Can a defendant successfully argue that her trial counsel's representation was deficient for failing to object to the middle term of her sentence?

Defendant cannot demonstrate her trial counsel's representation was deficient for failing to object because it was not improper for the trial court to use the fact that defendant used a firearm and inflicted great bodily injury as aggravating factors. The prohibition against dual use in rule 4.420(d) applies to using an element of a crime to impose the upper term; it does not apply when, as here, the middle term is imposed. (See People v. Haynes (1984) 160 Cal.App.3d 1122, 1137-1138.) Similarly, the prohibition against dual use in section 1170, subdivision (b) does not apply when the middle term is imposed. Therefore, trial counsel was not deficient in failing to object and defendant has not established ineffective assistance.

Defendant claims that, under the current determinate sentencing law, trial courts are free to choose any one of the three terms (lower, middle, or upper). As such, the middle term is a greater punishment than the lower term, and the middle term thus becomes a "greater term," which cannot be imposed on a factor that is an element of the crime. Because defendant cites no authority for this proposition, her claim requires no further discussion. (People v. Hardy (1992) 2 Cal.4th 86, 150 [appellate court may decline to address argument not supported by citation to relevant authority]; People v.

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