Filed 6/28/16 P. v. Webb CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                        (Placer)
                                                            ----




THE PEOPLE,                                                                                  C079892

                   Plaintiff and Respondent,                                     (Super. Ct. No. 62133775)

         v.

TANNER NICOLAS WEBB,

                   Defendant and Appellant.




         Defendant Tanner Nicolas Webb pled guilty to various charges related to driving
while under the influence of alcohol with prior violations. Defendant contends the trial
court erred in imposing the upper term because it considered improper aggravating
factors and disregarded mitigating factors. He also contends he received ineffective
assistance of counsel when his attorney failed to object to the trial court’s imposition of
the upper term. We affirm.




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                   FACTUAL AND PROCEDURAL BACKGROUND
       In September 2014, police stopped defendant for various violations, including
expired registration, stopping beyond the limit line, and failure to use a turn signal.
Defendant was also driving under the influence of alcohol, with a blood-alcohol level of
0.18 percent. Defendant had only in August 2014 completed his postrelease community
supervision for a prior 2012 conviction for driving under the influence of alcohol and
causing bodily injury to another person.
       In March 2015, defendant pled guilty to driving under the influence (DUI) of
alcohol with a prior DUI felony, driving while having a blood-alcohol level of 0.08
percent or higher with a prior DUI felony, and driving when his privileges were
suspended for a prior DUI conviction. With respect to the first two charges, defendant
admitted a prior DUI felony within the last 10 years, a prior prison term, and having a
blood-alcohol content of 0.15 percent or higher. Defendant also admitted three prior DUI
convictions.
       The trial court sentenced defendant to an aggregate term of four years’
imprisonment. The trial court imposed the upper term on the charge of driving under the
influence with a prior DUI felony because it found no mitigating factors and because
defendant had served a prior prison term and his prior record reflected numerous
misdemeanor convictions increasing in frequency and seriousness. In addition, this was
defendant’s fourth DUI conviction since 2005, committed just one month after he
completed postrelease supervision. The court commented, “[t]he safety of this
community is thus required by this Court.” Defendant appeals.
                                       DISCUSSION
                                              I
                Use Of The Prior Prison Term As An Aggravating Factor
       Defendant contends the trial court erred in imposing the upper term. According to
defendant, it was error to consider his prior prison term as an aggravating factor, since

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this factor was already taken into account in the Penal Code section 667.5 enhancement.
Defendant also contends the trial court erroneously disregarded the mitigating factor of
appellant’s guilty plea and voluntary acknowledgement of his wrongdoing. (Cal. Rules
of Court,1 rule 4.423(b)(3).) The People disagree, contending defendant forfeited this
argument by failing to object during the sentencing hearing. Given our determination the
trial court did not abuse its discretion in imposing the upper term, we need not reach the
forfeiture argument.
       A trial court’s decision to impose the upper term is subject to review for abuse of
discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847.) A trial court abuses its
discretion only if it “relies upon circumstances that are not relevant to the decision or that
otherwise constitute an improper basis for decision.” (Ibid.) An upper term sentence
may be based upon “any aggravating circumstance that the court deems significant” or
any other circumstance, even if it is not enumerated in rule 4.421, so long as it is
“ ‘reasonably related to the decision being made.’ ” (Sandoval, at pp. 847, 848, quoting
rule 4.408(a).) “ ‘The burden is on the party attacking the sentence to clearly show that
the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a
showing, the trial court is presumed to have acted to achieve legitimate sentencing
objectives, and its discretionary determination to impose a particular sentence will not be
set aside on review.’ ” (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-
978; accord, People v. Lai (2006) 138 Cal.App.4th 1227, 1258-1259.)
       To the extent the trial court considered defendant’s prior prison term as an
aggravating factor, we agree with defendant this was improper. Pursuant to Penal Code
section 1170, subdivision (b), a “court may not impose an upper term by using the fact of
any enhancement upon which sentence is imposed under any provision of law.” (See




1      Undesignated rule references are to the California Rules of Court.

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also 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”].) However, reversal is not required, since a “single
aggravating circumstance is legally sufficient to make the defendant eligible for the upper
term,” and here there were many. (People v. Black (2007) 41 Cal.4th 799, 813.) Despite
defendant’s contentions, his prior record consisted of numerous misdemeanor convictions
increasing in frequency and seriousness, including multiple DUI convictions. Indeed, the
DUI at issue here occurred only one month after he completed postsupervision release for
his previous DUI. In these circumstances, the safety of the community is reasonably
related to the court’s sentencing decision and is a sufficient aggravating circumstance in
support of imposition of the upper term. (Rule 4.408(a).)
       In addition, we find no error in the trial court’s conclusion there were no
mitigating factors because defendant pled guilty in March 2015, more than five months
after the incident. Even if, as defendant contends, his admission of guilt should have
been a mitigating factor, the “trial court may ‘minimize or even entirely disregard
mitigating factors without stating its reasons.’ ” (People v. Lai, supra, 138 Cal.App.4th
at p. 1258.)
                                             II
                             Ineffective Assistance Of Counsel
       Defendant contends he received ineffective assistance of counsel because his
lawyer failed to object during the sentencing hearing to the trial court’s consideration of
his prior prison term as an aggravating circumstance and to the trial court’s failure to
consider as a mitigating circumstance his admission of guilt.
       To establish ineffective assistance of counsel, a defendant must show counsel’s
performance was “deficient, in that it fell below an objective standard of reasonableness
under prevailing professional norms.” (People v. Mai (2013) 57 Cal.4th 986, 1009.)
Defendant must also show “resulting prejudice, i.e., a reasonable probability that, but for

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counsel’s deficient performance, the outcome of the proceeding would have been
different.” (Ibid.)
       Since we have concluded the imposition of the upper term was proper, even if
defense counsel had objected, it is not reasonably likely defendant would have received a
more favorable sentence given the presence of additional aggravating factors, including
the potential danger to the community and the increasing frequency and seriousness of
defendant’s convictions. (Rules 4.408(a), 4.421(b)(2).) We reject defendant’s claim.
                                     DISPOSITION
       The judgment is affirmed.



                                                /s/
                                                Robie, J.



We concur:



/s/
Hull, Acting P. J.



/s/
Butz, J.




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