(Super. Ct. No. CRF06110)
The opinion of the court was delivered by: Murray , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
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);*fn1 hereafter 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
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.
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.*fn2
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 ...