Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CM028152
Retired Associate Justice of the Court of Appeal, Third Appellant District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
In October 2007, defendant Tommy Lee Schmitz, driving under the influence of alcohol, collided with another vehicle, killing one of his passengers and injuring four other people. Defendant pleaded no contest to gross vehicular manslaughter while intoxicated and causing injury while driving with a blood-alcohol content of .08 percent. He also admitted three prior prison terms and that he caused great bodily injury to multiple victims. Consistent with his plea, defendant was sentenced to 17 years in state prison. Defendant appeals his sentence. We shall affirm.
BACKGROUND
Driving at an excessive rate of speed, defendant attempted to pass another vehicle by moving into a lane of oncoming traffic. In doing so, defendant collided head on with another vehicle. On impact, one of defendant’s passengers was ejected from the vehicle and died instantly. Four others, including a mother and her minor child, were injured in the collision. Defendant was arrested; a blood test showed his blood-alcohol content to be .11 percent.
Defendant was subsequently charged with gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a) [count 1]), driving under the influence causing injury (Veh. Code, § 23153, subd. (a) [count 2]), and driving with a .08 percent blood-alcohol content causing injury (Veh. Code, § 23153, subd. (b) [count 3]). It was further alleged as to counts 2 and 3 that defendant caused bodily injury to more than one victim and personally inflicted great bodily injury to three victims (Veh. Code, § 23558; Pen. Code, § 12022.7, subd. (a)); it was also alleged that defendant served three prior prison terms (Pen. Code, § 667.5, subd. (b)).
In exchange for dismissal of the remaining charges and enhancements, defendant pleaded no contest to counts 1 and 3. Defendant also admitted three prior prison terms and that his crime resulted in great bodily injury to three victims. Defendant agreed in writing and in open court that, as a result of his plea, the maximum sentence he may serve was 17 years in state prison.
“[Prosecutor]: . . . He will also be admitting three prior prison terms which will make his exposure 17 years by the calculation that [defense counsel] and I have come to.
“THE COURT: [Defendant], you’ve heard all of the discussion?
“DEFENDANT: Yes, ma’am, I have.
“THE COURT: And do you understand that by pleading today that’s the outside exposure that you might have and that [defense counsel] is of the opinion that this plea may constitute two strikes? Do you understand that?
“THE DEFENDANT: Yes, ma’am.”
The trial court then sentenced defendant to an aggregate term of 17 years in state prison. The trial court imposed the upper term of three years in state prison on count three, the principal term, to which the court added another three years for each great bodily injury enhancement. The court explained its decision to impose the upper term as follows:
“Circumstances in aggravation outweigh circumstances in mitigation in that the crime involved great bodily injury, defendant’s priors are numerous, defendant has served a prior prison term, defendant was on parole when the offense occurred, defendant’s prior performance on probation and parole was unsatisfactory, and the crime involved a great threat of danger to the public at large. Circumstances in mitigation are that the defendant voluntarily acknowledged guilt.”
On count one, the subordinate count, the court imposed one-third the upper term of two years, to run consecutively to the sentence imposed on count three. The court explained the “consecutive order is due to the fact that one or more of the crimes involved multiple victims.”
DISCUSSION
I. Consecutive Terms
In his opening brief, defendant claimed the trial court erred in imposing consecutive terms because, in doing so, the trial court relied on the fact that defendant’s crimes involved multiple victims, a fact which had already been used to enhance his sentence. This, defendant argued, was an unlawful sentence under California Rules of Court, rule 4.425(b)(2), which prohibits the dual use of an aggravating factor. Accordingly, he claimed the issue was preserved for appeal despite counsel’s failure to raise an objection in the trial court.
In his reply brief, defendant claims his argument is only that the trial court abused its discretion in sentencing him to consecutive terms. Thus, he claims, he does not need a certificate of probable cause to raise the issue on appeal. Defendant’s effort to recharacterize his claim in his reply brief is not well taken. (See Garcia v. McCutchen (1997) 16 Cal.4th 469, 482, fn. 10 [arguments raised for the first time in a reply brief may be deemed waived absent a showing of good cause].) Defendant’s claim fails under either argument.
Defendant failed to object to the imposition of consecutive terms in the trial court. He has thus forfeited a claim on appeal that the trial court abused its discretion in setting consecutive terms. (People v. Scott (1994) 9 Cal.4th 331, 354.) Having agreed to the maximum allowable term of 17 years in exchange for the dismissal of pending charges, defendant also is precluded from challenging his sentence as “unauthorized” or “unlawful” because he failed to obtain a certificate of probable cause. (People v. Cuevas (2008) 44 Cal.4th 374, 383-384.) Defendant’s claim fares no better as a claim for ineffective assistance of counsel.
Defendant’s sentence was enhanced three times because defendant caused great bodily injury to three different victims. Defendant’s sentence was not separately enhanced because he injured multiple victims; that allegation under Vehicle Code section 23558 was dismissed as part of the plea bargain. Consequently, the court properly relied on the “multiple victims” factor in imposing consecutive terms and there was no basis for counsel to object.
II. Upper Term
Relying on Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856],defendant also contends the trial court violated his Sixth and Fourteenth Amendment rights by imposing the upper term without submitting the factors to a jury.
Defendant was sentenced on February 2, 2008, almost one year after the Legislature amended section 1170, subdivision (b), to provide that “[w]hen 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. . . . The court shall select the term which, in the court’s discretion, best serves the interest of justice. The court shall set forth on the record the reasons for imposing the term selected . . . .” (Stats. 2007, ch. 3, § 2 (SB 40), eff. March 30, 2007.)
The Sixth Amendment issue identified in Cunningham has been remedied by the amendment of section 1170, subdivision (b). Under the new sentencing scheme, the choice of the sentencing term now rests within the sole discretion of the trial court. (§ 1170, subd. (b).) There is no longer a presumptive middle term and the sentencing court is free to exercise its discretion within the range. As a result, a trial court may sentence a convicted defendant to the high term without obtaining additional factfinding by the jury. (See People v. Sandoval (2007) 41 Cal.4th 825, 852 (Sandoval).)
The trial court was not required to express findings of fact in aggravation or to weigh aggravating and mitigating factors. All that was required was a statement of reasons for the term chosen. As part of selecting the appropriate prison term, the trial court was authorized to obtain from any evidence in the record circumstances in aggravation such as those listed in rule 4.421 of the California Rules of Court. (Cal. Rules of Court, rule 4.420(b).) Such circumstances in aggravation include: (1) defendant was on parole when the crime was committed (Cal. Rules of Court, rule 4.421(b)(4)); (2) defendant’s prior performance on parole or probation was unsatisfactory (Cal. Rules of Court, rule 4.421(b)(5)); and (3) defendant’s numerous prior convictions (Cal. Rules of Court, rule 4.421(b)(3)).
Our review of the trial court’s decision is now limited to determining whether the trial court abused its discretion by imposing the upper term. (See People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 976-978.)
We agree the trial court could not use the following as a basis for its decision to impose the high term: (1) that the defendant caused great bodily injury to his victims, or (2) that he served prior prison terms. These facts, admitted by defendant, already had been used to enhance his sentence. (Pen. Code, § 1170, subd. (b); Cal. Rules of Court, rule 4.420 (b).)
Nevertheless, the probation report, upon which the trial court relied, catalogued defendant’s lengthy history with the criminal justice system, including eight parole violations, two probation violations, 10 prior convictions, and the fact that defendant was on parole when he committed the current crime. This evidence presents more than sufficient grounds on which the trial court could base its decision to impose the upper term. (See People v. Black (2007) 41 Cal.4th 799, 815 [a single aggravating factor is sufficient to impose the upper term].)
Defendant attempts to eviscerate those aggravating factors on which the trial court properly relied in choosing the upper term. First, defendant contends the trial court was prohibited from considering his prior performance on probation and/or parole as a basis for imposing the upper term. Broken down, defendant’s argument is: (1) the trial court must look to defendant’s record of prior convictions and prison terms in order to asses his prior performance on parole and/or probation; and (2) the trial court was precluded from relying on defendant’s prior prison terms in imposing the upper term because defendant’s sentence was enhanced based on his prior prison terms. Defendant cites no authority for this argument, which we find unpersuasive.
Defendant also argues that: “Notwithstanding Black II, Sandoval, and the sentencing changes made by Senate Bill 40, California DSL still consists of only three possible sentences -- midterm, upper and lower, and judicial fact-finding is still required to impose an upper or lower term. Appellant submits that if a court found neither aggravating nor mitigating circumstances, it would impose the midterm. . . . Ergo [sic], there is no change in the manner in which an upper term is arrived at, the midterm remains the sentence absence [sic] judicial fact-finding. California’s Determinate Sentencing law still violates a defendant’s Sixth Amendment right to have a jury determine all facts which increases his/her penalty beyond the statutory maximum.” The Supreme Court found otherwise. (Sandoval, supra, 41 Cal.4th at p. 852.)
Defendant may disagree with the Supreme Court’s decision in Sandoval, but this court is bound by it. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) We find no abuse of discretion.
III. Ineffective Assistance of Counsel
Defendant also claims he was denied effective assistance of counsel because “while informing the court at the time of the plea that [defendant] was not stipulating to an upper term and that he expected the court to use its discretion [], counsel did nothing to assist the court in the proper use of its discretion;” and (2) “[t]here simply is no possible tactical reason for trial counsel not to have objected . . . to an improper aggravating factor.”
Defendant has failed to show how counsel’s failure to vociferously argue against the upper term or object to “an improper aggravating factor,” resulted in prejudice, particularly in light of the number of aggravating factors properly considered by the trial court in selecting the upper term. (See In re Avena (1996) 12 Cal.4th 694, 721 [defendant must show prejudice resulting from counsel’s performance or lack thereof].) Accordingly, we reject this claim.
DISPOSITION
The trial court judgment is affirmed.
We concur: NICHOLSON, Acting P. J., ROBIE, J.