Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05F08040
HULL, J.Defendant Damon Wayne Wise was found guilty by a jury of attempted first degree robbery (Pen. Code, §§ 211, 664; further statutory references are to this code), first degree burglary (§ 459), assault with a deadly weapon (§ 245, subd. (a)(1)) and elder abuse. (§ 368, subd. (b)(1).) The jury also found allegations true that defendant knew or should have known the victim was age 65 or older (§ 667.9, subd. (a)) and that he inflicted great bodily injury on a person age 70 or older. (§§ 368, subd. (b)(2), 12022.7, subd. (c).) Probation was denied and defendant was sentenced to a term of nine years in state prison, consisting of an upper term of four years for assault with a deadly weapon plus a five-year enhancement for inflicting great bodily injury. Pursuant to section 654, the court imposed but stayed sentences on the remaining counts.
Defendant appeals, claiming the trial court violated the prohibition against dual use of facts at sentencing and that his upper term sentence violated the holding in Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856] (Cunningham). We affirm the judgment.
Facts and Proceedings
The 79-year-old victim, who lived alone in a trailer, was awakened at 2:30 a.m. by a noise outside. When the victim went outside to investigate, he saw two people, one of whom was swinging a club and said to him, “come and get it.” The victim returned inside his trailer and locked the door. The two suspects broke into the trailer and hit the victim numerous times with a club. One of the suspects asked the victim where his money was, and the other one encouraged the first suspect to keep hitting the victim. The victim ran out of the trailer and yelled for the police. When he returned to his trailer the next day, a shirt with money in it was missing.
The victim had difficulty identifying his assailants because the events occurred quickly and it was dark. However, the night before the incident, a witness who lived on the same street as the victim heard defendant and the codefendant talking about robbing “the old man.” Defendant and the codefendant then went outside, and the witness observed the codefendant attempting to affix a nail to a club or ax handle that looked similar to a club located inside the victim’s trailer after the attack. On the same night, the codefendant, in defendant’s presence, asked another individual whether he wanted to be involved with them in “break[ing] into somebody’s house and tak[ing] their cash.” Defendant later admitted to this individual that he had helped the codefendant commit the offense.
This was not the first time that defendant had targeted the victim. The manager of the victim’s mobile home park testified about an incident that occurred three days before the offense in which defendant hit the victim with a fence board. The victim testified about an incident in which defendant punched him in the face and another occasion when defendant took the victim’s grocery money out of his pocket while another individual held him down.
As a result of the assault, the victim required 13 staples for a cut on his head that was inflicted with a pocketknife, as well as facial cuts requiring stitches, a fractured sinus, a broken clavicle and a “smashed” bone in his arm.
According to the probation report, defendant, who was 18 years old at the time of the offenses, had no criminal record other than a juvenile adjudication for driving without a license, although there was another case pending against him involving the same victim.
The trial court denied probation, noting the “offense was a horrendous beating of a particularly vulnerable victim” and that defendant had “taunted [the victim] over the course of a number of days.” The court cited several aggravating factors: (1) the cruelty, viciousness and callousness of the offense; (2) the fact that defendant was armed with a weapon; (3) defendant’s denial of responsibility for the offense; and, (4) the victim’s vulnerability based not only on his age but also the time and place of the crime, which gave the victim “absolutely no opportunity or ability to defend himself.” The court found defendant’s youth and insignificant criminal record to be mitigating circumstances but concluded that the aggravating circumstances “clearly” outweighed those in mitigation and imposed the upper term.
Discussion
I
Dual Use of Facts
Defendant contends the matter must be remanded for resentencing because the trial court violated the prohibition against dual use of facts by relying on his use of a weapon to impose an upper term when this was an element of the underlying offense. Defendant has forfeited this argument by failing to raise it at sentencing. (People v. Scott (1994) 9 Cal.4th 331, 353; People v. de Soto (1997) 54 Cal.App.4th 1, 8.)
Moreover, even if the claim had not been forfeited, we would reject it. The trial court relied on several factors in addition to the use of a weapon when imposing the upper term, placing particular emphasis on the victim’s vulnerability. “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. Price (1991) 1 Cal.4th 324, 492.) Improper dual use of facts “‘does not necessitate resentencing if “[i]t is not reasonably probable that a more favorable sentence would have been imposed in the absence of the error.”’” (People v. Osband (1996) 13 Cal.4th 622, 728.) Accordingly, defendant’s claim that his attorney’s failure to object to the dual use of facts constituted ineffective assistance of counsel fails, as defendant has not demonstrated a reasonable probability he would have obtained a more favorable outcome had his attorney’s performance been different. (See People v. Jackson (1996) 13 Cal.4th 1164, 1217.)
II
The Upper Term
Defendant argues that an upper term sentence in his matter violated the holding in Cunningham, supra,549 U.S. 270 [166 L.Ed.2d 856].) We conclude that any error was harmless beyond a reasonable doubt.
In Blakely v. Washington (2004) 542 U.S. 296, 301, 303 [159 L.Ed.2d 403, 412, 413-414] (Blakely), the United States Supreme Court held that any circumstance other than the fact of a prior conviction that is relied on by a trial court to increase the penalty for a crime beyond the statutory maximum must be tried before a jury and proved beyond a reasonable doubt. Although the California Supreme Court held in People v. Black (2005) 35 Cal.4th 1238, 1244, that “the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence . . . under California law” does not violate Blakely, the United States Supreme Court rejected this holding in Cunningham and concluded that the middle term is the statutory maximum under California’s determinate sentencing scheme. (Cunningham, supra, 549 U.S. at p. 878-879 [166 L.Ed.2d at p. 65].)
According to the probation report in the present matter, defendant had no criminal record aside from a misdemeanor juvenile adjudication for driving without a license. The trial court based the imposition of an upper term on the victim’s vulnerability, the cruelty, viciousness and callousness of the offense, the fact that defendant was armed and his denial of responsibility for the crime. The trial court was not authorized to impose an aggravated term based on these factors, which were unrelated to recidivism and were neither admitted by defendant nor found true by the jury.
However, such errors are deemed harmless if “the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury.” (People v. Sandoval (2007) 41 Cal.4th 825, 839.)
The People contend there was “uncontroverted evidence” that the victim was particularly vulnerable. We agree. The victim, who lived alone in a trailer with only one exit, was awakened and lured outside in the middle of the night by defendant and his codefendant, who, without provocation, taunted the unarmed victim, then pursued him into his locked trailer and attacked him with a club and a knife. Although the victim’s age was an element of the great bodily injury enhancement and could not also be used to aggravate defendant’s sentence, the time and circumstances of the attack rendered the victim “obviously and indisputably vulnerable,” irrespective of his age. (People v. Sandoval, supra, 41 Cal.4th at p. 842.) It is inconceivable that a rational and properly instructed jury would have failed to find beyond a reasonable doubt that the victim in this case was particularly vulnerable.
A similar conclusion can be reached with regard to the cruelty, viciousness and callousness of the crime. The current incident was the most recent in a series of bullying acts by defendant against the victim. It involved a two-on-one attack by armed assailants, who lured the unarmed victim out of his home in the middle of the night, where they taunted him, then pursued him into his locked trailer. There, they assaulted him repeatedly with a club and a knife, for no apparent reason other than to steal the victim’s grocery money. Again, any reasonable jury would have found such acts to evince cruelty, viciousness and callousness beyond a reasonable doubt.
Nor is there any reason to believe the defense evidence would have been any different had these aggravating factors been submitted to the jury for its determination. The circumstances underlying these factors were not disputed by defendant, who argued only that the evidence was insufficient to prove he committed the offense, and there is simply no basis to suppose they would have been--or could have been--disputed had their significance been known at trial.
Accordingly, we conclude the error by the trial court in using improper factors to impose an aggravated term was harmless beyond a reasonable doubt.
Disposition
The judgment is affirmed.
We concur: DAVIS, Acting P.J., NICHOLSON, J.