When a trial court properly finds that S.D's vulnerability as an aggravating factor in determining the appropriate sentence for perjury, can defense counsel object to the additional factor of suborning perjury?

When a trial court properly finds one aggravating circumstance in accordance with Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856], a defendant becomes eligible for an upper-term sentence. As a result, any additional factfinding engaged in by the trial court in selecting the appropriate sentence does not violate the defendant's right to a jury trial. (Black, supra, 41 Cal.4th at p. 812.) Here, the trial court properly found S.D.'s vulnerability an aggravating factor. There is no reason to believe the trial court would have imposed lesser punishment had it not cited to the additional aggravating factor of suborning perjury. Therefore, defense counsel's failure to object to the perjury factor would not have changed the result.

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