Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Solano County Super. Ct. No. FCR213332
Ruvolo, P. J.
I.
INTRODUCTION
This case is before us following the California Supreme Court’s order of transfer, with directions to vacate our June 8, 2007 unpublished opinion and reconsider it in light of that court’s decisions in People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval).
II.
BACKGROUND
In his original opening brief in this appeal, appellant Hubert Lee Fontenot, Jr. (Fontenot) claimed the trial court violated his Sixth Amendment right to a jury trial by sentencing him to the upper term based on aggravating factors not found by a jury. In our unpublished decision, we remanded the case to the trial court for resentencing in light of Cunningham v. California (2007) 549 U.S. ___, [127 S.Ct. 856]. The California Supreme Court granted review, and remanded the case with directions to vacate our decision and reconsider it in light of that court’s decisions in Black II and Sandoval.
The Solano County District Attorney charged Fontenot by information with attempted murder (Pen. Code, §§ 187, subd. (a), 664) and assault with a firearm (§ 245, subd. (a)(2)). The information also alleged that, as to the attempted murder charge, Fontenot personally and intentionally discharged a handgun causing great bodily injury (§ 12022.53, subd. (d)), discharged a handgun (§ 12022.53, subd. (c)), and used a handgun (§§ 12022.5, subds. (a), (d), 12022.53, subd. (b)). As to the assault with a firearm charge, the information alleged that Fontenot inflicted great bodily injury. (§ 12022.7, subd. (a).)
Unless otherwise indicated, all further statutory references are to the Penal Code.
The evidence at trial showed that on December 30, 2003, a gang-related altercation occurred on Phoenix Drive in Fairfield, during which Donshay Caldwell (Caldwell) knocked Cory Davis unconscious. Afterwards, Fontenot and Davis telephoned Caldwell and threatened to shoot him.
The following day, Caldwell returned to Phoenix Drive, where an unidentified person informed him that someone wanted to see him at the end of the street. Fontenot, Willie McClure and Markell Davis were there, and words were exchanged. Caldwell and Fontenot began shoving each other, with Fontenot indicating he would “beat [his] ass.” Caldwell walked back towards his car, and Fontenot shot him in the arm.
Caldwell told police officers that Fontenot shot him, and identified Fontenot in a photo lineup. Caldwell would not identify Fontenot as the shooter at trial.
A jury convicted Fontenot of attempted voluntary manslaughter. The jury found true the allegations that Fontenot used a handgun and inflicted great bodily injury as to both counts.
The court sentenced Fontenot to the midterm of three years for attempted voluntary manslaughter, the aggravated term of ten years for the handgun use enhancement, and three years for the great bodily injury enhancement. On the second count, the court imposed a sentence of three years for assault with a firearm, plus ten years for the handgun use enhancement and three years for the great bodily injury enhancement, but stayed this sentence pursuant to section 654. In imposing the upper term for the enhancement, the trial court relied on five aggravating factors: [1] “the crime involved great violence, great bodily harm, threat of great bodily harm or other action disclosing a high degree of cruelty, viciousness and callousness, (2) [Fontenot] was armed with or used a weapon at the time of the commission of the offense, (3) the victim was particularly vulnerable, ([4]) the manner in which the crime was carried out indicates planning, sophistication or professionalism, and . . . [(5) Fontenot’s] prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are of numerous or of increasing seriousness, and we’ll leave it at that.”
Neither party filed a supplemental brief following transfer.
III.
DISCUSSION
Fontenot argued in his supplemental opening brief that his sentence to the upper term of imprisonment for the gun enhancement violated his constitutional rights because it was based on aggravating factors not found true by the jury beyond a reasonable doubt. Our Supreme Court recently held in Black II that “imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (Black II, supra, 41 Cal.4th at p. 816, italics added.) In Black II, the court concluded the defendant’s recidivism rendered him eligible for the upper-term sentence when the trial court found that the defendant’s prior convictions were numerous and of increasing seriousness. (Id. at pp. 812, 818.)
Fontenot also argued that relying on the jury’s findings of great bodily harm and use of a firearm constituted an improper dual use of facts. The Attorney General conceded that the use of a firearm factor could not be used to aggravate Fontenot’s sentence for the gun use enhancement. The Attorney General likewise did not dispute that reliance on the finding of infliction of great bodily harm was a dual use of facts, but that the court properly could rely on the threat of infliction of great bodily harm. In light of the holding in Black II, we need not reach this issue.
Here, the trial court based its sentencing decision on five factors, one of which was that Fontenot’s “prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are of numerous or of increasing seriousness . . . .” Under Black II, the upper term can be justified based on the trial court’s determination that the defendant’s prior convictions were numerous and of increasing seriousness, and only one legally sufficient aggravating circumstance is required. (Black II, supra, at p. 816.) Accordingly, Fontenot’s constitutional rights were not denied by imposition of the upper term on the gun enhancement based on factors relating to his recidivism.
V.
DISPOSITION
The judgment is affirmed.
We concur: Reardon, J., Sepulveda, J.