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P. v. Lopez-Cole CA1/5

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P. v. Lopez-Cole CA1/5
By
12:28:2018

Filed 11/28/18 P. v. Lopez-Cole CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

ROBERT ALLEN LOPEZ-COLE,

Defendant and Appellant.

A153033

(Del Norte County

Super. Ct. No. CRF16-9505)

Appellant Robert Allen Lopez-Cole pled guilty to one count of corporal injury to a co-habitant (Pen. Code, § 273.5)[1] and admitted one prior strike (§§ 1170.12 & 667(b)–(i)). The trial court imposed the upper term of four years, doubled to eight pursuant to the Three Strikes Law. On appeal, appellant contends the trial court relied on improper aggravating factors to impose the upper term. We will affirm.

BACKGROUND

The following facts are taken from the pre-sentence probation report, which appellant agreed would provide a basis for the trial court’s sentencing decision.

The victim reported that appellant attacked her after she confronted him about infidelity. He hit her, bit her, and slammed her head against objects. The attack lasted for 35 to 40 minutes. As a result, the victim suffered significant bruising, scratching, and bite marks across her back, legs and arms, and clumps of her hair fell out. She also sustained a large contusion about half an inch from her spine at the base of her skull. Doctors informed her she had two vertebrae out of place. The victim had a mental breakdown requiring institutionalization after the incident, and took medication to deal with nightmares she experienced. She feared appellant would retaliate against her if released because he had been abusing her violently since 2015 and threatened to “come looking for her” if she reported the abuse. The victim believed appellant deserved the maximum punishment provided by law.

Appellant refused to provide an oral or written statement for the probation report. The probation report recounted appellant’s criminal history, which included five prior felony convictions and one misdemeanor conviction. The report showed the trial court previously sentenced appellant to four years in prison for two felony convictions he suffered on May 25, 2006. On the same date, the trial court terminated probation for appellant’s 2004 felony convictions, and at some point, sentenced him to 56 months in prison.

Ultimately, the probation report recommended the upper term of four years doubled pursuant to the Three Strikes Law. The report set out the following circumstances in aggravation: (i) the crime involved great violence, great bodily harm, the threat of great bodily harm or other acts disclosing a high degree of cruelty, viciousness or callousness (Cal. Rules of Court, rule 4.421, subd. (a)(1))[2]; (ii) appellant took advantage of a position of trust or confidence to commit the offense (rule 4.421, subd. (a)(11)); (iii) appellant engaged in violent conduct which indicates a danger to society (rule 4.421, subd. (b)(1)); (iv) appellant’s prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness (rule 4.421, subd. (b)(2)); and (v) appellant had served a prior prison term (rule 4.421, subd. (b)(3)). The only circumstance in mitigation in the probation report was that appellant’s prior performance on probation or parole was satisfactory. (Rule 4.423(b)(6).) In recommending the upper term, the probation report reasoned appellant had a “very minimal but extremely violent criminal history . . . centered on violence towards women,” his behavior indicated an unwillingness or inability to follow prosocial norms and refrain from violence, and he appeared to present a viable threat to the victim’s safety.

At sentencing, defense counsel requested the mid-term, noting appellant’s prior offenses were removed in time from the present one and appellant accepted responsibility for his offense. The prosecutor sought an eight year term.

The trial court imposed the upper term, stating: “It’s my intention to aggravate the term due to the serious, violent, criminal history of the defendant, including his five prior felony convictions that resulted in two prior prison terms. He was convicted in this case of domestic violence with injuries. He’s been to prison twice before for domestic violence resulting in injuries, 273.5.”

Discussion

Appellant contends the trial court relied on improper aggravating factors to impose the upper term. Because defense counsel did not object to the imposition of the upper term on the grounds raised here, the issue is forfeited. (People v. DeSoto (1997) 54 Cal.App.4th 1, 8.) We nonetheless consider the merits in light of appellant’s claim that his trial counsel’s failure to object constituted ineffective assistance of counsel.

Under section 1170, subdivision (b), “[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.” A court may impose an upper term sentence based upon “any aggravating circumstance that the court deems significant” or any other circumstance, even if not enumerated in rule 4.421, so long as it is “ ‘reasonably related to the decision being made.’ ” (People v. Sandoval (2007) 41 Cal.4th 825, 848, quoting California Rules of Court, rule 4.408(a).) “ ‘Only a single aggravating factor is required to impose the upper term.’ ” (People v. Calhoun (2007) 40 Cal.4th 398, 410, quoting People v. Osband (1996) 13 Cal.4th 622, 728.)

There are, however, limits to what a court can consider as an aggravating factor. Relevant here, a court may not use a fact underlying an enhancement to impose the upper term unless the trial court strikes the enhancement. (Pen. Code, § 1170, subd. (b); Cal. Rules of Court, rule 4.420, subd. (c).) Further, “[a] fact that is an element of the crime on which punishment is being imposed may not be used to impose a particular term.” (Cal. Rules of Court, rule 4.420, subd. (d).) A trial court’s decision to impose the upper term is reviewed for abuse of discretion. (Sandoval, supra, 41 Cal.4th at p. 847.) A trial court abuses its discretion if it “relies upon circumstances that are not relevant to the decision or that otherwise constitute an improper basis for decision.” (Ibid.)

Here, appellant claims the trial court wrongly relied on no more than a statement of the elements of his offense in violation of rule 4.420, subdivision (d), when it said it was imposing the upper term because appellant was convicted in this case and previously convicted of domestic violence with injuries. We are unpersuaded. The court’s comments at sentencing, read as a whole, make clear the court was not merely relying on its description of a section 273.5 offense as an aggravating factor. Instead, the court was relying on the number of times appellant had been convicted of violating section 273.5. This is a legitimate aggravating factor. It shows appellant has numerous prior convictions, and it reasonably relates to appellant and the circumstances of his crime. (Cal. Rules of Court, rule 4.421, subds. (b)(2) & (c); see also People v. Searle (1989) 213 Cal.App.3d 1091, 1098 [“we believe that three convictions are ‘numerous’ within the meaning of [former] rule 421 (b)(2) [renumbered rule 4.421]”].)

Appellant next argues the trial court’s statement that he had a “serious and violent criminal history” and “five prior felony convictions that resulted in two prison terms” could not support imposition of the upper term. We disagree. These are proper circumstances in aggravation under rule 4.421, subdivisions (b)(1), (2), and (3).

Appellant challenges the applicability of rule 4.421, subdivision (b)(1), which states that circumstances in aggravation include a defendant who has “engaged in violent conduct that indicates a serious danger to society.” Appellant argues the trial court “did not state that [he] was a danger to society, nor has that been demonstrated” and the probation report described his history of violence was “minimal.” He also claims his “unfortunate acts” involved a woman he had an “intensely private and emotional relationship” with.

The probation report stated appellant “has a very minimal but extremely violent criminal history.” (Italics added.) The circumstances of the crime of conviction were also violent. The appellate record supports the characterization of appellant as someone who has “engaged in violent conduct that indicates a serious danger to society.” (Cal. Rules of Court, rule 4.421, subd. (b)(1).) Appellant cites no authority requiring a trial court to explicitly say a defendant is a danger to society before relying on rule 4.421, subdivision (b)(1). As for his claim that People v. Kinsey (1995) 40 Cal.App.4th 1621 and People v. McGlothin (1998) 67 Cal.App.4th 468 construe rule 4.421, subdivision (b)(1) to apply only to “other types of violent and impersonal crimes committed against people who are strangers to the defendant,” neither case supports this position. Kinsey does not even mention rule 4.421 (or its predecessor), and McGlothin does not construe or limit the language of rule 4.421, subdivision (b)(1) in any way.

Next, appellant challenges the applicability of rule 4.421, subdivision (b)(2), which states that circumstances in aggravation include a defendant who has numerous or increasingly serious prior convictions or sustained juvenile petitions. He argues his numerous prior convictions are not an aggravating factor under this provision because the court sentenced him for having one strike prior under the Three Strike Law, which he characterizes as an “enhancement,” thereby precluding dual use of that prior as an aggravating factor. However, appellant has not cited any authority to support his argument, and case law holds the Three Strikes Law sets out an alternative sentencing scheme, not an enhancement provision. (See People v. Cressy (1996) 47 Cal.App.4th 981, 991; cf. People v. Garcia (2001) 25 Cal.4th 744, 757 [“the framers of the Three Strikes law intended to impose the doubled punishment without regard to such preexisting decisions as Edwards and its ‘dual use’ rule”].)

Even assuming arguendo increased sentencing under the Three Strikes Law constituted an “enhancement” triggering the dual use rule in section 1170, subdivision (b), and rule 4.420, subdivision (c), reversal is not required. In addition to the strike prior that appellant admitted (a 2004 section 422 conviction), appellant had four other prior felony convictions and one misdemeanor conviction. Thus, there was a “surplus of pertinent prior convictions” besides the strike prior that did not suffer from the alleged dual use problem. (People v. Forster (1994) 29 Cal.App.4th 1746, 1758.)

Finally, appellant challenges the applicability of rule 4.421, subdivision (b)(3), which provides that circumstances in aggravation include a defendant who has served a prior prison term. He contends the trial court may have mistakenly believed his prior felony convictions resulted in two prison terms rather than one. In support, he points to the probation report, which showed the court sentenced him to a four year prison term for felonies he was convicted of on May 25, 2006. However, in connection with his 2004 felony convictions, the court initially placed him on probation, and only after probation was revoked on May 25, 2006 did the court, at some point, sentence him to 56 months in prison.

It is unclear from the record whether one or two prison terms were imposed. Even if only one aggregate term was imposed, it would satisfy rule 4.421, subdivision (b)(3), which requires only that a defendant served “a prior term in prison.” Given this and the court’s other reasons for selecting the upper term, there is no reasonable probability the court would have imposed a more favorable sentence absent the claimed error. (People v. Avalos (1984) 37 Cal.3d 216, 233.)

We conclude the trial court did not abuse its discretion when it imposed the upper term.

DISPOSITION

The judgment is affirmed.

NEEDHAM, J.

We concur.

JONES, P.J.

SIMONS, J.

(A153033)


[1] All further statutory references are to the Penal Code.

[2] All further rule references will be to the California Rules of Court.





Description Appellant Robert Allen Lopez-Cole pled guilty to one count of corporal injury to a co-habitant (Pen. Code, § 273.5) and admitted one prior strike (§§ 1170.12 & 667(b)–(i)). The trial court imposed the upper term of four years, doubled to eight pursuant to the Three Strikes Law. On appeal, appellant contends the trial court relied on improper aggravating factors to impose the upper term. We will affirm.
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