Filed: 1/21/15 P. v. Perkins CA2/7
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


THE PEOPLE,                                                          B251385

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. NA095315)
         v.

SHAWN PERKINS,

         Defendant and Appellant.




         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. Michael Lehmann, Deputy Attorneys General, for
Plaintiff and Respondent.
                                           ______________________
       Following his conviction for 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. Perkins’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 PROCEDURAL BACKGROUND
       1. The Aggravated Assault
       Amiracle Johnson was visiting family members in Long Beach the weekend of
March 15-17, 2013. On Friday night Johnson and one of his cousins encountered Perkins
and several other people on the sidewalk. Johnson, who had seen Perkins earlier that day,
asked, “Can I hit a cigarette?” After Perkins passed the cigarette to Johnson, someone
commented, “Oh, he’s probably got AIDS.” Johnson took offense and challenged
Perkins’s group to fight. Angry words were exchanged. Perkins pulled out a revolver
and shot Johnson four times from a distance 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 Perkins 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 verdict 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.
                                             2
strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and section 667,
subdivision (a), and had served three separate 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 four years for assault with a firearm doubled
under the three strikes law, plus the upper term of 10 years for personal use of a firearm
in the commission of the felony, plus three years for personal 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. Aggravating 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 even though the strike prior[] is
from 2008, since the strike prior defendant suffered multiple convictions 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 Number 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, forgery, 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 him, 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 aggravating factors.”
       Perkins’s counsel neither objected to the trial court’s statement of reasons for its
sentencing choices nor argued the court had impermissibly used an element of the

                                              3
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 the dual use of sentencing factors
       When a determinate sentencing statute 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 court 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 obtained from the record in the case, the
probation report, statements from the victim of the crime and evidence introduced at the
sentencing hearing. (§ 1170, subd. (b); rule 4.420(b).) When imposing a sentence
enhancement punishable by one of three terms, the court is also authorized, in its
discretion, to “impose the term that best serves the interest of justice.” (§ 1170.1,
subd. (d).)
       The existence of a single aggravating circumstance is legally sufficient to make
the defendant eligible for imposition 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.) Moreover, the use of the same fact or
facts to aggravate both a base term and the sentence 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 discretion in crafting a sentence, generally
reviewable only for abuse, “the court may not impose an upper term by using the fact of
any enhancement upon which sentence is imposed under any provision of the law.”
2
       Citations to rule or rules are to the California Rules of Court.
                                               4
(§ 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 facts to impose an upper term or an enhancement is
improper, “‘complaints 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.’” (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 failure 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 reasons or to give a sufficient number of valid
reasons.’” (Boyce, at p. 731.)
              b. Ineffective assistance of counsel
       To establish ineffective assistance of counsel under either the federal or state
constitutional guarantee, a defendant must show ““‘that counsel’s representation fell
below an objective standard of reasonableness under prevailing professional norms, and
that counsel’s deficient performance was prejudicial, 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 representation 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 assistance of counsel, it is not necessary to
determine “‘whether counsel’s performance was deficient before examining the prejudice

                                              5
suffered by the defendant as a result of the alleged deficiencies. . . . If it is easier to
dispose of an ineffectiveness claim on the ground 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.App.4th 1000, 1008.)
It is not sufficient to show the alleged errors may have had some conceivable effect on
the trial’s outcome; the defendant must demonstrate a “reasonable probability” that
absent the errors the result would 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 any direct challenge to the trial court’s
purported dual use of facts in selecting the upper terms for aggravated assault and
personal use of a firearm during the commission of a felony, Perkins contends counsel’s
failure to object to those sentencing decisions constituted ineffective assistance. Even if
his counsel’s performance at the sentencing hearing was deficient, Perkins’s claim fails
because he has not demonstrated 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 properly support imposition of an upper term
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sentence. However, as discussed, in exercising its sentencing discretion the trial court
focused on the fact Perkins had shot Johnson multiple times at very close range—
properly considered an aggravating factor under rule 4.421(a)(1) (“[t]he crime involved
great violence . . . or other acts disclosing a high degree of cruelty, 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), expressly provides the
additional term provided by section 12022.5, subdivision (a)—the firearm-use
enhancement imposed in this case—“shall be imposed for any violation of Section 245 if
a firearm is used . . . .”
                                                6
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 convictions in three prior felony cases, standing alone, do not
support an upper term sentence 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 delinquency 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 section 667.5, subdivision (b), for his most
recent convictions in 2011, that case actually involved three separate 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 “Johnson 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 support the trial court’s
characterization. Finally, Perkins concedes the court properly took into consideration the
fact he was on probation for a domestic violence 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 aggravation, the trial court emphasized the
absence of any mitigating factors. Indeed, when explaining its sentencing decision, the
court stated three times that there were no factors in mitigation. Nothing in this record
suggests, let alone demonstrates a reasonable probability, the trial court would have

                                              7
imposed a more favorable (shorter) sentence had Perkins’s counsel pointed out the
limited manner in which the dual use prohibition may have applied in this case. Simply
put, Perkins has not shown any deficient performance by his counsel resulted in
prejudice. Error, if there was one, was harmless 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.




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