Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. BA307821, Michael M. Johnson, Judge. Affirmed with modifications; remanded for resentencing.
Marcia R. Clark, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels and A. Scott Hayward, Deputy Attorneys General, for Plaintiff and Respondent.
TURNER, P. J.
I. INTRODUCTION
Defendant, Jose Jesus Perez, appeals from his conviction for felony driving under the influence of alcohol. (Veh. Code, §§ 23152, subd. (a), 23550.) Defendant admitted that he was previously convicted of three violations of Vehicle Code section 23152, subdivision (b) and once of violating Vehicle Code section 23152, subdivision (a). Defendant further admitted that he had previously served a prison term. (Pen. Code, § 667.5, subd. (b).) The trial court found that defendant was a habitual driving under the influence offender. (Veh. Code, § 23550, subd. (b).) Defendant argues that the trial court improperly imposed the upper term and used the same facts to designate the crime as a felony and impose the upper term. Defendant also argues he was denied effective assistance of counsel. The Attorney General argues that additional fines and penalties should have been imposed. We affirm but order the imposition of a mandatory fine, penalty assessments, the state surcharge, and the state court construction penalty.
II. FACTUAL BACKGROUND
We view the evidence in a light most favorable to the judgment. (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Elliot (2005) 37 Cal.4th 453, 466; Taylor v. Stainer (9th Cir. 1994) 31 F.3d 907, 908-909.) While driving on the freeway on August 17, 2006, defendant veered toward the patrol car of California State Highway Patrol Officer Robert Holtz. Officer Holtz was forced to brake suddenly. Defendant was stopped for unsafe lane change. Defendant was given various field sobriety tests based on a strong odor of alcohol, bloodshot eyes, and slow, slurred speech. Thereafter, two breath tests administered to defendant registered a blood alcohol level of .135 and .123. Defendant was placed under arrest for driving under the influence of alcohol. Defendant refused to take either a blood or additional breath test.
III. DISCUSSION
A. Sentencing
1. Imposition of the upper term
a. no constitutional violation occurred
Imposition of the upper term did not violate any of defendant’s constitutional rights. Citing Cunningham v. California (2007) ___ U.S. ___, ___, [127 S.Ct. 856, 863-864] defendant argues he was improperly sentenced to the upper term on the basis of factual determinations not found by a jury. In the recent case of People v. Black (2007) 41 Cal.4th 799, 805-824, the California Supreme Court examined the imposition of an upper term under the state determinate sentencing law in light of Cunningham v. California, supra, ___ U.S. ___ [127 S.Ct. at pp. 863-864]. Our Supreme Court held: “[A]s long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi [v. New Jersey (2000) 530 U.S. 466] and its progeny, any additional fact finding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to jury trial.” (People v. Black, supra, 41 Cal.4th at p. 812, original italics.) The Black court further held: “It follows that imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (People v. Black, supra, 41 Cal.4th. at p. 816.)
In this case, defendant had sustained four prior driving under the influence convictions between the years 2002 and 2005 within the meaning of Vehicle Code sections 23550 and 23550.5 and had served a prior prison term for evading an officer. In imposing the upper term, the trial court noted: “I agree that [defendant] can use treatment, but until he makes up his mind to stop drinking, he’s a very grave danger to everyone on the road. [¶] . . . [¶] He will be sentenced to four years in state prison. That is the high term of three years, because of the conviction and the prior [driving under the influence] findings. [¶] The basis for that is his record is extremely serious. He had a conviction for evading the police in June of 2005. I have no information as to whether alcohol was involved in that, but it’s likely. [¶] He’s had four [driving under the influence’s] since January 2002, actually, five with the current conviction. He’s had five other misdemeanor driving offenses. That also raise suspicion about use of alcohol, but even by themselves, whether there was no alcohol involved, it raises very serious issues about his driving. [¶] The other factors in aggravation is [sic] he was on parole, recently on parole, at the time of his arrest in this case. [¶] Also, he refused a chemical test, and he was driving without a valid license. All of those are factors in aggravation. There are no factors in mitigation.” The trial court relied upon defendant’s admission and prior convictions in imposing the upper term. No constitutional violation is present. (People v. Black, supra, 41 Cal.4th at p. 816.)
b. alleged violation of state sentencing law
Any violation of state sentencing law has been forfeited and is harmless. Defendant argues that the trial court’s reliance on his prior prison term and three of his four prior convictions for driving under the influence constituted an improper “dual use” of facts. Defendant reasons the Penal Code section 667.5, subdivision (b) enhancement cannot be considered as an aggravating factor to impose the upper term. (Pen. Code, § 1170, subd. (b).) Defendant argues that the three prior driving under the influence convictions necessarily qualified defendant for the instant felony conviction pursuant to Vehicle Code section 23550 and likewise may not be considered as aggravating factors to impose the upper term under state law. (Calif. Rules of Court, rule 4.420(d) [“A fact that is an element of the crime may not be used to impose a greater term”].)
To begin with, these state law contentions have been forfeited. (People v. Scott (1994) 9 Cal.4th 331, 351; People v. Neal (1993) 19 Cal.App.4th 1114, 1117-1124.) However, even if we consider only defendant’s admission as to his fourth under the influence driving conviction as an aggravating circumstance, that factor alone constitutes at least one factor in aggravation. Further, the trial court relied upon the following facts: defendant was on parole at the time of his arrest; defendant had committed five other misdemeanors—all involving operating a motor vehicle; he refused to undergo a chemical test; and he was driving without a license at the time of his arrest. These facts were independent of his prior convictions. Moreover, the trial court found there were no mitigating factors. In the absence of any mitigating circumstances, any purported error was harmless. (People v. Price (1991) 1 Cal.4th 324, 492 [“When a trial court has given both proper and improper reasons for a sentence choice, a reviewing court will set aside the sentence only if it is reasonably probable that the trial court would have chosen a lesser sentence had it known that some of its reasons were improper.”]; People v. Cruz (1995) 38 Cal.App.4th 427, 433 [“A single factor in aggravation will support imposition of an upper term”].)
2. Alleged ineffective assistance of counsel
There is no merit to defendant’s ineffective assistance of counsel contention. Our standard of review was specified by the Supreme Court as follows: ‘“In order to demonstrate ineffective assistance, a defendant must first show counsel’s performance was deficient because the representation fell below an objective standard of reasonableness under prevailing professional norms. (Strickland v. Washington (1984) 466 U.S. 668, 687-688.) Second, he must show prejudice flowing from counsel’s performance or lack thereof. Prejudice is shown when there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. (In re Avena (1996) 12 Cal.4th 694, 721.)’ (People v. Williams (1997) 16 Cal.4th 153, 215.) [¶] Where ‘there was no sound legal basis for objection, counsel’s failure to object to the admission of the evidence cannot establish ineffective assistance.’ (People v. Cudjo (1993) 6 Cal.4th 585, 616.) . . . “In order to prevail on [an ineffective assistance of counsel] claim on direct appeal, the record must affirmatively disclose the lack of a rational tactical purpose for the challenged act or omission.” (People v. Ray (1996) 13 Cal.4th 313, 349.)’ (People v. Williams, supra, 16 Cal.4th at p. 215.)” (People v. Majors (1998) 18 Cal.4th 385, 403.) In terms of the failure to object contention raised by defendant, the Supreme Court has held: ‘“Failure to object rarely constitutes constitutionally ineffective legal representation. . . .’ (People v. Boyette (2002) 29 Cal.4th 381, 424.)” (People v. Huggins (2006) 38 Cal.4th 175, 206.) In the present case, there is no explanation for the failure to object. Moreover, there was no reasonable probability of a different result had an objection been interposed.
B. Fines, Penalties, Fees, And Surcharges
1. Vehicle Code section 23649, subdivision (a) fine
The trial court imposed a $100 alcohol fund fine pursuant to Vehicle Code section 23649, subdivision (a). However, the trial court was obligated to impose penalty assessments pursuant to Penal Code section 1464, subdivision (a) in the amount of $100 and Government Code section 76000, subdivision (a). (People v. Talibdeen (2002) 27 Cal.4th 1151, 1153; People v. Martinez (1998) 65 Cal.App.4th 1511, 1519.) In addition, the trial court was obligated to impose a $20 state surcharge pursuant to Penal Code section 1465.7, subdivision (a). (People v. McCoy (Nov.14, 2007, B198803) __ Cal.App.4th __, __-__; People v. Taylor (2004) 118 Cal.App.4th 454, 456-457.) Further, defendant must pay a $30 state court construction penalty pursuant to Government Code section 70372, subdivision (a). (People v. McCoy, supra, __ Cal.App.4th at pp. __-__; People v. Taylor, supra, 118 Cal.App.4th at pp. 458-459.)
Penal Code section 1464, subdivision (a) provides in pertinent part, “[T]here shall be levied a state penalty, in an amount equal to ten dollars ($10) for every ten dollars ($10) or fraction thereof, upon every fine, penalty, or forfeiture imposed and collected by the courts for criminal offenses, including all offenses . . . .”
Government Code section 76000, subdivision (a) provides in pertinent part, “In each county there shall be levied an additional penalty of seven dollars ($7) for every ten dollars ($10) or fraction thereof which shall be collected together with and in the same manner as the amounts established by Section 1464 of the Penal Code, upon every fine, penalty, of forfeiture imposed and collected by the courts for criminal offenses, including all offenses involving a violation of the Vehicle Code . . . .”
Penal Code Section 1465.7, subdivision (a) provides, “A state surcharge of 20 percent shall be levied on the base fine used to calculate the state penalty assessment as specified in subdivision (a) of Section 1464.”
2. Vehicle Code section 23550, subdivision (a) fine
The trial court designated defendant’s drunk driving offense as a felony and found him to be a habitual traffic offender pursuant to Vehicle Code sections 23550 and 23550.5. Vehicle Code section 23550, subdivision (a) provides in pertinent part, “If a person is convicted of a violation of Section 23152 and the offense occurred within 10 years of three or more separate violations of . . . Section 23152 . . . that resulted in convictions, that person shall be punished by imprisonment in the state prison . . . and by a fine of not less than three hundred ninety dollars ($390) nor more than one thousand dollars ($1,000).” The trial court should have imposed a Vehicle Code section 23550, subdivision (a) fine. Upon issuance of the remittitur, the trial court is to: select an amount of the Vehicle Code section 23550, subdivision (a) fine; impose the Penal Code section 1464, subdivision (a) and Government Code section 76000, subdivision (a) penalty assessments; impose the Penal Code section 1465.7, subdivision (a) state surcharge; and impose the state court construction penalty pursuant to Government Code section 70372, subdivision (a).
3. Court security fee
Penal Code section 1465.8, subdivision (a)(1) provides for a mandatory court security fee of $20 on every conviction for a criminal offense, including traffic offenses. (People v. Schoeb (2005) 132 Cal.App.4th 861, 865-866.) The trial court’s failure to impose the Penal Code section 1465.8, subdivision (a)(1) fine is a jurisdictional error that we can correct in the first instance on appeal. (People v. Talibdeen, supra, 27 Cal.4th at pp. 1153-1154; People v. Smith (2001) 24 Cal.4th 849, 853.) The trial court is to actively and personally insure the clerk accurately prepares a correct amended abstract of judgment which reflects the modifications in the judgment we have ordered. (People v. Acosta (2002) 29 Cal.4th 105, 109, fn. 2; People v. Chan ((2005) 128 Cal.App.4th 408, 425-426.)
IV. DISPOSITION
The judgment is modified to reflect the imposition of: a $100 Penal Code section 1464, subdivision (a) penalty assessment; a $70 Government Code section 76000, subdivision (a) penalty assessment; a $20 state surcharge pursuant to Penal Code section 1465.7, subdivision (a); a $30 Government Code section 70372, subdivision (a) state court construction penalty; and a $20 Penal Code section 1465.8, subdivision (a)(1) court security fee. The matter is remanded to allow the trial court to calculate the Vehicle Code section 23550, subdivision (a) fine and impose the additional penalty assessments, the state surcharge, and the state court construction penalty.
Following resentencing, the superior court clerk shall forward a corrected copy of the abstract of judgment reflecting these additional fines, penalties, and surcharges to the Department of Corrections and Rehabilitation. The judgment is affirmed in all other respects.
We concur: ARMSTRONG, J., KRIEGLER, J.