent—suggested that on the day of the collision, Johnson had consumed approximately 20 drinks. With respect to mitigating circumstances, the court found that Johnson had accepted responsibility at an early stage and that his prior performance on probation was satisfactory. With respect to aggravating circumstances, the trial court stated that it was most concerned about the fact that Johnson's conduct amounted to "violent conduct." Specifically, the court noted that Johnson, who had a prior DUI conviction, "had to be drinking for a period of time" on the day of the collision, and despite all of that drinking, he got into a Ford F-250 truck—which the trial court characterized as a "four-ton bazooka"—and killed someone. The court noted that "there's nothing going to survive being hit by that," and stated, "it's just awful." After considering these circumstances, the trial court imposed the upper term of 10 years in prison.
Johnson's counsel did not object to the trial court's reliance on the factors in aggravation.
2. Relevant legal standards
a. Ineffective assistance
To establish a claim of ineffective assistance of counsel, the defendant must show that counsel's performance was deficient in that it "fell below an objective standard of reasonableness," evaluated "under prevailing professional norms." (Strickland v. Washington (1984) 466 U.S. 668, 688 (Strickland); People v. Ledesma (1987) 43 Cal.3d 171, 216 (Ledesma).)
"We evaluate counsel's conduct with deference and "indulge a strong presumption that counsel's acts were within the wide range of reasonable professional assistance." (People v. Dennis (1998) 17 Cal.4th 468, 541.) " ' "[If] the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged[,] . . . unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation," the claim on appeal must be rejected.' [Citations.]" (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.) "A claim of ineffective assistance in such a case is more appropriately decided in a habeas corpus proceeding." (Id. at pp. 266-267.)
Even if counsel's performance is demonstrated to have been deficient, a defendant is entitled to relief only if he can also establish that he was prejudiced by counsel's deficient performance. (Strickland, supra, 466 U.S. at pp. 691-692; Ledesma, supra, 43 Cal.3d at p. 217.)
b. Standards related to a court's choice of the term of imprisonment
When a statute specifies three possible terms of imprisonment, the court is granted the discretion to choose the appropriate term, and may impose an upper term when the court determines that circumstances in aggravation outweigh circumstances in mitigation. (§ 1170, subd. (b).) In choosing the appropriate sentence, the trial court may consider "the record in the case, the probation officer's report . . . and statements in aggravation or mitigation submitted by the prosecution, the defendant, or the victim, or the family of the victim if the victim is deceased, and any further evidence introduced at the sentencing hearing." (§ 1170, subd. (b).)
The trial court's discretion is broad with respect to decision-making regarding the proper sentence. (People v. Sandoval (2007) 41 Cal.4th 825, 847.) California Rules of Court, rules 4.421 and 4.423 set forth a number of circumstances in aggravation and mitigation that a court may consider in deciding which of the three prison terms to choose. However, these sentencing criteria have no fixed mathematical values. (People v. Regalado (1980) 108 Cal.App.3d 531, 539.) In addition, the aggravating factors under rule 4.421 are not exclusive. In choosing the appropriate sentence, a court may rely on any other factor that it determines is "reasonably related to the sentencing decision" (rule 4.420(b)), including "[a]ny other factors statutorily declared to be circumstances in aggravation or which reasonably relate to the defendant or the circumstances under which the crime was committed" (rule 4.421(c)). "Neither section 1170 nor the California Rules of Court attempt to provide an inclusive list of aggravating circumstances. Thus, a trial court is free to base an upper term sentence upon any aggravating circumstance that (1) the court deems significant and (2) is reasonably related to the decision being made." (People v. Moberly (2009) 176 Cal.App.4th 1191, 1196.)
Under the relevant standards, "the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term." (People v. Black (2007) 41 Cal.4th 799, 813.)
3. Analysis
Johnson identifies a number of aggravating factors that he contends the trial court inappropriately relied on, and to which his defense attorney should have objected. For example, Johnson argues that his attorney should have objected to the trial court's reliance on the factor that Johnson's adult convictions were of "increasing seriousness," given that he had suffered only a single prior misdemeanor conviction for driving under the influence in 2005. Johnson also complains that his attorney should have objected to the trial court relying on the fact that Johnson had engaged in "violent conduct." According to Johnson, cases in which courts have applied this factor involve "either recidivism or a history of violent conduct, neither of which is present here." Johnson further argues that, to the extent the trial court "relied on the prosecution's argument that the victim was particularly vulnerable as a motorcyclist, this was also an inappropriate basis for aggravation." In addition, Johnson contends that there is "lack of evidence in the record to support the imposition of an aggravated sentence, based on the monetary value of the damage caused in the accident." According to Johnson, there is nothing in the facts of this case "that suggest[s] a 'worse' situation than that of any car accident resulting in property damage and injury, even death."
In considering the appropriate sentence for Johnson, the trial court expressed concern that Johnson, who had a prior DUI conviction and had been made aware of the risks of drinking alcohol and driving a vehicle, nevertheless consumed a significant amount alcohol throughout the day before getting into a "four-ton bazooka" and ultimately killing someone. Based on the trial court's comments, it appears that the court relied on the following factors in aggravation: (1) that Johnson had a prior DUI conviction; (2) that he had consumed a substantial amount of alcohol prior to driving in the present case; (3) that the vehicle he drove while extremely intoxicated was a large, exceptionally heavy truck, making the risk of harm significantly greater; and (4) that the resulting accident was egregious. Johnson nevertheless contends that "[n]one of these factors could properly be relied upon as aggravating factors" because these factors were elements of the crime (driving and causing the victim's death), or were based on speculation and assumptions (Johnson's driving a truck as opposed to another type of vehicle). He further contends that to the extent the trial court relied on the fact that the victim who was killed was a military veteran, this was improper because Johnson had no control over the identity of the victim.
We disagree with Johnson's contention that none of the aggravating factors that the trial court cited is appropriate. Although we agree that the fact that a victim died cannot be an aggravating circumstance in this case since one element of the offense is that the defendant's conduct resulted in another person's death, the main thrust of the court's comments concerning the aggravating circumstances involved the fact that Johnson had previously suffered a DUI conviction, and despite this, he engaged in significantly more egregious conduct on this occasion. The fact that Johnson's only criminal record involved driving while intoxicated demonstrated that Johnson had not learned from his prior DUI conviction and was not sufficiently rehabilitated by his prior contact with the criminal justice system. Further, Johnson's current offense was far more significant than his prior one; the court could thus reasonably conclude, as the probation report suggested, that an aggravating circumstance in this case was that Johnson's criminal convictions were of increasing seriousness.
Further, the trial court could properly rely on the particular circumstances of Johnson's offense and consider them to be factors in aggravation. Johnson's BAC was particularly high, registering as a .24 at the time the sample was taken. As the court noted, Johnson would have had to have consumed approximately 20 alcoholic drinks before getting into his truck. Although Johnson takes issue with the trial court's considering the fact that Johnson was driving a truck, as opposed to a different type of vehicle, as factor in aggravation, it is not reasonably disputable that large trucks like the one Johnson drove while intoxicated—i.e., a Ford F-250—are larger and heavier than most vehicles, and that a truck like the one Johnson was driving can cause far greater damage than other vehicles.
It is thus clear that the trial court properly relied on multiple relevant factors in aggravation, any one of which could have supported the trial court's imposition of the upper term. For this reason, we cannot conclude that if defense counsel had objected, the court would have chosen to impose a lesser term of imprisonment. (People v. Osband (1996) 13 Cal.4th 622, 728 [a single aggravating factor will support imposition of an upper term].) Defense counsel could have reasonably determined, as we have, that multiple aggravating factors on which the court relied were proper, and thus, that it would have been futile to object to the court's reliance on those factors in imposing the upper term. For these reasons, we reject Johnson's argument that his attorney's failure to object to the circumstances in aggravation relied on by the trial court to impose an upper term sentence on count 1 constituted ineffective assistance. C. The court security fees imposed with respect to the dismissed charges must be stricken
Johnson contends that the trial court erred in imposing three separate court security fees under section 1465.8. According to Johnson, the trial court should have imposed only a single court security fee because he suffered only one conviction. The People concede that Johnson is correct on this point.
Section 1465.8, subdivision (a)(1) states that "an assessment of forty dollars ($40) shall be imposed on every conviction for a criminal offense." Although Johnson pled guilty to three offenses, two of the counts were dismissed on the People's motion. Thus, Johnson was convicted of only a single count of gross vehicular manslaughter. The trial court's imposition of an aggregate $120 in court security fees under section 1465.8, which is comprised of three $40 assessments, was therefore erroneous. The court should have imposed a single court security fee of $40 for Johnson's conviction on a single count.
We therefore strike $80 in court security fees under section 1465.8 from the judgment. The abstract of judgment shall be amended to reflect the imposition of a single court security fee of $40. (See People v. Rader (2014) 228 Cal.App.4th 184, 200 [striking a section 1465.8 court security fee assessment after reversing judgment on a single count and remanding with directions for trial court to dismiss the count].)
IV.
DISPOSITION
The fees imposed pursuant to section 1465.8 with respect to the two counts that the court dismissed are stricken. The judgment is otherwise affirmed as modified.
The trial court is directed to prepare an amended abstract of judgment reflecting a single $40 court security fee pursuant to section 1465.8, and to forward a certified copy to the Department of Corrections and Rehabilitation.
AARON, J. WE CONCUR: BENKE, Acting P. J. O'ROURKE, J.