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People v. Appodaca6/23/2004
ed shotgun shell was retrieved from where Appodaca had been sitting. The jury could reasonably have found from these facts that Appodaca's hand movements under his legs were an attempt to hide the shell so Adair would not see it. Thus, we reject Appodaca's claim of instructional error because these circumstances support the court's actions in charging the jury with CALJIC No. 2.06.
The Ineffective Assistance of Counsel Claim
The court may not use an element of the defendant's offense to impose an upper term. (Cal. Rules of Court, rule 4.420 (d).) Appodaca's 1995 felony conviction for assault with a firearm was an element of his felon in possession of firearm offense (count I) and felon in possession of ammunition offense (count III). Appodaca cites the court's comment that he "got into the big time" when he committed his 1995 assault with a firearm offense to contend that the court improperly relied on his conviction for this offense to impose the aggravated term on counts I and III. Appodaca further contends that his defense counsel provided ineffective representation at his sentencing hearing because he did not object to the court's use of this conviction to impose the upper term, thus causing him to waive this issue on appeal. (See People v. Scott (1994) 9 Cal.4th 331.) We will reject these contentions.
"In making a sentence choice under Penal Code section 1170, subdivision (c) . . ., the sentencing court need not state facts, but merely reasons. [Citations.] ` o long as the record discloses facts which adequately support those reasons, the trial court's choice will be presumed to have been made on the basis of those facts. . . .' [Citation.] The presumption is rebuttable. [Citation.]" (People v. Granado (1994) 22 Cal.App.4th 194, 203.)
Here, the court found three aggravating circumstances, i.e., Appodaca's prior convictions were numerous, he was on probation when he committed the underlying offense, and his prior performance on probation and parole had been unsatisfactory. Further, the record contains facts that support the court's reliance on each of these circumstances even without considering his 1995 assault conviction.
Moreover, the only evidence Appodaca cites in support of his contention that the court relied on his 1995 assault conviction to impose the aggravated term on counts I and III is the court's statement that Appodaca "got into the big time" when he committed the assault offense. However, the court made this comment in responding to defense counsel's request to strike his assault conviction and it did not mention this conviction again when it found as an aggravating circumstance that Appodaca's prior convictions were numerous. In view of these circumstances, we reject Appodaca's contention that the court used his 1995 assault conviction to impose the aggravated term on counts I and III.
Further, " o demonstrate ineffective assistance of counsel, defendant must show both that counsel's representation fell below an objective standard of reasonableness under prevailing professional norms, and that there is a reasonable probability that, but for counsel's unprofessional errors, the result would have been different. [Citation.]" (People v. Cleveland (2004) 32 Cal.4th 704, 746.)
Since we have found that the court did not rely on his 1995 assault conviction to impose the aggravated term on counts I and III, it follows that defense counsel's representation was not deficient and that it did not prejudice Appodaca. Accordingly, we also reject Appodaca's ineffective assistance of counsel claim.
DISPOSITION
The judgment is affirmed.
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