If a claim is forfeited, would the claim be rejected?

Had the claim not been forfeited, we would reject it because the trial court did not abuse its discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847.) In deciding whether to impose the upper term for an offense, the trial court may not rely on a "fact that is an element of the crime upon which punishment is being imposed . . . ." (Cal. Rules of Court, rule 4.420(d).) Additionally, "the court may not impose an upper term using the fact of any enhancement upon which sentence is imposed under any provision of law." ( 1170, subd. (b), see also Cal. Rules of Court, rule 4.420(c).) The sentence imposed by the trial court complied with both of these rules.