P. v. Johnson

















Filed 4/26/13 P. v. Johnson CA2/8

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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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



SECOND
APPELLATE DISTRICT



DIVISION
EIGHT




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THE PEOPLE, Plaintiff and Respondent, v. MAURICE JOHNSON, Defendant and Appellant.

B241562 (Los Angeles County Super. Ct. No. NA090680)

APPEAL from
a judgment of the Superior Court
of Los Angeles County,
Arthur H. Jean, Jr., Judge.
Affirmed.



Gerald
Peters, under appointment by the Court of Appeal, for Defendant and Appellant.



Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney
General, Lawrence M. Daniels and Allison H. Chung, Deputy Attorneys General,
for Plaintiff and Respondent.



_______________________





Defendant Maurice Johnson appeals from his convictions of
attempted murder, shooting at an occupied motor vehicle, assault with a firearm
and possession of a firearm by a felon.
He contends: (1) imposition of a
Penal Code section 667.5 enhancement on two counts was error; (2) the
trial court failed to state valid reasons for selecting the upper term; and (3)
trial counsel was ineffective in
failing to object to these two sentencing errors.href="#_ftn1" name="_ftnref1" title="">>[1] We affirm.



FACTUAL AND
PROCEDURAL BACKGROUND



Because
defendant does not challenge the sufficiency of the evidence, a detailed
statement of facts is not necessary. It
is sufficient to state that in the early morning hours of October 31, 2011, Douglas Price sustained two
gunshot wounds when defendant fired multiple rounds from a .22-caliber rifle at
Price, while Price was sitting in his car.

Defendant was charged in a Third
Amended Information with attempted murder (count 1); shooting at an occupied
vehicle (count 2); assault with a firearm (count 3); and possession of a
firearm by a felon (count 4).href="#_ftn2"
name="_ftnref2" title="">>[2]>
As to all counts, three
section 667.5 prior prison terms were alleged. As to counts 1 and 2, section 12022.53,
subdivisions (b), (c) and (d) gun use enhancements were also alleged. As to counts 1 and 3, section 12022.7
great bodily injury enhancements were alleged.
Defendant pled guilty to count 4 and admitted the prior conviction
allegations. The jury found defendant
guilty of counts 1, 2 and 3 and found true the gun use and great href="http://www.fearnotlaw.com/">bodily injury enhancements as to each of
those counts. Defendant was sentenced to
a total of 37 years to life in prison comprised of:



·
Count 1 (attempted murder)

Thirty-seven years to life (the
upper term of 9 years, plus 1 year for each of three section 667.5 prior
prison terms, plus 25 years to life for the section 12022.53, subdivision
(d) gun use enhancement); the section 12022.7 great bodily injury
enhancement was stayed pursuant to section 654.

·
Count 4 (felon in possession of a firearm)

The
upper term of 3 years to run concurrently.

·
Count 2 (shooting at an occupied motor
vehicle)

Thirty-two years to life (the
upper term of 7 years, plus 25 years to life for the section 12022.53,
subdivision (d) gun use) stayed pursuant to section 654.

·
Count 3 (assault with a firearm)

Fourteen years (the upper term of
4 years, plus 10 years for the section 12022.5 gun use) stayed pursuant to
section 654.

Defendant timely appealed.



DISCUSSION



A.
Imposition
of the Section 667.5 Enhancement Was Not Error



Defendant contends the trial court
erred in imposing a section 667.5 prior prison enhancement on both counts one
and four. The People counter that the
record shows the trial court imposed three section 667.5 enhancements only on
count 1, the attempted murder charge.
Neither side is quite right. The
court correctly imposed three, one-year prior prison term enhancements as part
of its sentence, but those terms were not tied to any particular count. The parties agree that that defendant had
served three separate prior prison terms without a wash-out period, thus
qualifying for an enhancement for each prior prison term under section
667.5. Prior prison term enhancements
are not imposed on a particular count; instead, where they are applicable, the
enhancements are imposed as part of the overall sentence. Our Supreme Court has held that so-called
status enhancements – those that are based on defendant’s prior record, for
example – are distinguished from crime specific enhancements such as when a
defendant has caused great bodily injury or used a firearm. (People
v. Tassell (1984) 36 Cal.3d 77, 90, overruled on another ground by >People v. Ewoldt (1994) 7 Cal.4th
380, 387; People v. Byrd (2001)
89 Cal.App.4th 1373, 1380.) Status
enhancements are imposed once per case, irrespective of the number of counts of
which a defendant has been convicted. As
Tassell summarized: “[E]nhancements for prior convictions do not
attach to particular counts but instead are added just once as the final step
in computing the total sentence.” (>Tassell, at p. 90.) The record shows the trial court did exactly
that by imposing a one-year enhancement for each of the three prior prison
terms, for a total of an additional three years. There was no error.



B. Defendant
Forfeited His Challenge to the Trial Court’s Statement of Reasons



Defendant
contends the trial court failed to state valid reasons for imposing the upper
term on all counts. He argues that
imposition of the high term cannot be based on the decision to select
concurrent rather than consecutive sentences on other counts. We conclude that defendant’s failure to
timely object constitutes a forfeiture of the claim. Even if there was no forfeiture, the trial
court correctly applied California
sentencing laws.

Where a statute specifies three
potential terms of imprisonment, the trial court must select one of the
specified terms. (§ 1170, subd.
(a)(3).) The choice rests within the
trial court’s sound discretion and it must select the term which, exercising
discretion, it believes best serves the interest of justice. (§ 1170, subd. (b).) It must state its reasons for the selection
on the record. (Ibid.; see also Cal.
Rules of Court, rule 4.420(e).) In
making its selection, the trial court “may consider circumstances in
aggravation or mitigation, and any other factor reasonably related to the
sentencing decision.”
(Rule 4.420(b).) One of the
circumstances in aggravation that the court may consider is that “[t]he defendant
was convicted of other crimes for which consecutive sentences could have been
imposed but for which concurrent sentences are being imposed.” (Rule 4.421(a)(7).)

Here, the trial court explained its
selection of the high term on count one as follows: “The court chooses the high base term of nine
years. And I do that because I intend
to, in count four, to run a concurrent sentence, not any other time for the
ex-con with a gun. That was a separately
punishable offense, but I am not going to add any more time. I choose the high base term of nine
years.” The trial court did not give any
additional explanation for its selection of the three-year high term on count
4, which it ordered to run concurrently to count 1, or on counts 2 and 3 which
it stayed pursuant to section 654.
Asked whether he had any thoughts on sentencing, defense counsel stated,
“I will file a notice of appeal.”

By not objecting to the trial
court’s stated reasons for selecting the high term, defendant forfeited his
claim that those reasons were improper.
(People v. Velasquez (2007)
152 Cal.App.4th 1503, 1511-1512.) Even
if the claim was not forfeited, we would find no error since the trial court’s
reason is among those listed in California Rules of Court, rule 4.421(a).



C. Defendant Has Not
Established Ineffective Assistance of Counsel



Defendant
contends he received ineffective assistance of counsel as a result of his trial
counsel’s failure to object to the trial court’s imposition of the
section 667.5 prior prison term enhancements and statement of reasons for
the selection of the high term on all counts.
We conclude there was no ineffective assistance.

“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 . . . by the Sixth Amendment.’ . . .
‘[T]he performance inquiry must be whether counsel’s assistance was reasonable
considering all the circumstances.’ ”
(People v. Jones (2009)
178 Cal.App.4th 853, 859-860, citations omitted.) The failure to make a meritless objection
does not constitute ineffective assistance of counsel. (People
v. Cunningham (2001) 25 Cal.4th 926, 1038 [failure to object to
claimed prosecutorial misconduct is not ineffective assistance of counsel when
there was no misconduct].)

Here, since
we have found the trial court’s imposition of the three one-year
section 667.5 prior prison term enhancements and the court’s reason for
selecting the high term were legally correct, defendant has failed to establish
trial counsel was ineffective for failing to make a meritless objection to
those sentencing choices.



DISPOSITION



The judgment is affirmed.







RUBIN,
J.

WE CONCUR:





BIGELOW,
P. J.







GRIMES,
J.