Filed 12/14/17 P. v. Dominguez CA3
NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----



THE PEOPLE,

Plaintiff and Respondent,

v.

OSCAR RAMON DOMINGUEZ,

Defendant and Appellant.
C082643

(Super. Ct. No. 15F03972)



A jury found defendant Oscar Ramon Dominguez guilty of infliction of corporal injury upon a person with whom he had a dating relationship (count one), assault with a deadly weapon, to wit, a car (count two), and hit and run resulting in death or permanent serious injury (count three). In connection with counts 1 and 2, the jury found that defendant personally inflicted great bodily injury under circumstances involving domestic violence. In connection with count 1, the jury also found that defendant used a deadly and dangerous weapon, to wit, a car.
Sentenced to state prison for an aggregate term of 11 years, defendant appeals. His sole contention is that the trial court abused its discretion in imposing the upper terms rather than the middle terms. We conclude that defendant has forfeited the contention. Even if not forfeited, his contention fails on the merits.
FACTUAL AND PROCEDURAL HISTORY
On June 27, 2015, defendant called the victim who he had been dating off and on for years and wanted to see her. She agreed and drove to his house where they got into his car. Defendant was drinking alcohol and drove to a casino, stopping at a liquor store along the way. They left the casino to return to defendant’s home. When they arrived at his house, the victim told defendant she wanted to go home, intending to end their relationship. Defendant responded that “it was fine, that [she] should get out, and we’ll see if [she] make[s] it to [her] car.” She felt threatened and did not get out immediately. Defendant then ordered her out. When she grabbed her purse, defendant took it from her and threw it in the backseat. She opened the door and as she started to get out, defendant put his car in reverse, knocking her to the ground. She hit her forehead on the pavement. Defendant continued in reverse and ran over the victim’s hips and leg. Defendant revved the engine. The victim was able to get up onto the sidewalk. Defendant fled the scene with the victim’s purse and cell phone.
An officer who arrived on the scene described the victim as lying in the front yard of a residence. The victim’s legs were bent. She had bruising and abrasions on an ankle, and a laceration on her forehead. She complained of pain. She was transported to the hospital where she was diagnosed as having fractures to her pelvis. She spent 10 days in the hospital. A year later, the victim was unable to bend her legs and had pain when she walked a lot or sat for long periods. She still had follow-up visits with doctors for her injuries.
The victim testified that defendant abused alcohol and drugs and repeatedly threatened and hit her. Three times prior to the incident, defendant threatened to tie her to his truck and drag her on the streets.
Defendant had been on formal probation at the time of the offense. On September 12, 2014, defendant pulled the victim’s hair and kicked her in the shins when the victim would not cook for him. She reported to responding officers that three weeks earlier, defendant bit her on the forearm, and punched her in the face three times, causing a black eye. Defendant was convicted of infliction of corporal injury upon a person with whom he had a dating relationship, a misdemeanor.
The probation officer noted that defendant was ineligible for probation unless the court found unusual circumstances warranting probation. In aggravation, the probation officer cited the great violence of the crime, the manner in which the crime was carried out indicated planning, sophistication and professionalism, defendant posed a serious danger to society based on the violent conduct, and he was on formal probation at the time of the offense. In mitigation, the officer noted that defendant had an insignificant prior record, that is, his prior misdemeanor conviction involving the same victim.
The probation officer recommended the upper term of four years for infliction of corporal injury upon a person with whom he had a dating relationship, the upper term of five years for the domestic violence great bodily injury enhancement, based on the aggravating factor that the “crime involved great violence, great bodily harm, and other acts disclosing a high degree of cruelty, viciousness and callousness.” In connection with the first count, the probation officer recommended one year for the use of a deadly weapon. For assault with a deadly weapon and the enhancement, the probation officer recommended that any term imposed be stayed. For hit and run, the probation officer recommended a consecutive one-third the midterm or one year.
At sentencing, the court stated that it had read and reviewed the probation report. Defendant and defense counsel confirmed that they had had “ample time” to discuss the report. No statement in mitigation or aggravation was filed. Without objection, the court found the facts in the report were consistent with the trial testimony. Defense counsel sought midterm sentences, challenging the probation officer’s citation of the aggravating factor that the manner of the crime indicated planning, sophistication, and professionalism. The court noted the trial testimony that defendant had previously threatened to use a vehicle to cause harm to the victim which indicated planning. Defense counsel argued that defendant had threatened to drag the victim behind the car which was different than what happened in this case. Defendant stated that he never intended to hurt the victim, the car “just went into reverse.” The prosecutor argued that the probation recommendation was appropriate but 11 years “does[ not] seem like enough,” considering that it was cruel and dangerous and that defendant had been on probation for domestic violence against the same victim when he committed the current offenses.
The court adopted the findings and recommendations of the probation officer as set forth in the probation report. In denying probation, the court cited the reasons in the probation report. The court stated it had listened to the trial testimony and had taken detailed notes. The court did not believe defendant’s claim of an accident. The court noted defendant did not have any great remorse, defendant constituted a serious danger to others, and showed that he had the capacity to inflict great harm, cruelty, and violence on a women. The court sentenced defendant consistent with the probation recommendation. In imposing the upper term, the court cited in aggravation that the offense disclosed a high degree of cruelty, viciousness, and callousness. Defense counsel did not object to the reasons stated or the balancing of the factors. When the court thereafter imposed AIDS testing, defense counsel commented on the lack of authority and the court struck the order for testing. When defense counsel asked that restitution be set in an amount to be determined, the court so ordered. When defense counsel also asked that probation in another case be ordered terminated, the court ordered defendant to serve the remainder of the time concurrent to his 11-year sentence. Defense counsel had nothing else to add after defendant was advised of his appellate rights and prior to his remand.
DISCUSSION
Defendant contends the midterm was the appropriate term for the offenses and enhancements given his insignificant record and despite the trial court’s reliance upon the factor in aggravation it cited. Defendant claims the trial court did not properly balance the factors in aggravation and mitigation. Defendant argues the aggravating factor the court cited required that his offenses were distinctively worse than the ordinary and that the aggravating term could not be imposed based on an element of the offense.
The People respond that defendant’s contention is forfeited. In arguing against a finding of forfeiture, defendant acknowledges that defense counsel did not challenge the factor cited by the trial court in imposing the upper term but argues defense counsel sought the midterm and the court did not adequately consider his insignificant prior record. We disagree.
People v. Scott (1994) 9 Cal.4th 331 held that “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.” (Id. at p. 356.) Such “[r]outine defects in the court’s statement of reasons are easily prevented and corrected if called to the court’s attention.” (Id. at p. 353.) Error in weighing sentencing factors is included in the category of claims that are forfeited unless there is an objection. (Ibid.)
Defense counsel did not object when the trial court cited its reasons for imposition of sentence. Prior to imposition of sentence, she argued the court should impose a midterm and cited defendant’s insignificant record. However, after the trial court stated the sentence, defense counsel did not assert that the court had not given enough consideration to defendant’s insignificant record or had not properly balanced the aggravating factor against defendant’s record or that the court had relied upon an element of the offense. The court continued with other orders and then asked whether there was anything else. Defense counsel had nothing further. Defense counsel had the opportunity to object to the court’s discretionary choices. We conclude defendant’s claim is forfeited.
Moreover, defendant’s claim fails on the merits. “Only a single aggravating factor is required to impose the upper term [citation] . . . .” (People v. Osband (1996) 13 Cal.4th 622, 728.)
Here, the record reflects that the trial court was aware of its sentencing discretion. The trial court’s finding that defendant’s offense demonstrated a high degree of cruelty suffices to justify the selection of the upper term for defendant’s violation of Penal Code section 273.5, subdivision (a). That the trial court used the same factor to impose the upper term for defendant’s infliction of great bodily injury does not require remand since there is no reasonable probability that a more favorable sentence would have been imposed. (People v. Osband, supra, 13 Cal.4th at p. 728.) There were other aggravating factors including the fact that defendant was on probation at the time of the offense and he posed a serious danger to society in view of his violent conduct. Moreover, defendant did not express remorse, he was only “ ‘[r]eally sad that he was found guilty.’ ” That he had an insignificant record is clearly outweighed since his prior misdemeanor offense was against the same victim. There was no abuse of discretion
DISPOSITION
The judgment is affirmed.

/s/
Robie, J.
We concur:


/s/
Raye, P. J.


/s/
Hoch, J.