Filed 4/26/13 P. v. Johnson CA2/8
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT


THE PEOPLE,                                                          B241562

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. NA090680)
         v.

MAURICE JOHNSON,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County,
Arthur H. Jean, Jr., Judge. Affirmed.


         Gerald Peters, under appointment by the Court of Appeal, for Defendant and
Appellant.


         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Lawrence M. Daniels and
Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.


                                          _______________________
       Defendant Maurice Johnson appeals from his convictions of attempted murder,
shooting at an occupied motor vehicle, assault with a firearm and possession of a firearm
by a felon. He contends: (1) imposition of a Penal Code section 667.5 enhancement on
two counts was error; (2) the trial court failed to state valid reasons for selecting the
upper term; and (3) trial counsel was ineffective in failing to object to these two
sentencing errors.1 We affirm.

                  FACTUAL AND PROCEDURAL BACKGROUND

       Because defendant does not challenge the sufficiency of the evidence, a detailed
statement of facts is not necessary. It is sufficient to state that in the early morning hours
of October 31, 2011, Douglas Price sustained two gunshot wounds when defendant fired
multiple rounds from a .22-caliber rifle at Price, while Price was sitting in his car.
       Defendant was charged in a Third Amended Information with attempted murder
(count 1); shooting at an occupied vehicle (count 2); assault with a firearm (count 3); and
possession of a firearm by a felon (count 4).2 As to all counts, three section 667.5 prior
prison terms were alleged. As to counts 1 and 2, section 12022.53, subdivisions (b), (c)
and (d) gun use enhancements were also alleged. As to counts 1 and 3, section 12022.7
great bodily injury enhancements were alleged. Defendant pled guilty to count 4 and
admitted the prior conviction allegations. The jury found defendant guilty of counts 1, 2
and 3 and found true the gun use and great bodily injury enhancements as to each of
those counts. Defendant was sentenced to a total of 37 years to life in prison comprised
of:




1      All future undesignated statutory citations are to the Penal Code.

2      Defendant was also charged with a second assault with a firearm count (count 6)
and possession of ammunition by a felon (count 5). The trial court granted defendant‟s
section 1118.1 motion as to count 6 and the People‟s motion to dismiss count 5 in the
interests of justice.

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              Count 1 (attempted murder)
              Thirty-seven years to life (the upper term of 9 years, plus 1 year for each of
              three section 667.5 prior prison terms, plus 25 years to life for the
              section 12022.53, subdivision (d) gun use enhancement); the
              section 12022.7 great bodily injury enhancement was stayed pursuant to
              section 654.
              Count 4 (felon in possession of a firearm)
              The upper term of 3 years to run concurrently.
              Count 2 (shooting at an occupied motor vehicle)
              Thirty-two years to life (the upper term of 7 years, plus 25 years to life for
              the section 12022.53, subdivision (d) gun use) stayed pursuant to
              section 654.
              Count 3 (assault with a firearm)
              Fourteen years (the upper term of 4 years, plus 10 years for the section
              12022.5 gun use) stayed pursuant to section 654.
       Defendant timely appealed.

                                      DISCUSSION

A.     Imposition of the Section 667.5 Enhancement Was Not Error

       Defendant contends the trial court erred in imposing a section 667.5 prior prison
enhancement on both counts one and four. The People counter that the record shows the
trial court imposed three section 667.5 enhancements only on count 1, the attempted
murder charge. Neither side is quite right. The court correctly imposed three, one-year
prior prison term enhancements as part of its sentence, but those terms were not tied to
any particular count. The parties agree that that defendant had served three separate prior
prison terms without a wash-out period, thus qualifying for an enhancement for each
prior prison term under section 667.5. Prior prison term enhancements are not imposed
on a particular count; instead, where they are applicable, the enhancements are imposed


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as part of the overall sentence. Our Supreme Court has held that so-called status
enhancements – those that are based on defendant‟s prior record, for example – are
distinguished from crime specific enhancements such as when a defendant has caused
great bodily injury or used a firearm. (People v. Tassell (1984) 36 Cal.3d 77, 90,
overruled on another ground by People v. Ewoldt (1994) 7 Cal.4th 380, 387; People v.
Byrd (2001) 89 Cal.App.4th 1373, 1380.) Status enhancements are imposed once per
case, irrespective of the number of counts of which a defendant has been convicted. As
Tassell summarized: “[E]nhancements for prior convictions do not attach to particular
counts but instead are added just once as the final step in computing the total sentence.”
(Tassell, at p. 90.) The record shows the trial court did exactly that by imposing a one-
year enhancement for each of the three prior prison terms, for a total of an additional
three years. There was no error.

B.      Defendant Forfeited His Challenge to the Trial Court’s Statement of Reasons

        Defendant contends the trial court failed to state valid reasons for imposing the
upper term on all counts. He argues that imposition of the high term cannot be based on
the decision to select concurrent rather than consecutive sentences on other counts. We
conclude that defendant‟s failure to timely object constitutes a forfeiture of the claim.
Even if there was no forfeiture, the trial court correctly applied California sentencing
laws.
        Where a statute specifies three potential terms of imprisonment, the trial court
must select one of the specified terms. (§ 1170, subd. (a)(3).) The choice rests within the
trial court‟s sound discretion and it must select the term which, exercising discretion, it
believes best serves the interest of justice. (§ 1170, subd. (b).) It must state its reasons
for the selection on the record. (Ibid.; see also Cal. Rules of Court, rule 4.420(e).) In
making its selection, the trial court “may consider circumstances in aggravation or
mitigation, and any other factor reasonably related to the sentencing decision.”
(Rule 4.420(b).) One of the circumstances in aggravation that the court may consider is
that “[t]he defendant was convicted of other crimes for which consecutive sentences

                                              4
could have been imposed but for which concurrent sentences are being imposed.”
(Rule 4.421(a)(7).)
       Here, the trial court explained its selection of the high term on count one as
follows: “The court chooses the high base term of nine years. And I do that because I
intend to, in count four, to run a concurrent sentence, not any other time for the ex-con
with a gun. That was a separately punishable offense, but I am not going to add any more
time. I choose the high base term of nine years.” The trial court did not give any
additional explanation for its selection of the three-year high term on count 4, which it
ordered to run concurrently to count 1, or on counts 2 and 3 which it stayed pursuant to
section 654. Asked whether he had any thoughts on sentencing, defense counsel stated,
“I will file a notice of appeal.”
       By not objecting to the trial court‟s stated reasons for selecting the high term,
defendant forfeited his claim that those reasons were improper. (People v. Velasquez
(2007) 152 Cal.App.4th 1503, 1511-1512.) Even if the claim was not forfeited, we
would find no error since the trial court‟s reason is among those listed in California Rules
of Court, rule 4.421(a).

C.     Defendant Has Not Established Ineffective Assistance of Counsel

       Defendant contends he received ineffective assistance of counsel as a result of his
trial counsel‟s failure to object to the trial court‟s imposition of the section 667.5 prior
prison term enhancements and statement of reasons for the selection of the high term on
all counts. We conclude there was no ineffective assistance.
       “A cognizable claim of ineffective assistance of counsel requires a showing
„counsel made errors so serious that counsel was not functioning as the “counsel”
guaranteed . . . by the Sixth Amendment.‟ . . . „[T]he performance inquiry must be
whether counsel‟s assistance was reasonable considering all the circumstances.‟ ”
(People v. Jones (2009) 178 Cal.App.4th 853, 859-860, citations omitted.) The failure to
make a meritless objection does not constitute ineffective assistance of counsel. (People



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v. Cunningham (2001) 25 Cal.4th 926, 1038 [failure to object to claimed prosecutorial
misconduct is not ineffective assistance of counsel when there was no misconduct].)
       Here, since we have found the trial court‟s imposition of the three one-year
section 667.5 prior prison term enhancements and the court‟s reason for selecting the
high term were legally correct, defendant has failed to establish trial counsel was
ineffective for failing to make a meritless objection to those sentencing choices.

                                     DISPOSITION

       The judgment is affirmed.




                                                        RUBIN, J.
WE CONCUR:




              BIGELOW, P. J.




              GRIMES, J.




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