Opinion
C080763
03-21-2018
THE PEOPLE, Plaintiff and Respondent, v. BENJAMIN BUSTER BROWN, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14F04863)
Defendant Benjamin Buster Brown appeals after a jury found him guilty of attempted murder, burglary, dissuading a witness, making criminal threats, assault, and vandalism. He contends the trial court erroneously excluded evidence supporting his heat of passion defense and improperly instructed the jury on voluntary intoxication and a defendant's right to not testify. Defendant further contends the court committed multiple sentencing errors. Acknowledging his trial counsel failed to object to many of these claims of error, defendant also contends his counsel was ineffective. Finding no merit in defendant's arguments, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In the afternoon of July 14, 2014, defendant drove his son P. B. to his ex-wife's house with his young daughter from another relationship also in the truck. When defendant pulled up to his ex-wife's house, her current husband Azhar Alkhayat approached defendant's truck. Alkhayat pointed his finger at defendant and yelled at him for being an irresponsible father. Alkhayat was upset that defendant did not pick up his other son, and P. B.'s brother, B. B., from practice, even though defendant was responsible for the children that weekend. Defendant yelled back at Alkhayat and the two argued for two to three minutes. During the argument, defendant repeatedly threatened to come back and "fuck [Alkhayat] up." Alkhayat noticed that defendant smelled of alcohol.
Defendant then picked B. B. up from practice. Defendant was "raving" about how Alkhayat "disrespected him in front of his daughter." He told B. B. that if Alkhayat continued to disrespect him, he would beat Alkhayat up. When he got to his ex-wife's house to drop off B. B., defendant saw Alkhayat in front of the house "acting like he was cleaning his truck." Alkhayat again approached defendant's truck. He opened the passenger door and told B. B. to go inside of the house. Alkhayat then yelled at defendant again for being irresponsible and relying on others to provide his children with transportation. The two argued for three to four minutes, with defendant later claiming that Alkhayat attempted to strangle him and Alkhayat later claiming defendant attempted to run him over with his truck. Defendant's daughter was still in the car and witnessed the argument. She started to cry and scream, potentially aggravating a heart condition. When Alkhayat realized defendant's daughter was in the truck, he apologized to defendant for arguing in front of her. Defendant drove away and eventually dropped off his daughter with her mother.
For the next several hours, defendant was in a "trance" and could not think straight because he was upset with Alkhayat. After "struggl[ing] with the decision for hours" defendant decided to return to Alkhayat's house and "kick his ass." He decided to do this because of what happened earlier in the day and on prior occasions. That day had been "the fourth attack on [defendant], and [he] just felt [he had] had enough." Alkhayat had been "assault[ing]" defendant more frequently and this time Alkhayat "put [defendant] over the edge" because he had put defendant's "daughter's life at risk." Defendant planned to take a weapon with him to assault Alkhayat because he feared Alkhayat would beat him in a fight.
At 11:40 p.m., defendant returned to his ex-wife's house and rammed into the garage door with his truck two or three times to gain entry into the house. By repeatedly ramming the garage door, defendant caused the door to come off of the tracks and land on top of his ex-wife's car. Her car was also pushed to the front of the garage destroying the car and a refrigerator also located inside of the garage. Defendant grabbed a dull machete from his truck and went inside of the house.
Once inside the house, defendant immediately went upstairs and demanded to know the location of Alkhayat. He then went downstairs and walked into the master bedroom confronting Alkhayat there. Alkhayat's two-year-old son screamed when defendant entered the master bedroom. The crying toddler ran out of the room, where B. B. grabbed him in the hallway and took him outside where P. B. was waiting. Defendant's ex-wife called 911.
Inside the master bedroom, defendant swung the machete at Alkhayat multiple times cutting him on his head, back, stomach, and chest. Two large cuts on Alkhayat's head penetrated to Alkhayat's skull bone. Defendant dropped the machete and the two men wrestled. Defendant gained the advantage and pinned Alkhayat face down on the bed, as if trying to suffocate him. Alkhayat was able to get out from under defendant but could not get away before defendant put him in a choke hold. Defendant applied and released pressure multiple times to "let him know, if you keep fighting, I'm going to snap your neck, stop fighting. And there we[re] time[s] he would stop fighting and I would release pressure, right, and then he would start fighting again and I would add pressure."
Alkhayat lost consciousness multiple times and thought defendant was going to kill him. In fact, defendant told Alkhayat multiple times that he was going to kill him and that "[i]f [he] continue[d] to fight and resist, [defendant] would snap [his] neck." Defendant also told Alkhayat that if he told police about what happened, he would "have people come and find [Alkhayat] and kill [him], so [he] better keep [his] mouth shut." When Sacramento Police Officers arrived, defendant released Alkhayat from the choke hold and was arrested.
Defendant's ex-wife believed defendant was drunk at the time of the assault because he smelled like alcohol. Police Officer Christopher Jensen also smelled alcohol when interacting with defendant but did not believe defendant was drunk because his speech was normal and he was able to walk in a straight line. Defendant admitted to drinking four or five shots of tequila and three or four beers between 5:00 p.m. and 11:00 p.m.; however, he claimed that he was not drunk and "knew exactly what [he] was doing" at the time of the offense.
Defendant sought to introduce evidence of prior verbal disputes between himself and Alkhayat and evidence of assaults Alkhayat committed against P. B. and B. B. One disagreement between defendant and Alkhayat "got physical-ish" and resulted in Alkhayat chasing after defendant. Defendant acknowledged this evidence was not relevant to any defense, but sought its admission to show "background and context and it shows a motive and a reason for why [defendant] did what he did." The trial court excluded this evidence because it was not relevant.
Without objection, the trial court instructed the jury that a defendant's voluntary intoxication could be considered only when determining whether defendant acted with the intent to kill or with premeditation and deliberation. It also instructed the jury on a defendant's right to not testify even though defendant testified. The court asked defense counsel if he wanted the instruction removed from jury consideration, to which defense counsel indicated he did not and that "[t]his is fine."
The jury found defendant personally used a deadly weapon when he committed attempted murder, first degree burglary, and making criminal threats. It, however, found defendant did not act with premeditation or deliberation during the attempted murder and that he did not inflict great bodily injury during any offense. When finding him guilty of dissuading a witness, the jury also found defendant acted knowingly and maliciously and with force. The jury also found defendant guilty of vandalism.
At sentencing, defense counsel did not object to the aggravating circumstances listed in the probation report or to the trial court's findings regarding aggravating factors. Instead, defense counsel argued that the court should impose the lower or middle term for the attempted murder conviction because of multiple mitigating factors. Defense counsel also argued for the court to stay imposition of sentence for the vandalism conviction because it was defendant's act of vandalizing the garage that allowed him to gain entry into his ex-wife's house to commit burglary.
The court rejected defendant's arguments and imposed the upper term of imprisonment for attempted murder and a consecutive term for vandalism. In all, the court sentenced defendant to 13 years and eight months in prison -- nine years for attempted murder plus one year for the weapon enhancement, three years for dissuading a witness, and eight months for vandalism. The court stayed the sentence for all remaining convictions.
DISCUSSION
I
Defendant Forfeited His Evidentiary Error Claim Because He Did Not Seek
Admission In The Trial Court On The Theory He Now Advances
Defendant contends the trial court erroneously excluded evidence of prior verbal altercations between himself and Alkhayat and evidence that Alkhayat assaulted defendant's children. Defendant claims this ruling was error because evidence of an ongoing altercation was relevant to show that he acted out of heat of passion when attempting to kill Alkhayat. The problem with this argument is that defendant did not assert this theory when seeking admission of the evidence at trial; instead he argued the evidence was admissible to show context and his motive for assaulting Alkhayat. "A party forfeits the right to claim error as grounds for reversal on appeal when he or she fails to raise the objection in the trial court. [Citations.] A party may not assert theories on appeal which were not raised in the trial court." (People v. Roberts (2010) 184 Cal.App.4th 1149, 1193.)
Anticipating this conclusion, defendant also contends his attorney was ineffective for failing to argue that the evidence was relevant to support a heat of passion defense. We do not agree.
" 'In assessing claims of ineffective assistance of trial counsel, we consider whether counsel's representation fell below an objective standard of reasonableness under prevailing professional norms and whether the defendant suffered prejudice to a reasonable probability, that is, a probability sufficient to undermine confidence in the outcome.' " (People v. Carter (2005) 36 Cal.4th 1114, 1189, citing Strickland v. Washington (1984) 466 U.S. 668, 694 [80 L.Ed.2d 674, 697-698]; People v. Ledesma (1987) 43 Cal.3d 171, 217.) We presume " 'counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy. Defendant thus bears the burden of establishing constitutionally inadequate assistance of counsel.' " (Ibid.) If the appellate record " 'sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation.' " (Ibid.) "If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." (Strickland, at p. 697 .)
Here, defense counsel had a tactical reason for not seeking admission of the challenged evidence under a theory that it supported a heat of passion defense. Defendant's theory at trial was that he did not intend to kill Alkhayat and, while he was guilty of burglary and assault with a deadly weapon, he was not guilty of attempted murder. Defense counsel argued this during closing argument and, most importantly, defendant testified to the same. Given defendant's testimony, it was reasonable for defense counsel to believe a jury would not find defendant credible regarding his lack of intent to kill if he also argued defendant intended to kill Alkhayat but was acting in the heat of passion.
Neither can defendant show he was prejudiced by his counsel's failure to advance a heat of passion theory because it is not reasonably probable a different outcome would have resulted. Defendant testified that he "struggled with the decision for hours" before deciding to "kick [Alkhayat's] ass." He also testified that he thought he needed a weapon to beat Alkhayat in a fight, and decided to take one before going to Alkhayat's house. Defendant later used the weapon he contemplated taking to perform an act he had thought about for hours -- striking Alkhayat in the head with a machete, down to his skull. Although the jury found defendant did not act with premeditation and deliberation when committing the attempted murder, defendant's own statements make a finding that he committed the attempted murder in the heat of passion unreasonable. For these reasons, we conclude defendant's trial counsel was not ineffective for failing to advance a heat of passion theory when arguing for admission of the challenged evidence.
II
Defendant Was Not Prejudiced By His Counsel's Failure To Request A Voluntary
Intoxication Instruction Regarding Specific Intent Crimes
The court instructed on voluntary intoxication pursuant to CALCRIM No. 625. It told the jury it, "may consider evidence, if any, of the defendant's voluntary intoxication only in a limited way. You may consider that evidence only in deciding whether the defendant acted with the intent to kill, or the defendant acted with deliberation and premeditation. [¶] A person is voluntarily intoxicated if he or she becomes intoxicated by willingly using any intoxicating drug, drink, or other substance knowing it could produce an intoxicating effect, or willingly assuming the risk of that effect. [¶] You may not consider evidence of voluntary intoxication for any other purpose."
Defendant argues this instruction was erroneous because it did not tell the jury that it may also consider evidence of his voluntary intoxication when deciding whether he acted with the specific intent required for voluntary manslaughter, burglary, dissuading a witness, and criminal threats. The problem with defendant's argument is that CALCRIM No. 625 applies only to homicide crimes and not to other specific intent crimes. The instruction as worded was complete and accurate regarding the effect of voluntary intoxication on homicide crimes.
CALCRIM No. 3426, on the other hand, allows the jury to consider evidence of a defendant's voluntary intoxication when determining whether he possessed the specific intent required for the crimes charged. Defendant argues the trial court had a sua sponte duty to instruct on this defense. However, voluntary intoxication is not a defense. (People v. Saille (1991) 54 Cal.3d 1103, 1119.) Evidence of intoxication is "relevant only to the extent that it bears on the question of whether the defendant actually had the requisite specific mental state." (Ibid.) Instructions that relate voluntary intoxication evidence to legal issues in the case are pinpoint instructions which must be given "upon request when there is evidence supportive of the theory, but they are not required to be given sua sponte." (Ibid.; see also People v. Rundle (2008) 43 Cal.4th 76, 145.)
Here, defendant did not request the jury be instructed with CALCRIM No. 3426. Thus, defendant's complaint is not with the adequacy of the court's instruction, but with his counsel's failure to request an appropriate pinpoint instruction. Foreseeing this conclusion, defendant argues his counsel was ineffective for failing to request the proper instruction. We disagree.
As explained, " '[i]n assessing claims of ineffective assistance of trial counsel, we consider whether counsel's representation fell below an objective standard of reasonableness under prevailing professional norms and whether the defendant suffered prejudice to a reasonable probability . . . .' " (People v. Carter, supra, 36 Cal.4th at p. 1189.) "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. 697 .)
Here, defendant was not prejudiced by his counsel's failure to request the jury be instructed with CALCRIM No. 3426 because defendant did not present evidence he was voluntarily intoxicated during the assault. Defendant testified that, although he drank four or five shots of tequila and three or four beers in the six hours preceding the attempted murder, he was not drunk and "knew exactly what [he] was doing" at the time of the offense. Defendant's ex-wife thought he was drunk at the time of the assault because he smelled of alcohol; however, defendant did not have slurred speech or exhibit other indicators of intoxication.
Further, during closing argument, defense counsel did not mention defendant lacked the intent required for the specific intent crimes because he was intoxicated or that he was acting in the heat of passion due to his intoxication. Instead, defense counsel argued that defendant did not make criminal threats, nor did he dissuade a witness. He also argued that defendant never intended to kill Alkhayat period, whether that meant in the heat of passion or otherwise. Defense counsel conceded that defendant committed burglary and vandalism. Because defendant did not present evidence that he was intoxicated when he committed the crimes nor mention that theory when arguing to the jury, he did not present a voluntary intoxication defense. Thus, counsel's failure to request CALCRIM No. 3426 did not prejudice defendant because it is not reasonably probable a jury would have used the instruction to find defendant lacked the specific intent required for the charged crimes.
III
Defendant Forfeited His Claim Regarding The Instruction
On A Defendant's Right To Not Testify
The trial court instructed the jury regarding defendant's testimony as follows: "When [defendant] testified, he was in custody. The fact that a witness is in custody does not by itself make a witness more or less believable. Evaluate the witness's testimony according to the instructions I have given you. [¶] A defendant has an absolute Constitutional right not to testify. He or she may rely on the state of the evidence and argue that the People have failed to prove the charges beyond a reasonable doubt."
Defendant argues this instruction was erroneous because he did testify and, by telling the jury that he could have relied on the inadequacies of the prosecution's evidence, it suggested defendant believed the prosecution met its burden and thus decided to testify. This suggestion, defendant argues, "effectively reduced the prosecution's burden of proof" violating his right to due process.
Defendant acknowledges he did not object to the giving of this instruction, but in fact said it was "fine" as worded when asked by the trial court. "Generally, a party forfeits any challenge to a jury instruction that was correct in law and responsive to the evidence if the party fails to object in the trial court. [Citations.] The rule of forfeiture does not apply, however, if the instruction was an incorrect statement of the law [citation], or if the instructional error affected the defendant's substantial rights. [Citations.] ' "Ascertaining whether claimed instructional error affected the substantial rights of the defendant necessarily requires an examination of the merits of the claim -- at least to the extent of ascertaining whether the asserted error would result in prejudice if error it was." ' " (People v. Franco (2009) 180 Cal.App.4th 713, 719.) We conclude defendant was not prejudiced by the court's instruction regarding a defendant's right to not testify, and thus his substantial rights were not affected.
The focus of our inquiry is upon whether the jury may have erroneously and prejudicially interpreted the instruction in the manner proposed by defendant. "In evaluating a claim the jury could have misconstrued an instruction, the test on review is ' " 'whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way' that violates the Constitution." ' " (People v. Anderson (2007) 152 Cal.App.4th 919, 938.) "[W]e must first ascertain what the relevant law provides, and then determine what meaning the instruction given conveys. The test is whether there is a reasonable likelihood that the jury understood the instruction in a manner that violated the defendant's rights." (People v. Andrade (2000) 85 Cal.App.4th 579, 585; People v. Warren (1988) 45 Cal.3d 471, 487; People v. Smith (1992) 9 Cal.App.4th 196, 201.)
"[A]n erroneous instruction requires reversal only when it appears that the error was likely to have misled the jury [citations], and whether an erroneous or inartfully phrased instruction misled the jury to the defendant's prejudice is determined by reviewing the instructions as a whole." (People v. Owens (1994) 27 Cal.App.4th 1155, 1159.) "The meaning of instructions is no longer determined under a strict test of whether a 'reasonable juror' could have understood the charge as the defendant asserts, but rather under the more tolerant test of whether there is a 'reasonable likelihood' that the jury misconstrued or misapplied the law in light of the instructions given, the entire record of trial, and the arguments of counsel." (People v. Dieguez (2001) 89 Cal.App.4th 266, 276; People v. Smithey (1999) 20 Cal.4th 936, 963.)
Defendant contends the instruction that a criminal defendant may rely on the state of the evidence to argue that the People have failed to meet their burden, also tells the jury the reverse premise -- that defendant's decision to testify indicates the prosecution proved the charges beyond a reasonable doubt. Nothing in the challenged instruction suggested that form of opposite inference to the jury, and we do not find a reasonable likelihood that the jury applied the instruction to reduce the prosecution's burden of proof.
First, the jurors would have been forced to engage in exceedingly convoluted logic to turn the instruction completely around and conclude that defendant's testimony conceded proof of the charges beyond a reasonable doubt, when such an admonition was never given to them. Second, other instructions given by the trial court reinforced the essential and unwavering constitutional principle that the prosecution bears the burden of proof beyond a reasonable doubt. The jury was separately so instructed with the standard reasonable doubt instruction (CALCRIM No. 220), which included the caveats that each element of the charged crimes must be proved beyond a reasonable doubt, all evidence at trial must be considered and compared to determine if "the People have proved their case beyond a reasonable doubt," and unless the evidence (not defendant's decision to testify) proved defendant guilty beyond a reasonable doubt, he was entitled to acquittal. The People's burden of proof beyond a reasonable doubt was also incorporated into the instructions on the elements of each of the offenses and the procedures for completion of the verdict forms. The jury was further advised to evaluate the credibility and strength of each witness "by the same standard," which militated against the inference that defendant's testimony, unlike other witnesses, acknowledged the prosecution's proof of the crimes. (CALCRIM Nos. 226, 302.) Finally, the arguments of the prosecutor and defense counsel reinforced the prosecution's burden of proof without any insinuation that it was influenced or altered by defendant's decision to testify.
In light of the burden of proof and evidentiary instructions given by the court, which we presume the jury followed (People v. Adcox (1988) 47 Cal.3d 207, 253), it is not reasonably likely the jury would have misunderstood the instruction to mean essentially the converse of what it says (see People v. Anderson, supra, 152 Cal.App.4th 919, 938). We conclude that the prosecution's burden of proof was not diminished by the instruction, and defendant's constitutional right to proof beyond a reasonable doubt was not infringed. Thus, because the jury would not read the challenged instruction to diminish the prosecution's burden of proof, defendant was not prejudiced and his substantial rights were not affected. Accordingly, he forfeited this claim.
IV
There Was No Cumulative Error
Defendant seeks reversal based on cumulative error. "Under the 'cumulative error' doctrine, errors that are individually harmless may nevertheless have a cumulative effect that is prejudicial." (In re Avena (1996) 12 Cal.4th 694, 772, fn. 32.) Here, no cumulative error resulted. Defendant's own testimony established he was neither intoxicated nor acting in the heat of passion, making it unreasonable a jury would have believed the defenses he now asserts could have led to a better outcome. This is true, especially considering the jury instructions correctly conveyed the prosecution's burden of proof. Accordingly, there was no cumulative error.
V
Defendant Was Properly Sentenced To A
Consecutive Sentence For Vandalism
Defendant contends his sentence for vandalism must be stayed under Penal Code section 654 because he committed the vandalism at the same time he committed burglary and attempted murder, and because he harbored the same intent for all three crimes. The trial court stayed the sentence for burglary because the felony it was predicated upon was attempted murder. Defendant argues that because the means of entry for burglary was vandalism of Alkhayat's garage, the sentence for vandalism should also have been stayed. We disagree.
All further section references are to the Penal Code unless otherwise indicated.
Section 654, subdivision (a) provides in relevant part, "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." The purpose of this statute "is to insure that a defendant's punishment will be commensurate with his culpability." (People v. Perez (1979) 23 Cal.3d 545, 551.) Section 654 "prohibits multiple sentences where the defendant commits different acts that violate different statutes but the acts comprise an indivisible course of conduct engaged in with a single intent and objective." (People v. Alvarado (2001) 87 Cal.App.4th 178, 196.) But where a defendant acts with "multiple criminal objectives that [a]re independent of and not merely incidental to each other, then he may be punished for the independent violations committed in pursuit of each objective even though the violations were parts of an otherwise indivisible course of conduct." (Ibid.)
"Whether section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination. [Citations.] Its findings will not be reversed on appeal if there is any substantial evidence to support them. [Citations.] We review the trial court's determination in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence." (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.)
Here, defendant did not merely intend to gain entry to Alkhayat's house by running into the garage door with his truck -- defendant intended to destroy the garage door. Defendant repeatedly rammed into the garage door completely destroying the door, the car inside of the garage, and a refrigerator. Defendant's conduct demonstrated the intent and objective to destroy property, an objective separate from the intent to enter and kill, which he harbored during the commission of the burglary and attempted murder. Thus, substantial evidence supports the court's imposition of a consecutive sentence for the vandalism conviction.
VI
Defense Counsel Was Not Ineffective During Sentencing
Defendant contends the court abused its discretion by imposing the upper term of imprisonment for the attempted murder conviction. More specifically, defendant argues the court made improper findings regarding the aggravating factors it relied on. Defendant acknowledges his counsel did not object at sentencing to any of the arguments he now advances. He again argues he was provided with ineffective assistance of counsel. We disagree.
As described, to successfully raise an ineffective assistance of counsel claim, defendant must show his counsel's performance fell below an objective standard of reasonableness and that he suffered prejudice as a result. (People v. Carter, supra, 36 Cal.4th at p. 1189.) Defendant has not met his burden.
"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. . . . The court shall set forth on the record the reasons for imposing the term selected . . . ." (§ 1170, subd. (b).) When "selecting one of the three authorized terms of imprisonment referred to in section 1170[, subdivision ](b), the sentencing judge may consider circumstances in aggravation or mitigation, and any other factor reasonably related to the sentencing decision." (California Rules of Court, rule 4.420(b).)
All further rule references are to the California Rules of Court. --------
Because "[n]either section 1170 nor the [rules] attempt to provide an inclusive list of aggravating circumstances . . . a trial court is free to base an upper term sentence upon any aggravating circumstance that (1) the court deems significant and (2) is reasonably related to the decision being made." (People v. Moberly (2009) 176 Cal.App.4th 1191, 1196.) Consequently, a trial court is not limited only to those factors specifically listed in rule 4.421, which does not provide a comprehensive list.
In this respect, "[t]he essence of 'aggravation' relates to the effect of a particular fact in making the offense distinctively worse than the ordinary." (People v. Moreno (1982) 128 Cal.App.3d 103, 110.) "Circumstances in aggravation include factors relating to the crime and factors relating to the defendant." (Rule 4.421.) A single aggravating circumstance is sufficient to make a defendant eligible for an upper term and for the trial court to impose an upper term sentence. (People v. Black (2007) 41 Cal.4th 799, 813, 815, overruled on other grounds by Cunningham v. California (2007) 549 U.S. 270 .)
It is apparent from the record that the trial court relied upon at least one appropriate aggravating factor in imposing the upper term. The trial court cited as an aggravating factor that defendant engaged in a substantial amount of planning when committing his crimes. Defendant now challenges this finding relying on the jury's finding that he did not premeditate or deliberate the attempted murder. As the People point out, however, this jury finding did not preclude the sentencing court from relying on this factor to impose the upper sentence.
In People v. Clark (1990) 50 Cal.3d 583, 638, our Supreme Court found a trial court properly relied on the fact defendant engaged in substantial planning when committing an attempted murder, despite the fact that the jury found defendant did not premeditate or deliberate the same offense. It reasoned that because evidence showed defendant "indisputably premeditated and planned in advance the arson itself, and had done so for the purpose of causing [his victim] to suffer," the aggravating factor could be relied upon to impose the upper term. (Id. at pp. 637-638.) Similarly, evidence here indisputably shows defendant planned the assault on Alkhayat with a deadly weapon "for hours" before following through with his plan to "kick [Alkhayat's] ass." Like the defendant in Clark, defendant planned to do so for the purpose of causing his victim to suffer. (Id. at p. 638.) Thus, the sentencing court could properly rely on this factor when imposing the upper sentence for attempted murder.
Overall, the trial court enjoys broad discretion in its sentencing decisions, subject only to review for abuse of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847.) No abuse of discretion has been shown. The trial court relied upon at least one valid aggravating factor when imposing the upper term, which is all that is required to uphold the trial court's sentencing decision. (People v. Osband (1996) 13 Cal.4th 622, 730.) Consequently, defendant cannot establish that defense counsel was ineffective for failing to challenge the trial court's use of aggravating factors to impose an upper term of imprisonment because any deficient performance did not result in prejudice. (Strickland v. Washington, supra, 466 U.S. at p. 694 [80 L.Ed.2d at pp. 697-698].)
DISPOSITION
The judgment is affirmed.
/s/_________
Robie, Acting P. J. We concur: /s/_________
Duarte, J. /s/_________
Hoch, J.