Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County Super.Ct.No. FVA026303, Michael A. Knish, Temporary Judge. Affirmed.
Linda K. Harvie, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Alana Cohen Butler, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P. J.
Defendant Asencion Hernandez Rendon appeals his conviction for driving under the influence of alcohol in violation of Vehicle Code section 23153, subdivision (a). He seeks a remand for resentencing, because he contends the trial court violated Penal Code section 1170, subdivision (b), when it first used his prior convictions to increase his sentencing exposure under Vehicle Code section 23566, subdivision (a), and then cited his prior convictions again as an aggravating factor to impose the upper term.
FACTUAL AND PROCEDURAL BACKGROUND
Testimony at trial indicated defendant crashed the vehicle he was driving into the back of a car that was stopped at a stop sign. As a result, that car was pushed into the van stopped in front of it, and the van was pushed into the intersection. An elderly couple was in the car, and both were injured in the crash. The husband had to be cut out of the car by the fire department. He had scars on his legs and continued to experience pain. The wife suffered a broken neck, seven broken ribs, and a broken pelvis. She was in the hospital for more than two weeks and required substantial rehabilitation. The driver of the van suffered neck, back, and shoulder pain and needed physical therapy for about six months. Passengers in the van were members of a girls’ soccer team but the girls were not seriously injured.
When police arrived at the scene, defendant was unconscious inside his car and smelled of alcohol. There were no skid marks on the road, suggesting defendant never made any attempt to stop. An almost empty can of beer and an empty pint-sized bottle of rum were found in defendant’s car. Defendant’s blood was drawn in the hospital, and his blood-alcohol level was 0.29 percent. An average person would have to consume 14 or 15 drinks to reach that level.
Defendant was charged with driving under the influence with prior convictions causing injury to three different individuals in violation of Vehicle Code section 23153, subdivision (a) (count 1), and driving under the influence with prior convictions and with a blood-alcohol level greater than 0.08 percent causing injury to three different individuals in violation of Vehicle Code section 23153, subdivision (b) (count 2). With respect to counts 1 and 2, the information listed four prior convictions within the meaning of Vehicle Code section 23566, subdivision (a), from 1992, 1993, 1998, and 1999. However, the prosecution did not proceed on the two prior convictions from 1992 and 1993 under Vehicle Code section 23566, subdivision (a), because they were determined to be more than 10 years old. The information further alleged that in committing counts 1 and 2, defendant personally inflicted great bodily injury on a victim who was 70 years of age within the meaning of Penal Code section 12022.7, subdivision (c), and caused bodily injury to a victim within the meaning of Vehicle Code section 23558.
A jury found defendant guilty of counts 1 and 2 and also found true the special allegations under Penal Code section 12022.7, subdivision (c), and Vehicle Code section 23558. In a separate proceeding, the trial court found true the alleged prior convictions from 1998 and 1999. The trial court sentenced defendant to a total of 10 years in state prison. To reach the sentence, the trial court imposed an aggravated term of four years on count 1 pursuant to Vehicle Code section 23566, subdivision (a). To this four-year term, the trial court added two enhancements for the injuries caused to the victims. For the more serious injuries to the wife, the trial court added a consecutive term of five years under Penal Code section 12022.7, subdivision (c). For the injuries to the husband, the trial court added a consecutive one-year term pursuant to Vehicle Code section 23558. In addition, the court imposed an aggravated term of three years on count 2 but stayed it pursuant to Penal Code section 654.
DISCUSSION
Defendant was found guilty by the jury of count 1, violating Vehicle Code section 23153, subdivision (a). Vehicle Code section 23153, subdivision (a), sets forth the elements of the substantive offense: “It is unlawful for any person, while under the influence of any alcoholic beverage . . . to drive a vehicle and concurrently do any act forbidden by law, or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver.” Vehicle Code section 23566, subdivision (a), sets forth a base term of two, three, or four years in state prison for repeat offenders of Vehicle Code section 23153 if the new offense “occurred within 10 years of two or more” prior convictions for driving under the influence. The trial court sentenced defendant pursuant to Vehicle Code section 23566, subdivision (a), because he had prior convictions for driving under the influence from 1998 and 1999, and his new offense occurred less than 10 years later, in 2006. The trial court selected the upper base term of four years because of several aggravating factors, one of which was defendant’s “five prior convictions of driving under the influence.”
“Base term,” is defined in California Rules of Court, rule 4.405(2), as “the determinate prison term selected from among the three possible terms prescribed by statute or the determinate prison term prescribed by law if a range of three possible terms is not prescribed.”
The trial court stated it imposed an aggravated term for the following reasons: “One, [defendant] has five prior convictions of driving under the influence; number two, he was driving with a .29 blood alcohol in this case; number three, he has shown no remorse or recognition of his problem or the seriousness of his behavior. I am not going to consider the bodily injury as an aggravating factor since that’s the basis of an enhancement.”
Defendant argues the trial court violated the prohibition against the “dual use” of facts in Penal Code section 1170, subdivision (b), because it first used his prior convictions from 1998 and 1999 to bring him within Vehicle Code section 23566, subdivision (a), and then cited his prior convictions again as an aggravating factor to impose the upper term. Defendant contends the use of his prior convictions from 1998 and 1999 to bring him within Vehicle Code section 23566, subdivision (a), “significantly enhanced” his sentence, so Penal Code section 1170, subdivision (b), prohibits the use of this fact again to impose an upper term. Essentially, defendant’s argument is that Vehicle Code section 23566, subdivision (a), is equivalent to an “enhancement” as that term is used in Penal Code section 1170, subdivision (b), because it has already factored in the existence of prior convictions in setting the base term of two, three, or four years in state prison for the offense.
The record shows defendant’s counsel did not object to the sentence on this ground in the trial court. A defendant who does not make a specific objection in the trial court may not raise on appeal any claims “involving the trial court’s failure to properly make or articulate its discretionary sentencing choices. Included in this category are 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.” (People v. Scott (1994) 9 Cal.4th 331, 353.) This is because “[r]outine defects in the court’s statement of reasons are easily prevented and corrected if called to the court’s attention.” (Ibid.) In People v. Gonzalez (2003) 31 Cal.4th 745, 755-756, our Supreme Court applied the forfeiture doctrine in the context of a dual use argument. The defendant argued the trial court improperly relied on the defendants’ use of firearms “in two different aspects of their sentences.” Because of their failure to object on this ground at the time of sentencing, the Supreme Court declined to consider the claim. (Ibid.)
Based on the foregoing, we conclude defendant forfeited his dual use claim under Penal Code section 1170, subdivision (b), because he did not object on this ground in the trial court. Alternatively, defendant cites the United States Supreme Court’s decision in Strickland v. Washington (1984) 466 U.S. 668 (Strickland), and argues his counsel’s failure to object to the dual use of facts during his sentencing hearing constituted ineffective assistance of counsel under the Sixth Amendment. We therefore address defendant’s argument in the context of his ineffective assistance of counsel claim. A cognizable claim of ineffective assistance of counsel requires a showing “counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” (Strickland, at p. 687.) “[T]he performance inquiry must be whether counsel’s assistance was reasonable considering all the circumstances.” (Id. at p. 688.) To prevail on an ineffective assistance of counsel claim, a defendant must also establish counsel’s performance prejudiced his defense. (Id. at p. 687.) To establish prejudice, a defendant must demonstrate “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 probability sufficient to undermine confidence in the outcome.” (Id. at p. 694.) Because a defendant must prove both elements of the Strickland test in order to prevail, courts may reject an ineffective assistance of counsel claim if it finds counsel’s performance was reasonable or the claimed error was not prejudicial. (Id. at p. 687.)
Penal Code section 1170, subdivision (b), states in pertinent part as follows: “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. . . . [T]he court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law.” In addition, rule 4.420 of the California Rules of Court provides in pertinent part as follows: “(c) To comply with [Penal Code] section 1170[, subdivision] (b), a fact charged and found as an enhancement may be used as a reason for imposing the upper term only if the court has discretion to strike the punishment for the enhancement and does so. The use of a fact of an enhancement to impose the upper term of imprisonment is an adequate reason for striking the additional term of imprisonment, regardless of the effect on the total term. [¶] (d) A fact that is an element of the crime upon which punishment is being imposed may not be used to impose a greater term.”
In our view, the problem with defendant’s argument is that Vehicle Code section 23566, subdivision (a), does not fit within the narrow definition of “enhancement” in California Rules of Court, rule 4.405(3), even though a defendant’s prior convictions are effectively used under this section to enhance or increase a defendant’s sentencing exposure. The term “enhancement” is defined in California Rules of Court, rule 4.405, as “an additional term of imprisonment added to the base term.” An “enhancement” is sometimes imposed (i.e., added to the base term) because a defendant has qualifying prior convictions. For example, Penal Code section 667, subdivision (a)(1), provides that “any person convicted of a serious felony who previously has been convicted of a serious felony . . . shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately.” Unlike Penal Code section 667, subdivision (a)(1), Vehicle Code section 23566, subdivision (a), does not provide for “an additional term of imprisonment added to the base term” (Cal. Rules of Court, rule 4.405(3)) because of qualifying prior convictions. Instead, the existence of prior qualifying convictions of two or more is simply factored into the applicable base terms of two, three, or four years in state prison.
As both parties acknowledge, our Supreme Court in People v. Coronado (1995) 12 Cal.4th 145, 152, footnote 5 (Coronado), rejected a dual use argument under similar circumstances. The defendant in Coronado was convicted of drunk driving under Vehicle Code section 23152, subdivision (a), and sentenced under former Vehicle Code section 23175. These statutes are structured similarly to the two statutes applied to count 1 in this case. Vehicle Code section 23152, subdivision (a), makes it unlawful to drive a vehicle while under the influence of alcohol or drugs, but unlike Vehicle Code section 23153, subdivision (a), a conviction under Vehicle Code section 23152, subdivision (a), does not require “bodily injury” to a victim as a result of the defendant’s drunk driving. Former Vehicle Code section 23175 was structured similar to Vehicle Code section 23153, subdivision (a), in that the defendant’s sentencing exposure for a violation of Vehicle Code section 23152, subdivision (a), was elevated to a felony if the new offense was committed “ ‘within seven years of three or more’ ” prior convictions for drunk driving. (Coronado, at p. 150.)
Similar to this case, the defendant’s third prior offense for driving under the influence in Coronado was first used to increase the defendant’s sentencing exposure on the new drunk driving offense to a felony under former Vehicle Code section 23175. This same prior conviction was then used again to impose a prior prison term enhancement under Penal Code section 667.5, subdivision (b). (Coronado, supra, 12 Cal.4th at pp. 149-150.) However, this is where the similarities in the two cases end. In this case, the trial court used defendant’s prior drunk driving convictions a second time as an aggravating factor to justify imposing an upper base term. After rejecting two other dual use arguments based on legislative intent and the prohibition against multiple punishments in Penal Code section 654, the Supreme Court in Coronado also addressed a dual use argument under Penal Code section 1170, subdivision (b), in a footnote. In its abbreviated analysis of this issue, the Supreme Court acknowledged the existence of two dual use prohibitions, which are the same as or similar to those currently available under Penal Code section 1170, subdivision (b), and implemented at California Rules of Court, rule 4.420(c), (d). Without explaining why, the Supreme Court concluded the facts in Coronado did not “fit within the parameters” of these two dual use prohibitions. (Coronado, at pp. 159-160, fn. 10.) However, because the second use of the prior conviction in Coronado was to impose a prior prison term enhancement under Penal Code section 667.5, subdivision (b), there was no reason for the Supreme Court to decide the dual use issue defendant has presented in this case. As a result, Coronado does not support defendant’s dual use argument and is not helpful to our analysis here.
Citing legislative intent, the defendant in Coronado argued a prison sentence imposed under former Vehicle Code section 23175 was limited to a maximum of three years and could not be increased by the addition of the prior prison term enhancement under Penal Code section 667.5, subdivision (b). The Supreme Court disagreed based on the mandatory language in Penal Code section 667.5, subdivision (b), as well as a lack of evidence to indicate a legislative intent under Vehicle Code section 23175 “to disallow additional punishment where a qualifying prior conviction resulted in a prison term.” (Coronado, supra, 12 Cal.4th at pp. 153-155.) The Supreme Court in Coronado also rejected the defendant’s argument that the dual use of his third prior conviction violated the prohibition against multiple punishments in Penal Code section 654. (Coronado, at p. 159.)
To support his interpretation of Penal Code section 1170, subdivision (b), defendant has cited other cases that have decided similar issues. However, there is nothing in these cases that convince us defendant’s interpretation of Penal Code section 1170, subdivision (b), is a correct one. At least two of these cases support the People’s contention that defendant’s increased sentencing exposure under Vehicle Code section 23566, subdivision (a), does not constitute an “enhancement” for purposes of the dual use prohibition in Penal Code section 1170, subdivision (b). For example, in People v. Whitten (1994) 22 Cal.App.4th 1761 (Whitten), the defendant pled guilty to willfully and unlawfully molesting a child under the age of 18 years in violation of Penal Code section 647.6. He also admitted a prior conviction for a lewd or lascivious act upon a child under Penal Code section 288, subdivision (a). (Whitten, at p. 1764.) This prior conviction exposed the defendant to a significantly greater punishment for the new offense under Penal Code section 647.6, which requires imprisonment in the state prison for the second and each subsequent conviction, as well as imprisonment in the state prison for two, four, or six years for any violation of this section after a previous felony conviction under Penal Code section 288. The trial court also cited this prior conviction as the sole aggravating factor to justify imposing the upper base term of six years. (Whitten, at pp. 1764-1765.) As in this case, the defendant in Whitten argued on appeal that this dual use violated Penal Code section 1170, subdivision (b). (Whitten, at p. 1765.) The Court of Appeal disagreed because the “elevating language” in Penal Code section 647.6, which provides for increased punishment if the defendant has a prior conviction under Penal Code section 288, is neither an element of the offense nor an enhancement. (Whitten, at pp. 1765-1767.)
Similarly, the defendant in People v. Bowen (1992) 11 Cal.App.4th 102 (Bowen), pled guilty to two consolidated charges of driving under the influence of alcohol in violation of Vehicle Code section 23152, subdivisions (a) and (b). (Bowen, at p. 103.) In addition, he admitted three prior convictions for alcohol-related driving offenses, which exposed him to a prison sentence under former Vehicle Code section 23175. (Bowen, at p. 103.) The trial court relied on various aggravating factors, including the defendant’s prior convictions, to deny probation and impose a prison sentence. (Id. at pp. 104-105.) On appeal, defendant argued the prior convictions constituted an element of the offense under California Rules of Court, former rule 430(d), now known as rule 4.420(d), because they were necessary to bring him within the elevated sentencing provision of former Vehicle Code section 23175. As a result, the defendant argued the trial court could not use the prior convictions for the dual purpose of satisfying an element of the offense and denying probation. (Bowen, at p. 105.) The Court of Appeal concluded the prior convictions were merely “facts enhancing punishment,” not an element of the offense, and could therefore be used for both purposes. (Id. at p. 106.)
Defendant has also cited People v. Weathington (1991) 231 Cal.App.3d 69 (Weathington), in support of his position. Weathington does state that “prior offender status is not an element of the crime [of driving under the influence] but an enhancement.” (Id. at p. 91.) However, defendant’s reliance on Weathington is misplaced, because the case was decided in an entirely different context. The defendant in Weathington was charged with drunk driving under Vehicle Code section 23152, subdivision (a), with three or more priors within the meaning of former Vehicle Code section 23175. (Weathington, at p. 76.) He was not challenging his sentence based on the dual use prohibition in Penal Code section 1170, subdivision (b). Rather, he was arguing the trial court should have granted his motion to bifurcate trial on the issue of guilt on the substantive offense from the issue of his prior drunk driving convictions. Because Proposition 8 requires proof in open court of the fact of a prior felony conviction when it is an element of the charged offense, the defendant was arguing Proposition 8 did not apply. Instead, he argued his prior drunk driving convictions were “enhancement priors,” not an element of the substantive offense. (Weathington, at p. 85.) The Court of Appeal agreed, and concluded the defendant’s motion to bifurcate should have been granted. (Id. at p. 90.) Thus, the Court of Appeal had no reason to consider whether the elevating language in former Vehicle Code section 23175, or in other similar statutes such as the one at issue here, could be read to fall within the narrow definition of “enhancement” in California Rules of Court, rule 4.405(3).
Based on the foregoing, we conclude defendant’s increased sentencing exposure under Vehicle Code section 23566, subdivision (a), does not constitute an “enhancement” for purposes of the dual use prohibition in Penal Code section 1170, subdivision (b). For the same reason, we also reject defendant’s argument the trial court violated the dual use prohibition in Penal Code section 1170, subdivision (b), because it used a prior conviction to elevate his sentence under Vehicle Code section 23566, subdivision (a), and then cited his unsatisfactory performance on probation from this same prior conviction as an aggravating factor to impose the upper term. In addition, because defendant’s argument is essentially unsupported, we cannot conclude his trial counsel’s performance was deficient because he did not object to the sentence based on Penal Code section 1170, subdivision (b). Nor can we conclude defendant was prejudiced by counsel’s failure to object. Only a single aggravating factor is necessary to make it lawful for the trial court to impose an aggravated prison term. (See Pen. Code, § 1170, subd. (b); People v. Black (2007) 41 Cal.4th 799, 815, citing People v. Osband (1996) 13 Cal.4th 622, 728.) Here, the trial court cited no mitigating factors and relied on at least two aggravating factors that were not based on defendant’s prior convictions or unsatisfactory performance on probation. Each of these factors, standing alone, would be enough to justify imposing the upper term. As a result, there is no reasonable probability of a more favorable sentence if counsel had objected on dual use grounds.
DISPOSITION
The judgment is affirmed.
We concur: HOLLENHORST, J., MILLER, J.