1 Filed 5/29/14 P. v. Troncoso CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 APPELL ATE DISTRICT DIVISION TWO

THE PEOPLE, Plaintiff and Respondent,

v. ARTURO TRONCOSO, Defendant and Appellant. E058207 (Super.Ct.No. FVI901178) OPINION

APPEAL from the Superior Court of Sa n Bernardino County. Eric M. Nakata, Judge. Affirmed in part; reversed in part. Jill M. Klein, under appointment by th e 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, De puty Attorneys Genera l, 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 the2 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 4; Veh. Code, § 23153, subd. (b)). The jury additionally found true allegations attached to counts 2, 3, and 4, that defendant had proximately caused bodily injury (Veh. Code, § 23558) and personally inflicte d great bodily injury (Pen. C ode, § 12022.7) upon victims Susan Wallace (Wallace) and Ephraim Harris (Ha rris). The jury furthermore found true allegations attached to counts 3 and 4 that defendant had suffered a prior conviction for driving under the influence pur suant to section Vehicle Co de section 23152, subdivision (b). The court sentenced defendant to an ag gregate, determinate term of 16 years’ incarceration consisting of the following: the aggravated term of 10 years on count 2 and two consecutive terms of three years for each of the Penal Code section 12022.7 enhancements. The court imposed but stayed sentence on coun ts 3 and 4 and the attached enhancements pursuant to Penal Code section 654. On appeal, defendant contends his convic tions for the count 3 and 4 offenses and the true findings on the attached enhancements must be reversed because the substantive crimes are lesser included offenses of the coun t 2 offense. The Peop le agree. Defendant further argues the order revoking his drivi ng privileges must be stricken. Finally, defendant maintains the sentencing court erred in failing to state its reasons for imposing

1 All further statutory references ar e to the Vehicle Code unless otherwise indicated.3 the aggravated term on count 2 and abused its discretion in imposing the aggravated term based on factors already subsumed within the crimes for which the jury convicted him. We reverse the convictions and attached enha ncements in counts 3 a nd 4. In all other respects, the judgment is affirmed.
FACTUAL BACKGROUND On May 22, 2009, around 2:00 a.m., Stacy Clay was driving home from work when she noticed two sets of vehicle lights in her rear view mi rror approaching “very quickly.” “[I]t looked like they were racing each other . . . .” It appeared to her the vehicles were traveling between 80 and 90 miles per hour. A black truck, which had been stopped at a stop sign on a side street up ahead of her, pulled out and was struck by the speeding silver vehicle. The black tr uck was pushed between 200 and 300 feet and “smashed like an accordion.” Clay pulled over and called the San Bernar dino County Sheriff’s dispatch to report the collision. The passenger of the silver car was unconscious and pinned in the car by the dashboard. The passenger in the rear seat was moaning. Several sheriff’s deputies were dispatched to the site of the collision. A black Nissan Frontier and a silver BMW were invo lved in the accident. There were two women in the Frontier; the dr iver was deceased; the front passenger, Wallace, was taken to the hospital, where she was placed on life support. Defenda nt, the driver of the silver BMW, was lying outside his vehicle. Two other persons had been inside the BMW. A deputy approached defendant and sme lled the odor of alcohol. The deputy requested a nurse be dispatched to the loca tion; she arrived and c onducted a blood draw4 from defendant at 2:42 a.m. Defendant’s blo od alcohol level was 0.16 percent, twice the legal limit. A deputy later contacted defendant at the hospital. Defendant said he had consumed one 24-ounce beer at a friend’s part y. He had a 12-ounce beer, a mixed drink, and sips from his friends’ mixed vodka drinks at a bar thereafter. When the bar closed at 2:00 a.m., he left, driving his silver BMW, with his friends Harris and Andrue Jaynes. Defendant said he was traveling between 50 and 55 miles per hour until he accelerated up to 75 miles per hour to pass a vehicle in front of him. An officer from the Major Accident Investigation Team determined de fendant’s vehicle had been traveling at 81 miles per hour when it collided with the other vehicle. The forensic pathologist who conducte d the autopsy of the deceased victim testified the victim had sustai ned rib and pelvic fractures; in ternal bleeding from damage to her internal organs; fractures of both arms ; and contusions and ab rasions on her chest, arms, legs, and abdomen. Th e pathologist determined the cause of death was multiple blunt force injuries. Wallace “had significant head injury and bo ny fractures, especia lly to the face, and spinal injury. She wa s in critical condition. She requ ired intubation at the time.” Wallace had swelling of the brain, multiple faci al fractures, and lung contusions; she was on a ventilator. She was transferred to the IC U on June 3, 2009. Wallace testified she has no memory of the date of the accident. Ha lf her right side remains paralyzed and she has vision problems. Wallace will have back pr oblems for the rest of her life. Harris was5 treated at the hospital for a clos ed head injury with subdural and intracranial contusions. He also had clavicle and hand fractures. Defendant had sustained a prior conviction on February 23, 2007 , for driving with a blood alcohol level of 0.08 percent or highe r. At the time of his conviction, defendant
had been read the Watson 2 warning as follows: “‘Being under the influence of alcohol or drugs or both impairs your ability to safely operate a motor vehicle. Therefore, it is extremely dangerous to human lif e to drive while under the in fluence of alcohol or drugs or both. And if you continue to drive while under the influence of alcohol or drugs or both and, as a result of that driving, so meone is killed, you could be charged with murder.’” As a condition of hi s conviction, defendant had be en required to take a DUI first offenders’ program in which he had been taught the dangers of driving under the influence. Defendant testified he ha d one drink before leaving for the bar. Since several hours had elapsed since he had th e drink, he believed he was oka y to drive. At the bar he had one drink. When he left the bar he also felt okay to drive. Defendant sped up to 75 miles per hour in a 55-mile-per-hour zone in order to pass another vehicle. He collided with the black Nissan Frontier killing one of the victims.

2 People v. Watson (1981) 30 Cal. 3d 290, 298.6 DISCUSSION A. Counts 3 & 4 as Lesser Included Offenses of the Count 2 Offense. Defendant contends his c ount 3 and 4 convictions for driving under the influence causing injury (Veh. Code, § 23 153, subd. (a)) and driving under the influence with a blood alcohol level of 0.08 percent or higher causing injury (Veh. Code, § 23153, subd. (b)) must be reversed because they are lesser included offenses of his conviction in count 2 for gross vehicular manslaughter (Pen. Code , § 191.5, subd. (a)). The People agree. We will reverse the convictions and attached enhancements. “When a defendant is found guilty of both a greater and a necessarily lesser included offense arising out of the same act or course of conduct, and the evidence supports the verdict on the greater offense, that conviction is controlling, and the conviction of the lesser offense must be reversed. [Citations.]” ( People v. Sanders (2012) 55 Cal.4th 731, 736 .) Enhancement allegations may not be considered in determining lesser included offenses. ( People v. Ybarra (2008) 166 Cal.App.4th 1069, 1095, disapproved on another ground in People v. Gutierrez, S206365, S206771, SUPREME COURT OF CALIFORNIA, 2014 Cal. LEXIS 3135, May 5, 2014.) “Vehicle Code section 23153, subdivisio n (a) is necessarily included in Penal Code section 191.5. One pers on who injures a person while driving under the influence commits a violation of Vehicl e Code section 23153; and if that person dies from that injury—whether immediately or sometime late r—a violation of Penal Code section 191.5 has occurred.” ( People v. Miranda (1994) 21 Cal.App.4th 1464, 1468.) “In cases where one victim dies from an alcohol-related acc ident due to a viola tion of Vehicle Code7 sections 23140, 23152, or 2 3153, the Vehicle Code viola tion would always be a lesserincluded offense of [former Pe nal Code] section 192, subdiv ision (c)(3) [now Penal Code section 191.5, subdivision (a)].” ( People v. Binkerd (2007) 155 Cal.Ap p.4th 1143, 1149.) “Under the statutory elements test, the vi olation of Vehicle C ode section 23153 is necessarily a lesser included o ffense of [former Penal Code] section 192, subdivision (c)(3), and appellant cannot be convicted of violating both statutes.” ( Id . at p. 1150.) 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, le sser included offenses of gross vehicular manslaughter. Thus, defendant’s convictions for counts 3 and 4 must be reversed. Likewise, the enhancements attached to counts 3 and 4 must be stricken. ( People v. Binkerd , supra , 155 Cal.App.4th at p. 1150.) B. Revocation of Defendant’s Driver’s License. Defendant contends the or der revoking his driver’s lic ense pursuant to section 13352 must be stricken because that s ection provides for revocation only where the defendant has been convicted of a violation of section 23153. Since we have reversed defendant’s convictions on counts 3 and 4 fo r offenses under section 23153, he maintains the order revoking his driver’s license must be reversed. We disagree. The court revoked defendant’s driver’s license pursuant to Vehicle Code section 13352, which requires the suspension or revoca tion of anyone convicte d of a violation of Vehicle Code section 23153. Although we have reversed defendant’s convictions under Vehicle Code section 23153, Vehicle Code section 13351 , subdivision (a)(3) requires8 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 mere ly 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 c ourt 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 matt er must be remanded for resentencing. We hold defendant forfeited the issue by failing to ob ject below. To the extent we hold the issue was forfeited, defendant maintains his counsel provided cons titutionally ineffective assistance of counsel (IAC) for failing to obj ect. We hold defendant’s IAC claim fails because the court satisfied its duty to articul ate a legally permissible basis for imposing the upper term. 1. Forfeiture. “‘[C]omplaints abou t the manner in which the trial court exercises its sentencing discretion and articulates its supporting reas ons cannot be raised for the first time on appeal.’ [Citation.] ‘Included [within the (forfeiture) doctri ne] are cases in which the stated reasons allegedly do not apply to the particular case, and cases in which the court9 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 cr ime 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 el ement 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 constitu te 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 fa ctor reasonably related to the sentencing decision.” (Cal. Rules of Court, rule 4.420(b).) Here, although defense counsel argued fo r imposition of the lower term, he never objected to the probation report or the cour t’s reliance upon defendant’s prior conviction for the recommended aggravated term as a vi olation of the proscr iption against dual use of a factor included as an element of th e substantive offense for which defendant had been convicted. Likewise, after the court pronounced sentence, it asked if there was “[a]nything else for the reco rd?” Defense counsel replied “No, sir.” Thus, defense counsel had ample opportunity to object to th e court’s ostensible failure to state its reasons for imposing the upper term or its re liance upon defendant’s prior conviction for10 imposing that sentence. Therefore, defe ndant forfeited the sent encing contentions on appeal. 2. Ineffective Assi stance of Counsel. “‘The law governing defendant’s claim is settled. “A crim inal defendant is guaranteed the right to the assistance of counsel by bo th 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 perform ance was “deficient” because his “representation fell below an obj ective 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 the11 instant offenses, and his eligib ility 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 mu ltiple victims. There [was] more than one victim in this event, and that is a circumst ance 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 aggravati ng 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 defe nse 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 uppe r 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 sufficien t 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 criteri a reasonably related to the de cision being made. Any such additional criteria must be stated on the record by the sent encing judge”].) Second, defendant’s prior co nviction was not an element of any of the substantive crimes for which defendant was convicted. (Cal. Rules of C ourt, rule 4.420(b) [“A fact that is an element of the crime upon which punishment is be ing imposed may not be used12 to impose a greater te rm”; 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].) Th us, consideration of defendant’s prior DUI convic tion when imposing the upper term did not violate the proscription against dual use of fact ors relating to the convictions. Third, the court noted defendant ha s sustained additional convictions and sustained allegations other than the prior DUI conviction. Allegations in several juvenile wardship petitions against defendant had be en sustained for misdemeanor possession of tear gas, misdemeanor petty theft, misd emeanor vandalism, and misdemeanor possession of vandalism tools. Defendant had a prior adult conviction fo r vandalism. Defendant had twice previously had his probation revoked. Fourth, defendant wa s on a probation when he committed the in stant offense. Fifth and finally, defendant showed no re morse. As the probation report reflected, although defendant admitted committing the instant offense, “defendant expressed dismay at his personal distress, and the possibl e length of his incarceration; however, at no point did he express any remorse for th e death of a young woman, the physical injuries incurred by her passenger, or the grie f 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 afte r all. The defendant’ s complete lack of remorse during the probation interview is of extreme concern.” At the sentencing hearing, defendant’s sole stat ement consisted of the following: “I just want to ask all families to forgive me , just forgive me for everything that happened. I just want to13 apologize, and that will be it.” Thus, the court stated legally permissible bases for imposing the upper term, none of which viol ated the proscription against dual use of factors relating to the convicti on. 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 respect s, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS CODRINGTON J.
We concur:

HOLLENHORST Acting P. J.

RICHLI J.