Error and/or relief
(Gary note: This opinion actually contained no relief for the defendant because there was no harm, therefore no foul. I.e., Harmless error. But I have included for some important principles that the defendant prevailed on, save the need to show prejudice.)
The firearm and great bodily injury findings on the defendant’s murder convictions must be reversed, though it does not affect his sentence because the court did not impose sentence on those enhancements. His counsel was ineffective for failing to object to the dual use of facts at sentencing, but the error was harmless because the court cited and relied on several other properly established factors in aggravation and made it clear that the court intended to impose the upper term.
First Holding:
The jury found the defendant personally inflicted great bodily harm within the meaning of section 12022.7(a) when he committed each of the counts of murder. But section 12022.7 specifically states that it does not apply to the crime of murder. We reverse those findings, but the sentence remains unaffected because the court did not impose punishment for those enhancements.
Authority:
PEN 12022.7(g)
Second Holding:
To prevail on a claim of ineffective assistance of counsel, the defendant must show that his counsel’s performance was deficient, and that the deficiency prejudiced the defense. On direct appeal, a finding of deficient performance is warranted where (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation.
Where counsel’s trial tactics or strategic reasons for challenged decisions do not appear on the record, we will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsel’s acts or omissions.
Authority:
People v. Johnsen (2021) 10 Cal.5th 1116, 1165
Third Holding:
A trial court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law.
We agree with the defendant that there is no conceivable reason for his counsel to have failed to raise this point in the trial court.
The law prohibiting the dual use of facts for an enhancement and to aggravate a sentence is clear, and the People do not dispute that it barred the court from relying on the firearm and great bodily injury aggravating circumstances to impose the upper term on count 10. The defendant had nothing to lose by raising this point and could only face a longer sentence by allowing the court to consider more aggravating circumstances than were proper.
Authority:
PEN 1170(b)(5)
Rules of Court, rule 4.420(g)
People v. Scott (1994) 9 Cal.4th 331, 350
Fourth Holding:
Establishing prejudice for a claim of ineffective assistance of counsel requires a defendant to demonstrate a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.
The defendant fails to establish prejudice because the record clearly indicates that the trial court could and would have imposed the same sentence even without the additional aggravating circumstances. A trial court may impose an upper-term sentence based on even a single aggravating factor.
Because the trial court made every possible choice to lengthen the term of the defendant’s sentence, well beyond the limit of what the defendant could be physically capable of serving [more than 200 years], the trial court left no doubt that it would have imposed the same upper term on count 10 even without two of the aggravating circumstances.circumstance.
Authority:
In re Gay (2020) 8 Cal.5th 1059, 1086
People v. Lynch (2024) 16 Cal.5th 730, 764