Filed 3/29/13 P. v Butler 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                         (Yuba)
                                                            ----



THE PEOPLE,                                                                                  C068341

                   Plaintiff and Respondent,                                     (Super. Ct. No. CRF06110)

         v.

AMY MARIE BUTLER,

                   Defendant and Appellant.




         Two people lost their lives as a result of a plan to steal marijuana originally
hatched by defendant Amy Marie Butler. Defendant was given a break for her
cooperation and then violated her probation by possessing a loaded firearm. Defendant
now appeals the state prison sentence imposed by the trial court after revocation of her
probation. The court imposed a term of 12 years for robbery of an inhabited dwelling in
concert with two or more persons (Pen. Code, §§ 211, 213, subd. (a)(1)(A);1 hereafter




1   Undesignated statutory references are to the Penal Code.

                                                             1
robbery), principal armed with a firearm (§ 12022, subd. (a)(1)), and conspiracy to
commit robbery (§ 182; hereafter conspiracy).
       Defendant contends the trial court abused its discretion in imposing the upper
term of nine years for the robbery, asserting that the court relied upon only one
aggravating factor -- that she took advantage of a position of trust -- and that factor
does not outweigh factors in mitigation. She also contends the court abused its
discretion in imposing a consecutive term of two years for conspiracy because it
failed to cite any factor supporting imposition of a consecutive sentence, and that if
we find the trial court did state a reason, which could only be that she took advantage
of a position of trust, this was an impermissible dual use of facts. Finally, she contends
if we find her trial counsel‟s failure to object to the trial court‟s imposition of a
consecutive term for conspiracy was error, she received ineffective assistance of counsel.
       We reject defendant‟s contentions and affirm the judgment.
                  FACTUAL AND PROCEDURAL BACKGROUND
                                     Procedural History
       On June 2, 2006, defendant pleaded no contest to robbery and conspiracy,
admitted a principal armed with firearm allegation, and agreed to testify against her
coconspirators. In exchange for defendant‟s pleas, admission and truthful testimony,
the parties agreed that the two counts of murder would be dismissed, defendant would
initially receive probation and she would be exposed to a maximum sentence of no
more than 12 years.
       On May 20, 2009, following defendant‟s testimony against two of her
coconspirators, the court suspended imposition of sentence and granted her probation
for five years. Among the probation conditions were requirements that she obey all
laws and not possess any firearms or ammunition. The court dismissed the two counts
of murder.



                                               2
       On January 20, 2011, defendant was charged with violating her probation by
failing to obey all laws and possessing a firearm and ammunition. On February 22, 2011,
defendant admitted violating the condition that she obey all laws and the prosecution
moved to strike the duplicative possession allegations.
       On May 2, 2011, the court sentenced defendant to 12 years in prison, consisting of
the upper term of nine years for the robbery, one year for the firearm enhancement, and a
consecutive term of two years for the conspiracy.2
                        Facts Underlying the Charged Offenses
       In early September 2005, defendant was with Angelic Rampone, Michael
Huggins, Matthew Griffin, Dustin Sparks, and Levill Hill. At some point during their
conversation, Huggins said he wanted to buy some marijuana and resell it to make
money. Defendant told the group that two of her friends from high school, Christopher
Hance and Scott Davis, were growing a large quantity of marijuana for medicinal
purposes at Hance‟s residence in Olivehurst. Aside from defendant, only her boyfriend,
Matthew Griffin, knew Hance and Davis. Defendant told Huggins he could buy the
marijuana from Hance and Davis, but at some point suggested that she could get Hance
and Davis out of the house so the group could steal the marijuana. Defendant was to
share in an even split of the money made from selling the marijuana.
       On September 13, 2005, defendant led some of the others to Hance‟s residence
to steal the marijuana. The plan was for defendant to get Hance and Davis out of the
residence on the ruse that they were arranging for the purchase of $700 worth of
marijuana. However, the plan fell through when defendant was only able to get Davis
to leave.




2 As part of defendant‟s plea bargain she agreed to waive the section 654 prohibition
against multiple punishment.

                                            3
       About a week later, the plan to steal marijuana was again discussed. This time the
plan was to tie up Hance and Davis and then steal the marijuana. Defendant said she did
not want to have anything to do with the plan anymore and would not participate.
However, defendant told the others that Hance and Davis were “good fighters” and that
they had firearms in the trailer on the property where Davis stayed.
       Early in the morning of September 27, 2005, Rampone, Huggins, Griffin, Sparks,
and Hill drove to Hance‟s residence. Huggins was armed with a .45-caliber handgun,
supposedly to be used to subdue and tie up Hance and Davis. After walking around the
property, Hill and Griffen changed their minds and returned to their vehicle. Huggins
entered the front yard and headed toward the trailer in the backyard while Sparks stayed
at the front yard gate. Huggins called out, “Yuba County Sheriffs” and “I want Scott
Davis” and walked toward the trailer.
       Initially thinking law enforcement was there, Hance‟s father, Michael, retrieved
his medical marijuana recommendation. In the meantime, Huggins shot the family dog
and went to the trailer, where he struggled with Davis, who was unarmed. Huggins shot
Davis during the struggle. Davis collapsed and died on the scene. As Huggins and
Hance fought, Michael came out of the house and retrieved a gun from the trailer.
Huggins shot Hance in the pelvis and Hance fell to the ground. Michael pointed the
shotgun at Huggins but lowered it when Huggins again yelled, “Yuba County Sheriff‟s
Department.” Hance shouted, “Dad, he‟s not a cop, he‟s not a cop.” Michael asked for
identification. Huggins ran from the scene, joined the rest of his group and they drove
off. Hance was transported to a hospital where he died from his gunshot wound.
                                 The Initial Sentencing
       On May 20, 2009, finding that defendant had fulfilled her end of the bargain up
to that point, the court imposed the agreed-upon sentence and placed defendant on five
years‟ formal probation. The court made clear to defendant that possession of firearms
or ammunition would be a violation of her probation and the basis for a new charge.

                                             4
Defendant signed the probation order containing the conditions that she obey all laws and
not possess firearms or ammunition.
                       Facts Underlying the Probation Violation
       While preparing for the trial of one of the coconspirators, an investigator for the
district attorney‟s office found a photograph on defendant‟s Facebook site showing a
male holding her arms as she held a handgun. A sheriff‟s detective was told by two
people who were present when the photograph was taken that the male was defendant‟s
boyfriend and he was showing defendant how to aim and shoot at a target while they
were camping.
                          The Probation Violation Sentencing
       The court announced its intent to sentence defendant to the upper term of nine
years for the robbery, one year for the firearm enhancement and a consecutive term of
two years for the conspiracy. The court then gave the following reasons for its intended
sentence:
       “In arriving at this intended sentence, the Court has considered that Defendant
took advantage of a position of trust. She was friends with the victims and introduced
and set up the initial meeting to purchase marijuana. As a result of her involvement and
the information she subsequently provided, the victims were shot to death with a .45-
caliber handgun. The Court has considered that Defendant has no known prior criminal
record; however, in considering the totality of the circumstances, I do believe that the
upper term is warranted.”3 (Italics added.) Later, in responding to defense counsel‟s


3 Prior to stating the reasons for its intended state prison sentence, the court cited
several reasons for denying another grant of probation. (Cal. Rules of Court,
rule 4.414(a)(1), (a)(3), (a)(4), (a)(8); undesignated rule references are to the
California Rules of Court.) While the trial court could have used any of these
reasons to impose the upper term (People v. Scott (1994) 9 Cal.4th 331, 350, fn. 12;
People v. Bowen (1992) 11 Cal.App.4th 102, 106), it did not expressly state that it
was doing so.

                                             5
request to impose no more than the low term, the court further observed that not only had
defendant taken advantage of a position of trust, but she also had admitted to a detective
that she was also involved in the second plan (to tie up the victims). And the court
reiterated that there had been the loss of two lives.
                                           DISCUSSION
                     I. Imposition of the Upper Term for Robbery
       Defendant contends the court abused its discretion in imposing the upper term of
nine years. She asserts that the trial court relied on a single factor -- that defendant took
advantage of a position of trust in that she was friends with the victims -- and that this
factor was outweighed by other circumstances. She asserts the court abused its discretion
in imposing the upper term. We find no abuse of discretion.
       A trial court‟s sentencing decision is reviewed for abuse of discretion. (People v.
Sandoval (2007) 41 Cal.4th 825, 847.) “In reviewing for abuse of discretion, we
are guided by two fundamental precepts. First, „ “[t]he 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.” ‟ [Citation.] Second, a „ “decision
will not be reversed merely because reasonable people might disagree. „An appellate
tribunal is neither authorized nor warranted in substituting its judgment for the judgment
of the trial judge.‟ ” ‟ [Citation.] Taken together, these precepts establish that a trial
court does not abuse its discretion unless its decision is so irrational or arbitrary that no
reasonable person could agree with it.” (People v. Carmony (2004) 33 Cal.4th 367, 376-
377.) A single aggravating factor is sufficient to make a defendant eligible for an upper-
term sentence. (People v. Black (2007) 41 Cal.4th 799, 813.)
       Defendant asserts that the trial court cited only one factor in aggravation in giving
its reasons for imposing the upper term -- that defendant took advantage of a position of

                                               6
trust. (Rule 4.421(a)(11).) Defendant does not assert that this factor has no application
here, but she places little value on it, stating, “[t]here is nothing to suggest the
relationships were more than casual friends,” they were not romantically involved and
there was no fiduciary relationship. From this, defendant argues, “the violation of trust
was not as great as it could have been.”
       The aggravating factor that a defendant violated a position of trust focuses on a
defendant‟s special status vis-à-vis the victim and the exploitation of trust or confidence.
(People v. Dancer (1996) 45 Cal.App.4th 1677, 1694-1695, disapproved on other
grounds in People v. Hammon (1997) 15 Cal.4th 1117, 1123.) As we have noted, the
trial court observed that defendant “took advantage of a position of trust. She was friends
with the victims and introduced and set up the initial meeting to purchase marijuana. As
a result of her involvement and the information she subsequently provided, the victims
were shot to death . . . .” As can be seen by the italicized portion of the trial court‟s
statement of reasons, the trial court recognized it was defendant‟s friendship with the
victims, and the information she provided about them, that led to their deaths. The
information “subsequently provided” (after the initial meeting) was that the victims were
“good fighters,” that they had firearms, and that the firearms would be in the trailer.
       In addition to finding defendant had taken advantage of a position of trust by
providing information she obtained as a result of her relationship with the victims, the
court also cited other factors in aggravation in the italicized portion of its reasons. The
court cited the loss of life (an aggravating factor within rule 4.421(a)(1)), and that there
were two lives lost (an aggravating factor within rule 4.408(a), other criteria reasonably
related to the sentencing decision). The court also cited defendant‟s involvement in the
second plan. (Rule 4.421(a)(8).) Defendant's assertion that the court cited only one
aggravating factor is belied by the record.
       In her reply brief, defendant asserts that the trial court‟s reference to the loss of
two lives “applies to the court‟s reasoning for not selecting the low term. It has no

                                               7
bearing on why it chose the upper term.” Defendant lifts the court‟s comments out of
context and ignores the court‟s reasons, which we italicized, ante, for imposing its
intended sentence.
       Reading the court‟s comments in context, we note defense counsel suggested that
defendant‟s possession of the firearm, the basis for the probation violation, was not as
serious as finding a gun under the seat of a car or in a house. He argued, “. . . I don‟t
think it rises to the level of sentencing this young lady to prison. I think she should be
reinstated. And, albeit, I don‟t believe that she should receive the upper term for this
violation.” I think the Court should consider [the] lower term.” To this the court
responded that the probation violation was not a “technical violation.” The court stated,
“There is no reason that you would try to learn how to shoot a gun if you didn‟t intend to
shoot a gun. And when you think of the ultimate outcome, the loss of two lives, the lower
term does not seem warranted.” (Italics added.)
       Thus, it is clear the court‟s comments were in response to defense counsel‟s
alternative request of a low-term sentence. Having previously stated that its
intended sentence, including selecting the upper term for robbery as the base term,
was based in part on the fact that “[a]s a result of her involvement and the information
she subsequently provided, the victims were shot to death,” it is equally clear that the
court factored the loss of two lives into its upper-term sentencing choice.
       As to defendant‟s purported offsetting mitigating circumstances, in addition to her
view that the probation violation was not serious, she cites the following: She had no
prior criminal record; both the prosecutor and the court commented favorably at the
initial sentencing hearing regarding her thorough cooperation with law enforcement;
since nothing was taken, it appears the offense was attempted robbery rather than
robbery; and she had been crime free for more than four years when the violation was
discovered. Aside from defendant‟s having no prior convictions, for reasons we shall



                                              8
discuss, the other factors she cites either do not weigh into the calculus for determining
the base term sentence or are entitled to little weight.
       While events and conduct occurring during probation may be considered in
determining whether to reinstate a defendant on probation and whether to run state prison
sentences consecutively or concurrently, such events or conduct may not be considered in
determining the base term. (Rule 4.435;4 People v. Leroy (1984) 155 Cal.App.3d 602,
605-606 [court may determine postprobation conduct in determining whether to impose
consecutive or concurrent sentences]; People v. White (1982) 133 Cal.App.3d 677, 681
[court must consider postprobation events to determine whether the defendant should be
reinstated on probation or incarcerated].) Thus, defendant‟s claim that her probation
violation was not as serious “as it could have been” is not a mitigating factor to be
considered in determining the base term. Even if it could be considered, it would be
of little aid to her, because it still shows her willingness to violate a condition of her
probation by committing another felony offense. And the felony offense she committed,
which was blatantly displayed on the Internet, involved possession of a firearm -- the
same type of instrument that took the lives of the two victims here. Moreover, as the trial
court noted, she had no legitimate reason to learn how to aim and shoot a firearm if she
had no intent to possess one.
       Defendant sees mitigation in remaining crime free during the four years before the
violation of probation. While the court was free to consider that defendant was crime
free between the time she entered her plea on June 2, 2006 and the grant of probation on
May 20, 2009, rule 4.435 precludes consideration of her conduct after the grant of



4  Rule 4.435 provides in pertinent part: “(b) On revocation and termination of probation
under section 1203.2, when the sentencing judge determines that the defendant will
be committed to prison: [¶] (1) . . . [¶] The length of the sentence must be based on
circumstances existing at the time probation was granted, and subsequent events may
not be considered in selecting the base term . . . .”

                                               9
probation for purposes of determining the base term. However, that defendant remained
crime free during her period of cooperation with the prosecution is entitled to little
weight, as she was motivated during that time period to achieve the benefit of her bargain
and avoid exposure to two life terms for murder. And even if the entire four years could
be properly considered, we would likely view that period as a rather short lapse of time,
constituting an aggravating factor. After all, it had only been four years since she hatched
the idea to commit a theft that resulted in the death of two people, and only 16 months
after she was formally placed on probation.
       As for defendant‟s cooperation prior to her grant of probation, defendant received
the benefit of her agreement. Where, as here, a defendant‟s cooperation with law
enforcement was the product of a plea bargain whereby she obtained the dismissal of two
counts of murder, her cooperation is not a mitigating factor. (See People v. Burg (1981)
120 Cal.App.3d 304, 306-307 [a guilty plea resulting from a plea bargain is not a
sufficient acknowledgment of guilt to constitute a mitigating factor since the admission is
only to receive a benefit from the prosecution].)
       That the offense may actually only have been attempted robbery because nothing
in the record shows that anything was taken is a distinction with no difference. Not only
is the claim contrary to defendant‟s plea, which admitted the offense was a robbery, 5 but
even if nothing was taken, that fact is in no way attributable to defendant. It was the
resistance by the victims that prevented a completed robbery.
       In sum, the court cited multiple aggravating factors. Any one of those factors
clearly outweighed the mitigating factors that could be considered, including the fact that
defendant had no prior convictions.




5 A defendant may not challenge on appeal the factual basis for his or her entry of a plea.
(People v. Voit (2011) 200 Cal.App.4th 1353, 1365-1366.)

                                              10
       Finally, defendant contends if probation was granted initially, it does not follow
that defendant should now receive the upper term of nine years. Defendant asserts that
the imposition of the upper term, when her original sentence was probation “renders the
sentence hugely disproportionate to the facts of the case” and was “grossly unfair under
the circumstances.” In making this argument, defendant overlooks three circumstances.
First, the bar was set low in this case by the plea agreement. Defendant was initially
granted probation for her agreement to testify truthfully, and for no other reason. Second,
defendant was originally exposed to indeterminate life sentences for the deaths of two
people, and as part of her bargain, she agreed that her maximum exposure would be
limited to 12 years. Third, section 1203.2, subdivision (c) expressly provides that,
“[u]pon any revocation and termination of probation the court may, if the sentence has
been suspended, pronounce judgment for any time within the longest period for which
the person might have been sentenced.” (Italics added.) Thus, the statutory scheme
contemplates the potential for long sentences after revocation of probation.
       Given the totality of the circumstances, there was no abuse of discretion by the
court in imposing the upper term for the robbery.
                            II. Imposition of Consecutive Sentences
       Defendant contends reversal of the consecutive term of two years for the
conspiracy conviction is required for three reasons. First, the court failed to state any
factor for imposing the consecutive term. Second, if this court finds the trial court did
state such a factor, it must have been only that defendant had taken advantage of a
position of trust, which constitutes a prohibited dual use of that factor. Third, if this
court concludes defendant‟s failure to object to the foregoing errors forfeited the issue
for appellate review, then she received ineffective assistance of counsel.
       We conclude that defendant has forfeited the first two claims. In People v. Scott
(1994) 9 Cal.4th 331 (Scott), our high court stated, “We conclude that the waiver doctrine
should apply to claims involving the trial court‟s failure to properly make or articulate its

                                              11
discretionary sentencing choices. Included in this category are 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 give a sufficient number of valid
reasons.” (Scott, supra, 9 Cal.4th at p. 353.) Here, defendant did not object on the
ground that the trial court failed to specifically state any reason for imposing a
consecutive sentence, or on a dual use of fact ground. Consequently, the issue is
forfeited.
       Defendant claims that defense counsel preserved these contentions. She points
out that in her statement of mitigation, which the trial court stated it had read and
considered, she argued that the probation officer‟s statement that consecutive sentencing
was proper because the crimes were committed at different times and separate places
(rule 4.425(a)(3)) was not factually accurate and should have alerted the court that it was
required to state reasons for imposing a consecutive term.
       We disagree. “Although the court is required to impose sentence in a lawful
manner, counsel is charged with understanding, advocating, and clarifying permissible
sentencing choices at the hearing. Routine defects in the court‟s statement of reasons are
easily prevented and corrected if called to the court‟s attention. As in other waiver cases,
we hope to reduce the number of errors committed in the first instance and preserve the
judicial resources otherwise used to correct them.” (Scott, supra, 9 Cal.4th at p. 353.)
Thus, it was defendant‟s burden to point out to the court at the time of sentencing that it
had not stated any reason for imposition of a consecutive term on the conspiracy sentence
or that it had double-counted factors. The court could have corrected the error then.6
Therefore, defendant may not raise the issue for the first time on appeal.



6 On January 20, 2012, the People filed a motion to augment the record with the trial
court‟s minute order denying defendant‟s petition for modification of sentence, which the

                                             12
       As to defendant‟s claim that failure to object results in constitutionally ineffective
assistance of counsel, we disagree. To establish ineffective assistance of counsel, a
defendant must show (1) counsel‟s performance was below an objective standard of
reasonableness under prevailing professional norms, and (2) the deficient performance
prejudiced defendant. (Strickland v. Washington (1984) 466 U.S. 668, 688, 691-692
[80 L.Ed.2d 674] (Strickland); People v. Ledesma (1987) 43 Cal.3d 171, 216-217
(Ledesma).) “ „Surmounting Strickland‟s high bar is never an easy task.‟ [Citation.]”
(Harrington v. Richter (2011) ___ U.S. ___ [178 L.Ed.2d 624, 642 (Richter), quoting
Padilla v. Kentucky (2010) 599 U.S. ___, ___ [176 L.Ed.2d 284, 297].)
       We follow our high court‟s direction, “ „If it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course
should be followed.‟” (In re Alvernaz (1992) 2 Cal.4th 924, 945.) To show prejudice,
a defendant must show a reasonable probability that he would have received a more


trial court filed over a month after defendant filed her notice of appeal. Although not
necessary for our disposition of this matter, we grant the People‟s motion to augment
the record with the court‟s minute order.

  In its order, the court wrote, “[D]efendant seeks a concurrent sentence as to Count 4,
a violation of Penal Code section 182. The Court continues to find that based upon
California Rule[s] of Court, Rule 4.425(a)(3) [the crimes were committed at different
times or separate places, rather than being committed so closely in time and place as to
indicate a single period of aberrant behavior], the crime of robbery of an inhabited
dwelling in concert with two or more persons (Count 3) and the crime of conspiracy to
commit robbery of an inhabited dwelling in concert with two or more persons (Count 4)
occurred at different times and locations. The robbery of an inhabited dwelling in
concert with two or more person occurred at Olivehurst, California on or about
September 27, 2005. The conspiracy to commit robbery of an inhabited dwelling
in concert with two or more persons began in early September 2005 in the Sacramento,
California area. . . . In view of the Court‟s sentencing objectives and Rule 4.425(a)(3),
the Court continues to finds [sic] that the consecutive sentence of one-third of the
middle term of six years, namely 2 years is warranted for the subordinate term, a felony
violation of Penal Code section 182.” While the trial court indicates it “continues to”
make the above findings, the court never articulated that finding on the record during
the sentencing hearing.

                                              13
favorable result had counsel‟s performance not been deficient. (Strickland, supra,
466 U.S. at pp. 693-694; Ledesma, supra, 43 Cal.3d at pp. 217-218.) “A reasonable
probability is a probability sufficient to undermine confidence in the outcome.”
(Strickland, supra, 466 U.S. at p. 694; accord, Ledesma, supra, 43 Cal.3d at p. 218.)
       Rule 4.425(b) provides that “[a]ny circumstances in aggravation or mitigation
may be considered in deciding whether to impose consecutive rather than concurrent
sentences,” except a fact used to impose the upper term, a fact used to otherwise enhance
the defendant's prison sentence, and a fact that is an element of the crime. As we have
noted, any one of the aggravating factors identified by the trial court was sufficient to
justify imposition of the upper term. For example, assuming that in selecting the upper
term the court used the factor that defendant took advantage of a position of trust in the
way it described when it gave its reasons for imposing the upper term, the following
factors remain available for use in imposing a consecutive sentence. Not only did the
robbery involve great violence (rule 4.421(a)(1)), but people were killed. Thus, the
robbery was distinctly worse than the customary robbery. (People v. Castorena (1996)
51 Cal.App.4th 558, 562 (Castorena) [where the facts surrounding the charged offense
exceed the minimum necessary to establish the elements of the crime, the trial court can
use such evidence to aggravate the sentence and the trial court is not precluded from
using facts to aggravate a sentence when those facts establish elements not required for
the underlying crime].) Moreover, the fact that there is more than one victim is a proper
factor for imposition of upper term or consecutive sentences. (People v Calhoun (2007)
40 Cal.4th 398, 405-408, citing rule 4.408(a).)
       Defendant‟s participation in the way the crime was carried out shows planning
and sophistication (rule 4.421(a)(8)). In addition, she induced others to participate in
the commission of the crime and occupied a position of leadership in its commission
(rule 4.421(a)(4)). Defendant‟s contention that consideration of the use of the planning
factor violates the dual use rule because planning is an element of the conspiracy

                                             14
unavailing. Even assuming planning is an element of conspiracy,7 in making a
sentencing choice the court may consider the totality of a defendant‟s involvement in the
crime. (Rule 4.421(a)(4); Castorena, supra, 51 Cal.App.4th at p. 562.) Defendant was
more than a follower. She originated the idea of committing a theft of marijuana from
the victims who were killed.8 Moreover, the object of the theft was a suspected large
quantity of contraband that was to be sold and defendant was to share in the proceeds.
(Rule 4.408(a); see rule 4.421(a)(10).)9 Lastly, we observe that the victims‟ family dog


7 Strictly speaking, planning is not an element of conspiracy. “A conviction for
conspiracy requires proof of four elements: (1) an agreement between two or more
people, (2) who have the specific intent to agree or conspire to commit an offense, (3) the
specific intent to commit that offense, and (4) an overt act committed by one or more of
the parties to the agreement for the purpose of carrying out the object of the conspiracy.
[Citations.]” (People v. Vu (2006) 143 Cal.App.4th 1009, 1024 (Vu).) Nor does the
prosecution have to show sophistication as an element of conspiracy. Yet, the original
plan conceived by defendant showed just that.
8 While the trial court discussed defendant‟s involvement in the crime in the context of
denying probation (see fn. 3, ante) and in later describing how she took advantage of a
position of trust, the court did not expressly mention as aggravating circumstances for
imposing the upper term that defendant conceived the idea of stealing the marijuana
from the victims, presented that idea to the coconspirators, and did nothing to stop the
commission of the crimes.

  The other aspects of defendant‟s involvement the court expressly mentioned it
considered in connection with the position of trust factor could have been considered
under rule 4.421(a)(4) as circumstances showing her leadership in the crime or as
separate factors relevant to the sentencing decision under rule 4.408(a). These included
the following: defendant took the other coconspirators to the location, actively
participated in the first attempt to steal the marijuana by luring one of the victims away
from the premises, and provided the coconspirators with information concerning the
victims‟ ability to resist, including the fact that the victims had firearms and the location
where they kept those firearms. As the court appears to have considered these facts under
the position of trust factor, they cannot be used again as a reason for consecutive
sentences.
9 Under rule 4.421(a)(10), it is an aggravating factor when the crime involves a “large
quantity of contraband.” The record is not clear on the size of the crop defendant and her

                                             15
was shot, a violation of section 597, subdivisions (a) and (d) and a fact that could
be considered an aggravating factor under rule 4.421(a)(1), facts related to the
crime, whether or not charged, that involved “a high degree of cruelty, viciousness,
or callousness.” Because these factors would all be available to the court upon
resentencing,10 there is no reasonable likelihood defendant would obtain a more
favorable outcome. Hence, defendant cannot establish prejudice.
                                      DISPOSITION
       The judgment is affirmed.



                                                               MURRAY                   , J.



We concur:



                RAYE                     , P. J.



              DUARTE                     , J.



crime partners sought to steal, but we must assume the conspirators thought it large
enough that they could make money from selling it. Even assuming the crop did not
qualify as particularly large, that defendant suggested stealing a controlled substance
knowing that the purpose was to resell it and that she planned to personally share in the
proceeds are facts reasonably related to the sentencing decision under rule 4.408(a).
10 We need not decide whether the court was justified in determining that the robbery
and conspiracy were committed at different times and places, because that reason was
only stated by the trial court in its order denying defendant‟s motion to modify the
sentence after defendant‟s notice of appeal was filed. We do note that conspiracy is an
ongoing going crime (Vu, supra, 143 Cal.App.4th at p. 1024), so a conspiracy may take
place in locations other than where the agreement is reached.

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