P. v. Yang
Filed 12/19/08 P. v. Yang 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
(Butte)
----
THE PEOPLE, Plaintiff and Respondent, v. TENG YANG, Defendant and Appellant. | C058717 (Super. Ct. No. CM018068) |
Defendant Teng Yang appeals from his resentencing pursuant to People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval). He contends the trial court improperly used the same facts to impose the upper term on both an offense and an enhancement. Acknowledging that this contention was not raised in the trial court, he claims ineffective assistance of counsel. We shall conclude the contention is forfeited and lacks merit in any event. Therefore, we shall affirm.[1]
BACKGROUND
In 2003 defendant was convicted in Butte County Superior Court of assault with a semiautomatic firearm. (Pen. Code, 245, subd. (b).)[2] The jury also found defendant personally used a firearm ( 12022.5, subd. (a)(1)), personally inflicted great bodily injury ( 12022.7, subd. (a)), and committed the offense for the benefit of a street gang ( 186.22, subd. (b)). (People v. Yang (Aug. 3, 2007, C045254 [nonpub. opn.] (Yang I).)[3] The trial court imposed a 32-year prison sentence, which included the upper term on the assault count and the street gang enhancement. The court justified the upper terms on the grounds that the crime [enhancement] involved acts disclosing a high degree of callousness [and, as to the enhancement, acts of great violence]; the victim was vulnerable; [and] the execution of the crime [enhancement] indicated sophistication or professionalism. (Yang I, supra, C045254.)
On defendants first appeal, we reversed the street gang enhancement for insufficient evidence but otherwise affirmed defendants convictions and sentence. Defendant filed a petition for writ of certiorari with the United States Supreme Court challenging the upper term sentencing. After deciding Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856], which invalidated Californias former determinate sentencing law so far as it permitted imposition of the upper term based on facts not tried to a jury and found true beyond a reasonable doubt, the United States Supreme Court remanded the case to this court. In turn, we remanded for resentencing in accordance with Sandoval, supra, 40 Cal.4th 825. (Yang I, supra, C045254.)
On remand, the trial court struck the enhancement for infliction of great bodily injury. The court then imposed a total prison term of 19 years, consisting of consecutive upper terms on the assault count and the firearm use enhancement. In imposing the upper terms, the court cited not only the victims vulnerability and the planning or sophistication of the crime and enhancement, but also the fact, previously found true by the jury, that defendant inflicted great bodily injury. Defendant did not object.
DISCUSSION
Defendant contends the trial court made improper dual use of facts to impose the upper term on the assault count and the enhancement.[4] The contention is forfeited, but even if it were properly before us it could not succeed.
If a defendant fails to object to the trial courts exercise of sentencing discretion and statement of reasons therefor, any appellate claim of sentencing error is forfeited. (People v. Scott (1994) 9 Cal.4th 331, 356.) The only exception to this rule is if the sentence is unauthorized, meaning that it could not have been legally imposed under any circumstances. (Id. at p. 354.)
Defendant does not assert that the sentencing in this case was unauthorized; he concedes that his failure to object to the trial courts sentencing decisions forfeits his claim of error. He claims, however, that his trial counsels failure to object constituted ineffective assistance of counsel. We reject this contention because defendants proposed objection would have had no chance to succeed. (People v. Majors (1998) 18 Cal.4th 385, 403 [not ineffective assistance to refrain from futile objections].)
Defendant does not cite authority holding that a trial court may not use the same facts to impose the upper term on both an offense and a related enhancement: he merely asserts that this must be so by analogy to situations in which dual use of facts is prohibited. His analogy fails.
The trial court acted in conformity with the applicable sentencing rules. Rule 4.420(c) of the California Rules of Court (which the court cited) provides: To comply with section 1170(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 trial court complied with section 1170, subdivision (b) and rule 4.420(c) by striking the punishment for the great bodily injury enhancement found true by the jury, then using that fact instead as a reason for imposing the upper term as to both the assault count and the remaining enhancement.
Because defendant has not shown why the trial court could not have used the same facts to impose the upper term on both the offense and the enhancement, his claim that trial counsel was ineffective for not objecting to this sentencing decision fails.
DISPOSITION
The judgment is affirmed.
RAYE , J.
We concur:
SCOTLAND , P. J.
ROBIE , J.
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[1] Defendant also raises a constitutional challenge to the resentencing procedure authorized by Sandoval to preserve the issue for federal review. He acknowledges that this court is bound by Sandoval. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
[2] All further statutory references are to the Penal Code.
[3] We grant the Peoples request for judicial notice of the file in case No. C045254.
[4] It is not entirely clear whether defendant means this contention to apply to all of the facts the trial court cited to impose upper terms, or only to the fact the court used for the first time on remand: the infliction of great bodily injury. After arguing that the court made improper dual use of that fact, defendant asserts that the courts error was not harmless because the other two facts the court cited (victim vulnerability, and planning or sophistication) were not supported by the evidence. Because we find that defendants entire argument is forfeited, we need not address this point.
