Filed 2/21/18 P. v. Warren CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE


THE PEOPLE,
Plaintiff and Respondent,
v.
BERNARD WARREN,
Defendant and Appellant.

A149697

(Sonoma County
Super. Ct. No. SCR627750)


This is an appeal from judgment after the trial court revoked the formal probation of defendant Bernard Warren and sentenced him to nine years in state prison following his commission of several probation violations. Defendant was initially placed on probation as part of a negotiated disposition after pleading guilty to felony infliction of corporal injury resulting in a traumatic condition on his (now former) spouse, enhanced for inflicting great bodily injury under circumstances involving domestic violence. Defendant challenges the trial court’s imposition of upper terms for both his underlying offense and the great-bodily-injury enhancement following revocation of his probation as an abuse of discretion, as well as his trial attorney’s failure to object at sentencing as constitutionally ineffective assistance of counsel. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On December 12, 2012, a felony complaint was filed charging defendant with the following crimes: infliction of corporal injury resulting in a traumatic condition upon a spouse (Pen. Code, § 273.5, subd. (a)) (count one), threats to commit great bodily injury or death (Pen. Code, § 422) (count two), and violation of personal liberty (Pen. Code, § 236) (count three), with an enhancement alleged for personal infliction of great bodily injury under circumstances involving domestic violence (Pen. Code, § 12022.7, subd. (e)).
On January 7, 2013, defendant pleaded guilty to count one and admitted the enhancement allegation after the complaint was amended to remove counts two and three. Pursuant to a negotiated disposition, the imposition of judgment was suspended, and defendant was placed on formal probation and ordered to serve nine months in county jail. Among other probation terms, defendant was ordered to abstain from possessing or using controlled substances and to submit to random chemical testing.
In the years that followed, defendant admitted a plethora of probation violations, including his failure to submit to chemical tests, to attend self-help programs, and his possession or use of controlled substances. Finally, on September 30, 2016, a hearing was held, after which the trial court revoked probation and sentenced defendant to a total term of nine years in state prison. This sentence consisted of the four-year upper term on count one, with a consecutive five-year upper term for the great-bodily-injury enhancement. This timely appeal followed.
DISCUSSION
Defendant raises the following arguments on appeal. First, defendant contends the trial court abused its discretion by sentencing him to the upper terms on count one, infliction of corporal injury resulting in a traumatic condition upon a spouse, and on the great-bodily-injury enhancement. Among other things, defendant reasons that the trial court’s sentencing decisions were not supported by substantial evidence and were based upon the improper dual use of facts. In addition, defendant challenges the failure of his trial attorney to object at sentencing as ineffective assistance of counsel in violation of his constitutional rights. We address these arguments in turn below.
I. Imposition of Aggravated Terms on Count One and the Enhancement.
In challenging his total nine-year sentence, defendant makes three related, but distinct, arguments. First, defendant contends the trial court abused its discretion in imposing the upper four-year term on count one because there was no evidence supporting its underlying finding that his offense disclosed a high degree of viciousness. Second, defendant contends the trial court violated California Rules of Court, rule 4.420(c), by considering the violence of his offense twice—first, to impose the upper term for count one and, second, to impose the upper term for the enhancement. And finally, defendant contends the trial court abused its discretion in imposing the upper five-year term for the enhancement because it relied upon aggravating factors not supported by the evidentiary record. We begin with the relevant factual background before turning to the governing law.
At the sentencing hearing, the trial court decided upon the aggravated total term of nine years in state prison based upon the following factors. With respect to count one, the court relied upon the high degree of viciousness of the crime to impose the upper term (rule 4.421(a)(1)), noting that the victim, his (now former) spouse, “was struck multiple times in the head, you pinned her down on the ground with your knees and threatened to kill her.” With respect to the enhancement, the trial court relied upon the following factors to impose the upper term—the particular vulnerability of the victim (rule 4.421(a)(3)), the fact that his offense involved violent conduct posing a serious threat to society (rule 4.421(b)(1)), his numerous prior convictions (rule 4.421(b)(2)) and service of two prior prison terms for which he was not subject to an enhancement (rule 4.421(b)(3)), and his prior unsatisfactory performance on probation (rule 4.421(b)(5)).
On appeal, as defendant acknowledges, the trial court has wide discretion in weighing aggravating and mitigating factors, and its exercise of discretion will be disturbed on appeal only if it has been abused. (People v. Avalos (1996) 47 Cal.App.4th 1569, 1582.) “As under the former [statutory] scheme, a trial court will abuse its discretion under the amended scheme if it relies upon circumstances that are not relevant to the decision or that otherwise constitute an improper basis for decision. (See, e.g., People v. Colds (1981) 125 Cal.App.3d 860, 863 [178 Cal.Rptr. 430] [it is improper to consider a waiver of jury trial in mitigation, or an exercise of the right to jury trial as aggravation]; People v. Johnson (1988) 205 Cal.App.3d 755, 758 [252 Cal.Rptr. 302] [‘defendant’s alienage is not a proper factor when considering the length of his term’].) A failure to exercise discretion also may constitute an abuse of discretion.” (People v. Sandoval (2007) 41 Cal.4th 825, 847–848.)
Further, we review the record only for substantial evidence supporting the aggravating factors relied upon by the trial court to support its sentencing decision. “Under the DSL [Determinate Sentencing Law], a trial court is free to base an upper term sentence upon any aggravating circumstance that the court deems significant, subject to specific prohibitions. (See, e.g., Cal. Rules of Court, rule 4.420(c) [fact underlying an enhancement may not be used to impose the upper term unless the court strikes the enhancement]; id., rule 4.420(d) [fact that is an element of the crime may not be used to impose the upper term].” (People v. Sandoval, supra, 41 Cal.4th at p. 848.) We also keep in mind that just one valid aggravating factor will justify imposition of an upper term. (People v. Black (2007) 41 Cal.4th 799, 815; see also People v. Brown (2000) 83 Cal.App.4th 1037, 1043 [“a single factor in aggravation is sufficient to justify a sentencing choice”].) The “court’s discretion to identify aggravating circumstances is otherwise limited only by the requirement that they be ‘reasonably related to the decision being made.’ (Cal. Rules of Court, rule 4.408(a).)” (People v. Sandoval, supra, 41 Cal.4th at p. 848, fn. omitted.) In determining “ ‘whether there are circumstances that justify imposition of the upper or lower term,’ ” the trial court may consider, among other things, “the record of the trial, the probation officer’s report, and statements submitted by the defendant, the prosecutor, and the victim or victim’s family. (§ 1170, subd. (b).)” (Ibid.)
Here, we first conclude the record on appeal is sufficient to support the aggravating factors relied upon by the trial court to justify imposition of the upper term with respect to both count one and the great-bodily-injury enhancement. Regarding the trial court’s reliance on the high degree of viciousness of his offense with respect to the count one sentence (rule 4.421(a)(1)), there was evidence that defendant not only punched his (now former) spouse in the face several times, but that, after his punches caused her to fall to the ground, he then placed his knee on her chest to pin her down and threatened to kill her. On this record, we simply cannot conclude the trial court acted arbitrarily or irrationally by imposing the upper term based upon the high degree of viciousness of his offense. (People v. Osband (1996) 13 Cal.4th 622, 728.)
In reaching this conclusion, we further reject defendant’s argument that the trial court improperly relied on the facts relating to the viciousness or violence of his attack to impose the upper term even though the same facts were an element of his offense. (See People v. Sandoval, supra, 41 Cal.4th at p. 848 [a fact that is an element of the underlying offense cannot be used to impose the upper term].) Defendant was convicted under section 273.5, which makes it a felony to “willfully inflict[] corporal injury resulting in a traumatic condition” upon a spouse. (§ 273.5, subds. (a), (b)(1).) The section defines “traumatic condition” as “a condition of the body, such as a wound, or external or internal injury, including, but not limited to, injury as a result of strangulation or suffocation, whether of a minor or serious nature, caused by a physical force. . . .” (§ 273.5 subd. (d), italics added.) As this statutory language reflects, contrary to defendant’s suggestion, aggravated injury or particular viciousness is not a necessary element of his section 273.5 offense. (People v. Wilkins (1993) 14 Cal.App.4th 761, 771 [“Section 273.5 is violated when the defendant inflicts even ‘minor’ injury. Unlike other felonies, e.g., aggravated battery (§ 243, subd. (d)) which require serious or great bodily injury, ‘the Legislature has clothed persons of the opposite sex in intimate relationship with greater protection by requiring less harm to be inflicted before the offense is committed.’ ”].) It is well-established that where, as here, “the facts surrounding the charged offense exceed the minimum necessary to establish the elements of the crime, the trial court can use such evidence to aggravate the sentence.” (People v. Castorena (1996) 51 Cal.App.4th 558, 562.)
In a similar vein, defendant argues the trial court erred by relying upon the same set of facts relating to the nature of his (now former) spouse’s injuries to impose the upper term for both the section 273.5 offense and the great-bodily-injury enhancement. (People v. Wilson (1982) 135 Cal.App.3d 343, 358 [it is “impermissible dual use of facts for a court to impose an upper term by using the same fact used to enhance the sentence”], disapproved on other grounds in People v. Jones (1988) 46 Cal.3d 585, 600, fn. 8.) The record reflects otherwise. The felony presentence report, filed February 5, 2013, indicates that the alleged enhancement for great bodily injury was based on the fact that defendant “inflicted physical injury to [the victim], in that she sustained an orbital wall fracture with minor swelling to her eyes and cheek, as well as a small laceration to her right cheek.” And, as the trial court stated at the sentencing hearing, defendant was sentenced to the aggravated term on the enhancement based upon the following factors—his (now former) spouse’s particular vulnerability (rule 4.421(a)(3)), the serious societal threat posed by his offense (rule 4.421(b)(1)), his numerous prior convictions and two prior prison terms for which he was not subject to an enhancement (rule 4.421(b)(2)–(3)), and his unsatisfactory prior performance on probation (rule 4.421(b)(5)). Based upon this undisputed record, defendant’s dual-use argument fails.
And finally, the same underlying facts dispose of defendant’s penultimate argument that there was no substantial evidence supporting the trial court’s imposition of the upper five-year term for his enhancement. More specifically, defendant insists there was no evidence that his (now former) spouse was a particularly vulnerable victim or that he posed a danger to society. We find no grounds for reversal.
“[V]ulnerability” in this context means “ ‘. . . [of] a special or unusual degree, to an extent greater than in other cases.’ [Citation.] It is proper to focus upon the total milieu in which the commission of the crime occurred in assessing vulnerability pursuant to Rule 421. [Citation.] Both the personal characteristics of the victim and the setting of the crime may be considered.” (People v. Price (1984) 151 Cal.App.3d 803, 814.) Here, the record supports the trial court’s finding that the victim was particularly vulnerable in that defendant used his special marital relationship with her to attack her in the privacy of a motel room they were cohabitating at the time of his crime. In particular, the record reflects that when the victim attempted to leave the motel room, defendant blocked her path, thereby trapping her before inflicting further injury. No further evidentiary showing is required to affirm the trial court’s exercise of discretion. (People v. Clark (1990) 50 Cal.3d 583, 638 [the evidence supported a finding of particular vulnerability where defendant “used his prior [marital] relationship with [the victim] and knowledge gained thereby to persuade her to admit him to her apartment,” where “she was alone, inaccessible, unprotected, and unable to protect herself from the assault”].) As explained above, even a single appropriate factor is sufficient to support an aggravated term. (People v. Williams (1991) 228 Cal.App.3d 146, 153.)
II. Effectiveness of Assistance of Counsel.
Defendant’s final argument is that he received ineffective assistance of counsel in violation of his constitutional rights, when his attorney failed to object to the trial court’s decision to impose aggravated sentences. To prevail on a claim of ineffective legal assistance, a defendant must show both deficient performance and that but for such deficiency, a reasonable probability exists that he or she would have achieved a more favorable result. (In re Jackson (1992) 3 Cal.4th 578, 601, disapproved on other grounds in In re Sassounian (1995) 9 Cal.4th 535, 545, fn. 6.)
We reject defendant’s ineffective assistance claim for essentially the same reasons that we reject his sentencing claims. Simply put, for all the reasons set forth above, the trial court properly exercised its discretion when sentencing defendant to the aggravated total term of nine years in state prison. More specifically, the trial court’s sentencing decisions were based on relevant and supported facts in the record relating to the high degree of viciousness of defendant’s crime (rule 4.421(a)(1)), the particular vulnerability of the victim, his (now former) spouse (rule 4.421(a)(3)), the serious societal threat posed by his acts of domestic violence (rule 4.421(b)(1)), his numerous prior convictions (rule 4.421(b)(2)) and two prior prison terms for which he was not subject to an enhancement (rule 4.421(b)(3)), and his unsatisfactory prior performance on probation (rule 4.421(b)(5)). As such, there is no basis for this court to conclude that any failure by defendant’s trial attorney to object during the sentencing hearing after the trial court indicated that it would impose upper-term sentences on count one and the enhancement caused him undue prejudice. While perhaps more could have been done by defendant’s counsel on this front, the likelihood that it would have resulted in a better outcome for him in this case is minimal. “[A] criminal defendant is entitled to a fair trial, not a perfect one.” (People v. Sixto (1993) 17 Cal.App.4th 374, 393.)
Accordingly, defendant’s claim of ineffective assistance of counsel must be rejected given the lack of any reasonable probability that he would have achieved a more favorable result had his attorney raised an objection at the sentencing hearing. (Strickland v. Washington (1984) 466 U.S. 668, 687, 693 [to warrant reversal for ineffective assistance, counsel’s errors must be “so serious as to deprive the defendant of a fair trial, a trial whose result is reliable”]; see also People v. Kipp (1998) 18 Cal.4th 349, 366 [“If a defendant has failed to show that the challenged actions of counsel were prejudicial, a reviewing court may reject the claim on that ground without determining whether counsel’s performance was deficient.”].)
DISPOSITION
The judgment is affirmed. 

_________________________
Jenkins, J.


We concur:


_________________________
Pollak, Acting P.J.


_________________________
Siggins, J.



























A149697/People v. Bernard Warren