Filed: 1/21/15 P. v. Perkins CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,
Plaintiff and Respondent,

v.
SHAWN PERKINS,
Defendant and Appellant. B251385
(Los Angeles County Super. Ct. No. NA095315)

APPEAL from a judgment of the Superior Court of Los Angeles County, Mark C. Kim, Judge. Affirmed. David R. Greifinger, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Lance E. Winters, Senior Assistant Attorney General, Steven D. Matthews and J. Michae l Lehmann, Deputy A ttorneys General, for Plaintiff and Respondent.

__________ ____________2 Following his conviction fo r assault with a firearm with enhancements for inflicting great bodily injury, firearm use and prior felony convictions, Shawn Perkins was sentenced to 29 years in state prison. Pe rkins’s sole contention on appeal is that his trial counsel provided ineffective assistance at the sentencing hearing because he failed to object to the court’s impermissible dual use of certain factors to impose the upper term for aggravated assault and for the related firearm-use enhancement. We affirm.
FACTUAL AND PROCED URAL BACKGROUND
1. The Aggravated Assault Amiracle Johnson was visiting family me mbers in Long Beach the weekend of March 15-17, 2013. On Friday night Johnso n and one of his cousins encountered Perkins and several other people on the sidewalk. Johns on, who had seen Perkins earlier that day, asked, “Can I hit a cigarette?” After Perk ins passed the cigarette to Johnson, someone commented, “Oh, he’s probably got AIDS .” Johnson took o ffense and challenged Perkins’s group to fight. Angry words were exchanged. Perkins pulled out a revolver
and shot Johnson four times from a di stance of six or seven feet. One of the bullets penetrated Johnson’s chest and struck a lung. He was also hit in the right bicep and back. Johnson spent a week in the hospital, including three days in the intensive care unit, and underwent two surgeries.
2. Verdict and Sentence The jury convicted Perkin s of assault with a firearm (Pen. Code, § 245, subd. (a)(2)) 1 and found true the special allegations he had personally used a firearm (§ 12022.5, subd. (a)) and had personally inflicted great bodily injury when committing the offense (§ 12022.7 , subd. (a)). Perkins admitted in a bifurcated proceeding he had suffered one prior serious or violent felony conviction within the meaning of the three

1 The jury was unable to reach a verdic t on the charge of attempted willful, deliberate and premeditated murder (Pen. Code , §§ 187, 664), and the court declared a mistrial as to that count. Statutory references are to the Penal Code.3 strikes law (§§ 667, subds. (b)-(i), 1170 .12, subds. (a)-(d)) and section 667, subdivision (a), and had served three separa te prison terms for felonies (§ 667.5, subd. (b)).
The trial court denied Perkins’s motion to dismiss his prior strike conviction (§ 1385; People v. Superior Court (Romero) (1996) 13 Cal.4th 497) and sentenced him to state prison for 29 years: the upper term of f our years for assault with a firearm doubled under the three strikes law, plus the upper te rm of 10 years for personal use of a firearm in the commission of the felony , plus three years for persona l infliction of great bodily injury, plus five years for the prior serious felony conviction and three additional years for the separate prior prison terms. The trial court explained its sentencing decisions: “The mitigating factors are none. There are no mitigating factors. Aggrav ating factors are the victim was especially vulnerable, he was standing on the street when he was shot at multiple times. “Also, Romero motion is denied as well because ev en though the strike prior[] is from 2008, since the strike prior defendant suffered multiple conv ictions including two additional felony convictions resulting in state prison commitment in 2008 for the underl[y]ing strike case, as well as in 2010 , for violation of Health and Safety Code section 11350(A), in Case Numb er NA084432. And then after he was released on parole he went back to prison again, year later, August 11, 2011, in Case Number NA089638, for violation of second degree burglary, forger y, and so forth. In addition, while this alleged incident took place, the defendant was on probation for domestic violence in Case
Number 3LG00417. “The crime was especially heinous in that he fired multiple rounds at a victim who was standing four to five feet away from hi m, which resulted in the named victim getting shot multiple times and actually getting hit. So I don’t find that there are any mitigating factors; the[re] are ag gravating factors.” Perkins’s counsel neither obj ected to the trial court’s statement of reasons for its sentencing choices nor argued the court had impermissibly used an element of the4 charged offense or the facts supporting the enhancements to impose the upper term for
assault with a firearm.
DISCUSSION
1. Governing Law

a. Sentencing to the upper term and th e dual use of sentencing factors When a determinate sentencing statut e authorizes three possible terms of imprisonment, “the choice of the appropriate term shall rest within the sound discretion of the court.” (§ 1170, subd. (b).) “The cour t shall select the term which, in the court’s discretion, best serves the interests of justice.” ( Ibid .) In exercising that discretion, the sentencing court “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).) 2 The relevant circumstances may be obta ined from the record in the case, the probation report, statements fro m the victim of the crime and evidence introd uced at the sentencing hearing. (§ 1170, subd. (b); rule 4.420(b).) When imposing a sentence enhancement punishable by one of three term s, the court is also authorized, in its discretion, to “impose the term that best se rves the interest of justice.” (§ 1170.1, subd. (d).) The existence of a single aggravating circ umstance is legally sufficient to make the defendant eligible for im position of the upper term. ( People v. Black (2007) 41 Cal.4th 799, 816; People v. Osband (1996) 13 Cal.4th 622, 728; see People v. Quintanilla (2009) 170 Cal.App.4th 406, 413.) Mo reover, the use of the same fact or facts to aggravate both a base term and the se ntence on an enhancement is permissible. ( People v. Chism (2014) 58 Cal.4th 1266, 1336; People v. Moberly (2009) 176 Cal.App.4th 1191, 1198.) Notwithstanding the trial court’s broad disc retion in crafting a sentence, generally reviewable only for abuse, “the court may not impose an uppe r term by using the fact of any enhancement upon which sentence is im posed under any provis ion of the law.”

2 Citations to rule or rules are to the California Rules of Court.5 (§ 1170, subd. (b); see rule 4.420(c) [“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 ”].) Similarly, a fact that is an element of the offense may not be used as a reason to impose the upper term. (Rule 4.420(d).) Although such dual use of fa cts to impose an upper term or an enhancement is improper, “‘complaints about the manner in wh ich the trial court exercises its sentencing discretion and articulates its supporting reas ons cannot be raised for the first time on appeal.’” ( People v. Boyce (2014) 59 Cal.4th 672, 730, quoting People v. Scott (1994) 9 Cal.4th 331, 356; accord, People v. McCullough (2013) 56 Cal.4th 589, 594-595.) “‘[C]laims involving the trial court’s fa ilure to properly make or articulate its discretionary sentencing choices’ are subject to forfeiture, including ‘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 reas ons or to give a sufficient number of valid reasons.’” ( Boyce , at p. 731.)
b. Ineffective assistance of counsel
To establish ineffective assi stance of counsel under either the federal or state constitutional guarantee, a defendant must s how ““‘that counsel’s representation fell below an objective standard of reasonabl eness under prevailing professional norms, and that counsel’s deficient performance was prej udicial, i.e., that a reasonable probability exists that, but for counsel’s failings, the result would have been more favorable to the defendant.””’ ( In re Crew (2011) 52 Cal.4th 126, 150; see Strickland v. Washington (1984) 466 U.S. 668, 694 [104 S.Ct. 2052, 80 L.Ed.2d 674].) “‘The burden of sustaining a charge of inadequate or ineffective repres entation is upon the defendant. The proof . . . must be a demonstrable reality and not a speculative matter.’” ( People v. Karis (1988) 46 Cal.3d 612, 656.) In considering a claim of ineffective assist ance of counsel, it is not necessary to determine “‘whether counsel’s performance wa s deficient before examining the prejudice6 suffered by the defendant as a result of the a lleged deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the gro und of lack of sufficient prejudice, which we expect will often be so, that course should be followed.’” ( In re Champion (2014) 58 Cal.4th 965, 1007, quoting Strickland v. Washington, supra, 466 U.S. at p. 697; In re Alvernaz (1992) 2 Cal.4th 924, 945; People v. Mesa (2006) 144 Cal.Ap p.4th 1000, 1008.) It is not sufficient to show the alleged erro rs may have had some conceivable effect on the trial’s outcome; the defendant must demonstrate a “reasonable probability” that
absent the errors the result wo uld have been different. ( Champion , at p. 1007; Mesa , at p. 1008.)
2. Perkins Has Failed To Show He Suffered Any Prejudice Recognizing his counsel’s silence forfeited an y direct challenge to the trial court’s purported dual use of facts in selecting the upper terms for ag gravated assault and personal use of a firearm durin g the commission of a felony, Perkins contends counsel’s failure to object to those sentencing decisions constituted ineffective a ssistance. Even if his counsel’s performance at the sentencing hearing was deficient, Perkins’s claim fails
because he has not demonstr ated a reasonable probability he would have received a shorter prison term had an objection been made. Because the trial court imposed both a great bodily injury enhancement and a firearm-use enhancement, Perkins is correct the fact Johnson was injured when Perkins shot him, without more, could not proper ly support imposition of an upper term

sentence. 3 However, as discussed, in exercising its sentencing discretion the trial court
focused on the fact Perkins had shot Johnson multiple ti mes at very close range— properly considered an aggravating factor und er rule 4.421(a)(1) (“ [t]he crime involved great violence . . . or other acts disclosing a high degree of crue lty, viciousness, or

3 Although use of a firearm is obviously an element of the crime of assault with a firearm (§ 245, subd. (b)), section 12022. 5, subdivision (d), e xpressly provides the additional term provided by section 12 022.5, subdivision (a)—the firearm-use enhancement imposed in this case—“shall be imposed for any violation of S ection 245 if a firearm is used . . . .”7 callousness”) and rule 4.421(b)(1 ) (“[t]he defendant has engaged in violent conduct that indicates a serious danger to society”). Similarly, Perkins’s convictio ns in three prior felony cases, standing alone, do not support an upper term se ntence because the court imposed additional one-year enhancements for the separate prison terms he had served. But under rule 4.421(b)(2) the court may use as an aggravating factor the fact “[t]he defendant’s prior convictions as an adult or sustained petitions in juvenile de linquency proceedings are numerous or of increasing seriousness.” That is, the court is authorized to consider the nature of the crimes involved, as well as their number. As the court explained, although he served only one prison term within the meaning of s ection 667.5, subdivision (b), for his most recent convictions in 2011, that case actually involved three se parate felonies. Viewed in the aggregate, Perkins’s criminal history was an appropriate factor in aggravation, as well as a proper basis to deny his Romero motion.
The trial court’s assessment Johnson “was particularly vulnerable” (see rule 4.421(a)(3)) is not challenged by Perkins on appeal as involving the dual use of a sentencing factor but on the ground “Johns on cannot be distinguished from countless other shooting victims.” However, the evidence at trial established Johnson was unarmed and shot at night and at close range. Those facts are sufficient to su pport the trial court’s characterization. Finally, Perkins concedes the court properly took into consideration the fact he was on probation for a domestic vi olence offense when the current incident occurred. (Rule 4.421(b)(4) [“[t]he defendant was on probation or parole when the crime was committed”].) That single factor alone, as acknowledged by Perkins, is legally sufficient to support the 29-year sentence imposed here. (See People v. Chism, supra, 58 Cal.4th at p. 1336; People v. Osband, supra, 13 Cal.4th at p. 728.) In evaluating all these circumstances in a ggravation, the trial court emphasized the absence of any mitigating factors. Indeed, when explaining its se ntencing decision, the
court stated three times that there were no fact ors in mitigation. No thing in this record suggests, let alone demonstrates a reasona ble probability, the trial court would have8 imposed a more favorable (shorter) sentence had Perkins’s counsel pointed out the
limited manner in which the dual use prohibition may have app lied in this case. Simply put, Perkins has not shown any deficient performance by his counsel resulted in prejudice. Error, if there was one, was harm less because “[i]t is not reasonably probable
that a more favorable sentence would have been imposed in the absence of the error.” ( People v. Avalos (1984) 37 Cal.3d 216, 233; see People v. Osband, supra , 13 Cal.4th at pp. 728-729.)
DISPOSITION The judgment is affirmed.

PERLUSS, P. J.

We concur:

WOODS, J.

ZELON, J.