Filed 7/11/17 P. v. Payne 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
(El Dorado)
----




THE PEOPLE,

Plaintiff and Respondent,

v.

THOMAS EDWARD PAYNE,

Defendant and Appellant.
C081889

(Super. Ct. No. S14CRF0200)




Defendant Thomas Edward Payne and his wife had a tumultuous marriage. During one particularly violent incident, defendant first beat her in the face and head, then slit her throat from ear to ear, and then told her (in the presence of others) that he hoped she died. A jury found him guilty of two counts of inflicting corporal injury on a spouse (Pen. Code, § 273.5, subd. (a)--counts 2 and 3), and found true special allegations that he inflicted great bodily injury under circumstances of domestic violence and personally used a knife during the attack (§§ 12022.7, subd. (e), 12022, subd. (b)(1)). The trial court sentenced him to 11 years in prison.
On appeal, he contends that the trial court erred by failing to state its reasons on the record for imposing the upper term on the great bodily injury enhancement. He also contends that if his claim was not properly preserved for review, his counsel was constitutionally ineffective for failing to object to the trial court’s omission.
We conclude defendant forfeited his challenge by failing to object in the trial court. Because defendant cannot show prejudice from his counsel’s failure to object, we reject his ineffective assistance of counsel claim. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In October 2014, defendant lived with his wife Elizabeth and their infant son in an apartment in South Lake Tahoe. Neither defendant nor Elizabeth was employed. They lived off Elizabeth’s monthly disability check. Before moving to California, they lived in Missouri, where they had six other children together, but due to drug and domestic violence issues their parental rights were terminated and defendant’s sister adopted the children. After losing their children, they moved to California to “start over.”
Throughout their relationship, defendant and Elizabeth were abusive towards each other, and they fought often. Defendant had twice been convicted for domestic violence offenses against Elizabeth in Missouri. Defendant continued abusing Elizabeth after they moved to California. On one occasion, he put her in a choke hold while they were arguing and wrestling on the bed. Another time, he used both his hands to choke her until she could not breathe. During that incident, he retrieved a six-inch hunting knife and threatened to kill himself. Elizabeth was not sure whether he was homicidal or suicidal at the time. On numerous other occasions he hit her, giving her several black eyes.
On October 15, 2014, Elizabeth took their infant son for a walk to give defendant time to “cool off” because he was angry. When she returned later that day, she found defendant asleep; when she woke him he told her that he had taken some pills and drank alcohol. He fell back asleep; Elizabeth sat talking with her infant son near the foot of the bed. Because defendant usually cooked for the family, Elizabeth told her son that it appeared they would not be having dinner that night. Defendant shot up in bed, and although Elizabeth testified she could not remember exactly what happened, she ended up beaten. The parties stipulated that she told a police detective at the hospital that defendant punched her three times--in the left eye, on the right side of her forehead, and on the top left side of her head.
Elizabeth got up and went outside the apartment, closed the front door, and sat down with her back against the door. She felt the door loosen behind her, then felt a hand on top of her head, a foot in her back, and a strange feeling on her neck. Defendant had slit her throat from ear to ear. She fell forward, hitting her face on the ground. Blood gushed from her neck, and she saw defendant standing at the door with something in his hand.
Elizabeth stood up and ran screaming to a neighbor’s apartment across the courtyard. When the neighbor opened his door, Elizabeth was on her knees, holding her neck; blood was running down her hands. He and another neighbor wrapped towels around her neck to try to staunch the bleeding while another neighbor called the police.
While the neighbors were tending to Elizabeth, defendant left their apartment and walked across the driveway toward the street. As he passed them he said, “I hope you die. You got what you deserved.” He then left.
When police arrived, Elizabeth’s neck was spurting blood. Her injury was classified as life-threatening, and she was transported to the hospital where she underwent emergency surgery. Her neck wound was roughly eight inches long; the cut extended through the layer of muscle called the platysma, into the trachea anteriorly, and stopped only a few millimeters from her airway. The wound required multiple layers of sutures in the muscle and skin to close. She also had a severe black eye and her forehead was bruised and swollen. She was hospitalized for five days. At the time of trial she still had a visible scar on her neck, and she suffered permanent nerve damage in one eye.
Although police and K-9 officers searched for defendant that night, they did not find him. The next day, when officers returned to the apartment (with written consent to search from Elizabeth), defendant was there and was arrested. The police found two handwritten letters addressed to Elizabeth; Elizabeth identified the handwriting on the letters as defendant’s. In one of the letters, defendant wrote, “It was like a dream. I never ever wanted to hurt you. I just wish we could show love as easy as we show hate. I will always love you, even though I am a monster.” He also referenced climbing a tree the night he attacked her while the police dogs were looking for him. He signed the letter, “Sorry, Thomas.”
Following his arrest, defendant was charged with attempted premeditated murder (§§ 664/187, subd. (a), count 1), and two counts of inflicting a corporal injury on his spouse within seven years of having suffered a similar conviction (former § 273.5, subd. (e)(1)). One spousal abuse count was for cutting Elizabeth’s throat (count 2) and the other was for punching her in the face (count 3). Count 2 included special allegations for inflicting great bodily injury under circumstances involving domestic violence (§ 12022.7, subd. (e)) and for using a deadly weapon, a knife (§ 12022, subd. (b)(1)). The prosecutor later withdrew the prior conviction allegations as to counts 2 and 3.
Defendant testified at trial that Elizabeth would get physical during their arguments and he would try to leave. He disagreed with Elizabeth’s descriptions of his domestic violence convictions in Missouri, claiming she was the aggressor in both instances. He testified that on the morning of the crimes he ran errands to try to enroll in a program that provided marijuana to low income people and to get federal disability. After having no success at either endeavor, defendant returned to his apartment and told Elizabeth that things had not gone well. He took two Valium for a bad headache and went to bed.
When he awoke several hours later, Elizabeth was at the foot of the bed smoking a cigarette next to their son. An empty whiskey bottle and a shot glass were next to her, and he could tell she was intoxicated. He questioned why she was smoking and drinking in front of the infant. She got mad, and walked to the refrigerator where she retrieved a can of coffee creamer and threw it at him. As defendant tried to leave, Elizabeth grabbed him from behind and pulled him backwards onto the bed. Their heads collided during the fall. After breaking free from her grasp, Elizabeth tried to wrap herself around his waist, and they struggled and fell to the floor.
Elizabeth pulled out a knife which defendant was able to get from her hand. He asked her to leave, and she walked out of the apartment. He told her that as long as she was not going to try to kill herself, she could come back inside. He then picked up the knife and held it close to her chin, telling her to go ahead (and kill herself) because he did not think anyone would miss her. She grabbed the knife and pulled it toward her throat. He pulled the knife away and she stood up; he then retreated a few steps inside the apartment and shut the door, then heard her scream. He looked down at the knife and saw a droplet of blood. He stashed the knife in a backpack and walked out of the apartment. As he left, defendant told Elizabeth, “I hope you die, because our kids don’t deserve this.”
Defendant and Elizabeth’s teenage daughter also testified on defendant’s behalf. She claimed Elizabeth was the aggressor in the relationship, and that he would try to leave when their arguments escalated. Defendant only pushed or hit Elizabeth in self-defense after she attacked him.
The jury found defendant guilty of both domestic violence offenses, but was unable to reach a verdict on the attempted murder charge, which was later dismissed. The jury also found true the special allegations on count 2.
Prior to sentencing, the court read and considered the probation officer’s report, the People’s sentencing memorandum, and a letter from defendant. The probation report listed six factors in aggravation: (1) the crime involved great violence, great bodily harm, threat of great bodily harm or other acts disclosing a high degree of cruelty, viciousness or callousness since defendant slashed Elizabeth’s throat and she had to have emergency surgery (Rules of Court, rule 4.421(a)(1)); (2) defendant was armed with or used a 12-inch knife during the offense (rule 4.421(a)(2)); (3) the victim was particularly vulnerable since her five-month-old baby was present and there were prior instances of domestic violence by defendant (rule 4.421(a)(3)); (4) defendant’s prior convictions are numerous and of increasing seriousness (rule 4.421(b)(2)); (5) defendant was on probation when he committed the offenses (rule 4.421(b)(4)); and (6) defendant’s prior performance on probation was unsatisfactory since he had four sustained violations of probation out of Missouri and had a pending bench warrant due to a violation of probation (rule 4.421(b)(5)). The report did not include any mitigating factors, and recommended that the court impose the upper terms for count 2 and its attached great bodily injury enhancement, four and five years, respectively, one year for the knife-use enhancement, and one-third the midterm for count 3, for a total of 11 years.
The People’s sentencing memorandum emphasized the same six factors in aggravation (rule 4.421), and urged the court to impose a total term of 11 years in prison. At the hearing, the prosecutor emphasized that defendant’s criminal history, the severity of his actions, and the prior domestic violence against Elizabeth warranted a maximum sentence. The prosecutor also read a letter from Elizabeth describing the significant impacts defendant’s actions had on her and their children.
Defense counsel argued that Elizabeth was an initiator or aggressor of the incident, and that defendant was in a toxic relationship. In counsel’s view, these were mitigating factors and an aggravated sentence was inappropriate considering all of the circumstances in the case. She argued generally that “the mid term on the sentence is what the court should be imposing.”
After hearing argument from counsel, the trial court indicated that “this case I think will probably stand out in everybody’s mind as one of the worst instances of domestic violence.” The court observed that defendant blamed Elizabeth for his actions; he did not accept responsibility for his own conduct, and that his testimony concerning the prior domestic violence instances was not credible. The court observed that defendant “ran off,” and “got rid of the knife,” and his explanation for his actions “defie[d] credibility.” Defendant’s comment that he hoped Elizabeth would die while she bled out on her neighbor’s porch was “about as callus a comment” as the court had encountered in a domestic violence case.
In aggravation, the court found the crimes involved great violence and bodily injury. (Rule 4.421(a)(1).) Further, defendant used a 12-inch knife (rule 4.421(a)(2)), his criminal history was lengthy and increasing in seriousness and frequency (rule 4.421(b)(2)), he was on probation when he committed the crimes (rule 4.421(b)(4)), and his performance on probation was unsatisfactory (rule 4.421(b)(5)). In mitigation, the court found that Elizabeth was to some extent a willing participant, although the court noted that defendant’s use of force clearly exceeded any of her actions during the altercation (rule 4.423(a)(2)), and that defendant had been depressed and was having psychological issues in the days leading up to the incident (rule 4.423(a)(4)). On balance, the court found that the aggravating factors outweighed those in mitigation.
Without further discussion of the aggravating factors, the court imposed the upper term of four years on count 2, plus the upper term of five years for the great bodily injury enhancement, one year for the knife-use enhancement, and one year (one-third the midterm) for count 3, all consecutive. To support the consecutive sentences under rule 4.425, the court found the crimes and their objectives were predominantly independent of each other (rule 4.425(a)(1)), involved separate acts of violence (rule 4.425(a)(2)), and were committed at different times or separate places (rule 4.425(a)(3)). Defendant’s total term of imprisonment was 11 years. He timely appealed.
DISCUSSION
Defendant contends the trial court erred by not stating reasons for imposing the upper term on the great bodily injury enhancement attached to count 2. Although he concedes his counsel did not object to the trial court’s failure to state additional reasons for the upper term, he nevertheless argues he adequately preserved his appellate challenge by urging the court to impose the middle term on the enhancement. He contends in the alternative that his counsel was constitutionally ineffective for failing to object when the court did not state its reasons for imposing the upper term on the enhancement. We conclude defendant forfeited his challenge by failing to object in the trial court, and that he has failed to establish prejudice from his trial counsel’s failure to object.
A trial court generally has broad discretion to tailor a sentence to a particular case. (People v. Scott (1994) 9 Cal.4th 331, 349.) Discretionary choices commonly include the decision to impose the lower or upper term instead of the middle term, and to impose consecutive rather than concurrent sentences. (Ibid.; see also § 1170, subd. (b) [“When 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”].) “If an enhancement is punishable by one of three terms, the court must, in its discretion, impose the term that best serves the interest of justice and state the reasons for its sentence choice on the record at the time of sentencing.” (Rule 4.428.)
In exercising its discretion in selecting one of three authorized terms of imprisonment, “the sentencing judge may consider circumstances in aggravation or mitigation, and any other factor reasonably related to the sentencing decision.” (Rule 4.420(b).) The court may consider relevant circumstances “obtained from the case record, the probation officer’s report, other reports and statements properly received, statements in aggravation or mitigation, and any evidence introduced at the sentencing hearing.” (Rule 4.420(b).)
It is well settled that “[a] party in a criminal case may not, on appeal, raise ‘claims involving the trial court’s failure to properly make or articulate its discretionary sentencing choices’ if the party did not object to the sentence at trial.” (People v. Gonzalez (2003) 31 Cal.4th 745, 751.) “The rule applies to ‘cases in which the stated reasons allegedly do not apply to the particular case, and cases in which 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 . . . .’ ” (Ibid., italics added.)
Here, defendant concedes that his counsel did not object when the court imposed the upper term on the great bodily injury enhancement. Although counsel urged the court to impose the “mid term on the sentence,” urging the court to adopt a particular sentencing choice is not the equivalent of a timely and specific objection to omission of supporting reasons for that choice. This failure to object forfeits the claim on appeal.
Anticipating the possibility of forfeiture, defendant next contends that his counsel was ineffective for failing to object. We need not decide whether counsel’s representation was constitutionally inadequate, however, because we conclude defendant has failed to establish the requisite prejudice necessary to support this claim.
“In order to demonstrate ineffective assistance of counsel, a defendant must first show counsel’s performance was ‘deficient’ because his ‘representation fell below an objective standard of reasonableness . . . under prevailing professional norms.’ [Citations.] Second [a defendant] must also show prejudice flowing from counsel’s performance or lack thereof. [Citations.]” (People v. Jennings (1991) 53 Cal.3d 334, 357.) Prejudice is established if “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.” (Strickland v. Washington (1984) 466 U.S. 668, 698 [80 L.Ed.2d 674].)
“If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed.” (Strickland v. Washington, supra, 466 U.S. at p. 699.) We follow that course here. Given the facts underlying the offenses, the detailed probation report that identified multiple aggravating factors, which the trial court read and considered, counsel’s request for the middle term, and the extensive arguments of counsel during the sentencing hearing, we conclude defendant cannot show a reasonable probability that a more favorable outcome would have resulted had counsel’s purported errors not occurred.
When a trial court is required to select the lower, middle, or upper term in a sentencing triad (rule 4.420(a)), “[o]nly a single aggravating factor is required to impose the upper term.” (People v. Osband (1996) 13 Cal.4th 622, 728.) The probation report listed six aggravating factors. During the sentencing hearing, the court discussed each of these factors in aggravation. Given the presence of multiple aggravating factors, which the court found outweighed any potential mitigating factors, it is not reasonably probable that the court would have sentenced defendant differently had his counsel objected to the lack of a statement of reasons.
In other words, on this record, we discern no reasonable probability that the court would not have chosen to recite one or more of the multiple aggravating factors listed in the probation report and cited by the court during the sentencing hearing to support its discretionary decision to impose the upper term on the great bodily injury enhancement. (People v. Osband, supra, 13 Cal.4th at p. 729 [court’s error in relying on same factor to impose upper term and consecutive term was harmless where the court could have selected disparate facts from among the multiple factors recited to justify imposing both a consecutive sentence and the upper term].) Resentencing, then, is not required (ibid.), as defendant could not have been prejudiced by his counsel’s failure to object below.
DISPOSITION
The judgment is affirmed.




/s/
Duarte, J.



We concur:



/s/
Robie, Acting P. J.




/s/
Butz, J.