California Court of Appeal May 29, 2014 No. E058207Unpublished
Filed 5/29/14 P. v. Troncoso CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E058207
v. (Super.Ct.No. FVI901178)
ARTURO TRONCOSO, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Eric M. Nakata,
Judge. Affirmed in part; reversed in part.
Jill M. Klein, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
A. Natasha Cortina and Paige B. Hazard, Deputy Attorneys General, for Plaintiff and
Respondent.
A jury convicted defendant and appellant Arturo Troncoso of gross vehicular
manslaughter while intoxicated (count 2; Pen. Code, § 191.5, subd. (a)), driving under the
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influence causing injury (count 3; Veh. Code, § 23153, subd. (a)),1 and driving under the
influence with a blood alcohol level of 0.08 percent or greater while causing injury (count
revocation of the privilege of a person to drive a motor vehicle upon conviction under
Penal Code section 191.5, subdivision (a). “‘“‘[A] ruling or decision, itself correct in
law, will not be disturbed on appeal merely because given for a wrong reason.’”’
[Citations.]” (People v. Jackson (2014) 58 Cal.4th 724, 753.) Here, the court was not
aware defendant’s convictions on counts 3 and 4 were lesser included offenses of the
count 2 conviction. Thus, the court could not have known we would reverse the former
convictions. Regardless, the court’s order was correct in law and will not be disturbed on
appeal.
C. Sentencing Issues.
Defendant contends the court failed its duty to state its reasons for imposing the
aggravated term and that no factors on the record support the imposition of the upper
term. Therefore, defendant argues the matter must be remanded for resentencing. We
hold defendant forfeited the issue by failing to object below. To the extent we hold the
issue was forfeited, defendant maintains his counsel provided constitutionally ineffective
assistance of counsel (IAC) for failing to object. We hold defendant’s IAC claim fails
because the court satisfied its duty to articulate a legally permissible basis for imposing
the upper term.
1. Forfeiture.
“‘[C]omplaints about the manner in which the trial court exercises its sentencing
discretion and articulates its supporting reasons cannot be raised for the first time on
appeal.’ [Citation.] ‘Included [within the (forfeiture) doctrine] are cases in which the
stated reasons allegedly do not apply to the particular case, and cases in which the court
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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.’ [Citation.]” (People v. de Soto (1997) 54 Cal.App.4th 1, 8.)
“A fact that is an element of the crime upon which punishment is being imposed
may not be used to impose a greater term.” (Cal. Rules of Court, rule 4.420(d).) “It is
established that a circumstance that is an element of the substantive offense cannot be
used as a factor in aggravation. [Citations.] A sentencing factor is only an element of the
offense, however, if the crime as defined by statute cannot be accomplished without
performance of the acts which constitute such factor. [Citation.]” (People v. Burbine
(2003) 106 Cal.App.4th 1250, 1261-1262.) “In exercising his or her discretion in
selecting one of the three authorized prison terms referred to in [Penal Code] section
1170 [subdivision] (b), the sentencing judge may consider circumstances in aggravation
or mitigation, and any other factor reasonably related to the sentencing decision.” (Cal.
Rules of Court, rule 4.420(b).)
Here, although defense counsel argued for imposition of the lower term, he never
objected to the probation report or the court’s reliance upon defendant’s prior conviction
for the recommended aggravated term as a violation of the proscription against dual use
of a factor included as an element of the substantive offense for which defendant had
been convicted. Likewise, after the court pronounced sentence, it asked if there was
“[a]nything else for the record?” Defense counsel replied “No, sir.” Thus, defense
counsel had ample opportunity to object to the court’s ostensible failure to state its
reasons for imposing the upper term or its reliance upon defendant’s prior conviction for
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imposing that sentence. Therefore, defendant forfeited the sentencing contentions on
appeal.
2. Ineffective Assistance of Counsel.
“‘The law governing defendant’s claim is settled. “A criminal defendant is
guaranteed the right to the assistance of counsel by both the state and federal
Constitutions. [Citations.] ‘Construed in light of its purpose, the right entitles the
defendant not to some bare assistance but rather to effective assistance.’” [Citation.] It is
defendant’s burden to demonstrate the inadequacy of trial counsel. [Citation.] [The court
has] summarized defendant’s burden as follows: “‘In order to demonstrate ineffective
assistance of counsel, a defendant must first show counsel’s performance was “deficient”
because his “representation fell below an objective standard of reasonableness . . . under
prevailing professional norms.” [Citations.] Second, he must also show prejudice
flowing from counsel’s performance or lack thereof. [Citation.] Prejudice is shown
when 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 a
probability sufficient to undermine confidence in the outcome.”’” [Citation.]” (People v.
Vines (2011) 51 Cal.4th 830, 875-876.)
We discern no deficient performance of defense counsel below. Defendant
contends the court failed to state its reasons for imposing the aggravated term as required
by California Rules of Court, rule 4.406(b)(4). Here, however, the court indicated it had
read and considered the probation report prior to the hearing. The court then read from
the probation report the factors relating to defendant personally, his commission of the
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instant offenses, and his eligibility for probation. The court struck two of the mitigating
factors listed in the probation report. The court noted, “[t]he interesting thing about this,
I don’t see also the criteria that involves multiple victims. There [was] more than one
victim in this event, and that is a circumstance in aggravation.” The court then imposed
the aggravated term on count 2. It is readily apparent from the context of the hearing as a
whole that the court adopted the aggravating circumstances it read from the probation
report as its reasons for imposing the upper term. Thus, the court did not fail to state is
reasons for imposing the upper term and defense counsel’s performance was not deficient
for failing to object on that basis.
Defendant additionally maintains defense counsel failed to object to the court’s
dual use of defendant’s prior conviction as an aggravating factor and that no other factor
supports imposition of the upper term. First, one legally sufficient aggravating factor
justifies imposition of the upper term. (People v. Black (2007) 41 Cal.4th 799, 813.)
Here, the court’s stated reason, not listed in the probation report, that defendant’s
offenses involved multiple victims was, in and of itself, a sufficient basis to impose the
upper term. (Cal. Rules of Court, rule 4.408(a) [“The enumeration in these rules of some
criteria for the making of discretionary sentencing decisions does not prohibit the
application of additional criteria reasonably related to the decision being made. Any such
additional criteria must be stated on the record by the sentencing judge”].)
Second, defendant’s prior conviction was not an element of any of the substantive
crimes for which defendant was convicted. (Cal. Rules of Court, rule 4.420(b) [“A fact
that is an element of the crime upon which punishment is being imposed may not be used
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to impose a greater term”; italics added]; People v. Burbine, supra, 106 Cal.App.4th at p.
1261 [“It is established that a circumstance that is an element of the substantive offense
cannot be used as a factor in aggravation”; italics added].) Thus, consideration of
defendant’s prior DUI conviction when imposing the upper term did not violate the
proscription against dual use of factors relating to the convictions.
Third, the court noted defendant has sustained additional convictions and
sustained allegations other than the prior DUI conviction. Allegations in several juvenile
wardship petitions against defendant had been sustained for misdemeanor possession of
tear gas, misdemeanor petty theft, misdemeanor vandalism, and misdemeanor possession
of vandalism tools. Defendant had a prior adult conviction for vandalism. Defendant had
twice previously had his probation revoked. Fourth, defendant was on a probation when
he committed the instant offense.
Fifth and finally, defendant showed no remorse. As the probation report reflected,
although defendant admitted committing the instant offense, “defendant expressed
dismay at his personal distress, and the possible length of his incarceration; however, at
no point did he express any remorse for the death of a young woman, the physical
injuries incurred by her passenger, or the grief their families and friends will likely suffer
for some time to come. Nor did he express any concern for the physical wellbeing of his
passengers; they weren’t really his friends after all. The defendant’s complete lack of
remorse during the probation interview is of extreme concern.” At the sentencing
hearing, defendant’s sole statement consisted of the following: “I just want to ask all
families to forgive me, just forgive me for everything that happened. I just want to
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apologize, and that will be it.” Thus, the court stated legally permissible bases for
imposing the upper term, none of which violated the proscription against dual use of
factors relating to the conviction. Therefore, defense counsel did not perform deficiently
by declining to object on that basis.
DISPOSITION
Defendant’s convictions and attached enhancements on counts 3 and 4 are
reversed. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON J.
We concur:
HOLLENHORST Acting P. J.
RICHLI J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that the defendant's convictions for driving under the influence causing injury were lesser included offenses of gross vehicular manslaughter and must be reversed. The court further held that the trial court did not abuse its discretion in sentencing and that the defendant's ineffective assistance of counsel claim lacked merit.
Issues
Whether convictions for driving under the influence causing injury are lesser included offenses of gross vehicular manslaughter.
Whether the trial court erred in failing to state reasons for imposing an aggravated sentence.
Whether the trial court engaged in improper dual use of sentencing factors.
Whether trial counsel provided ineffective assistance by failing to object to the sentencing procedure.
Disposition. Affirmed in part; reversed in part.
Quotations verified verbatim against the opinion
“We reverse the convictions and attached enhancements in counts 3 and 4. In all other respects, the judgment is affirmed.”
“Here, as the parties agree, defendant’s convictions for driving under the influence causing injury and driving under the influence with a blood alcohol level of 0.08 percent or higher causing injury are necessarily, lesser included offenses”