Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. BF111229A, Michael G. Bush, Judge.
Laura P. Gordon, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, David Eldridge, Brian Alvarez and Leslie W. Westmoreland, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
VARTABEDIAN, Acting P. J.
Defendant David McGuire was convicted of several crimes and enhancements after he was involved in a shooting at a park. In his prior appeal, we found the evidence was insufficient to support the gang enhancement and remanded the matter to the trial court for re sentencing. In all other respects, we affirmed the convictions. Defendant has appealed from the sentence imposed at re sentencing. He raises multiple sentencing issues. We affirm.
On our own motion, we take judicial notice of the record in case No. F051892, People v. McGuire.
FACTS
On July 30, 2005, defendant was at a barbeque at a public park in Bakersfield. He and another man got into an argument. As a result, defendant took out a gun and fired several shots at the other man. Six-year-old Liliana was shot in the foot.
Defendant was convicted of assault with a semiautomatic firearm (count 1, Pen. Code, § 245, subd. (b)). In addition, the jury found he personally used a firearm and inflicted great bodily injury (Pen. Code, §§ 12022.5, subd. (a) & 12022.7, subd. (a)). His second conviction was for being a felon in possession of a firearm (count 3, Pen. Code, § 12021, subd. (a)(1)). As to this count, it was also found true that he committed the crime for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)(1)). His last conviction was for possession of a handgun by an active gang member (count 4, Pen. Code, § 12031, subd. (a)(2)(C)). As to all three counts, it was found true that he suffered several prior prison terms. On December 7, 2006, defendant was sentenced to a term of 27 years and eight months in prison.
In his first appeal, we found the evidence was insufficient to support the gang enhancement. In all other respects, we affirmed the judgment. The matter was remanded to the trial court for re sentencing.
In the interim period between defendant’s original sentence and his re sentencing, many changes occurred in the law regarding sentencing. We will detail those changes in our discussion of the issues.
Defendant was re sentenced on November 19, 2008. He received a total prison term of 26 years as follows.
The court imposed the upper term of nine years for the assault conviction in count 1, finding no circumstances in mitigation and finding the following circumstances in aggravation: “Circumstances in aggravation are the defendant’s prior convictions as an adult and sustained petitions in juvenile delinquency proceedings are numerous. That’s even without regard to the prison prior cases. Just the other cases, they are numerous. The defendant was on state parole when this crime was committed. And, three, his prior performance on juvenile, misdemeanor and felony probation and state parole was unsatisfactory in that he failed to abide by the terms and continued to re-offend.” The court stated that any one of the above factors in aggravation in and of itself would justify the upper term on count 1.
Concerning the Penal Code section 12022.5, subdivision (a) firearm enhancement, the court imposed the upper term of 10 years, finding that defendant’s behavior of firing a weapon in a park full of people was extremely dangerous and justified the upper term. In addition, the court said it would reiterate circumstances in aggravation already stated to the extent permitted by law; again, the court found that any one circumstance would be enough to justify the upper term.
The court added a three-year consecutive sentence to count 1 for the great bodily injury enhancement and imposed four one-year terms for the prior prison term enhancements.
On the remaining two counts, the court imposed the upper term of three years, staying those terms pursuant to Penal Code section 654.
DISCUSSION
a. Recent Changes in the Law for Imposing an Upper Term Sentence
In Apprendi v. New Jersey (2000) 530 U.S. 466 the United States Supreme Court held that the right of a criminal defendant to a jury trial is violated when the trial court is allowed to increase a criminal penalty beyond the prescribed statutory maximum based on a fact, other than a prior conviction, which was not admitted by the defendant or found true by a jury.
In 2007, the United States Supreme Court in Cunningham v. California (2007) 549 U.S. 270 revisited the issue, considering the constitutionality of California’s determinate sentencing law after Apprendi. The United States Supreme Court evaluated Penal Code former section 1170, subdivision (b), which provided that “the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime.” The court in Cunningham found this section violated the rule set forth in Apprendi because it created a presumption that made the middle term the statutory maximum, thus impermissible allowing trial courts to impose an aggravated upper prison term “based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant.” (Cunningham v. California, supra, 549 U.S. at p. 275.)
The California Legislature responded to Cunningham by amending the determinate sentencing law effective March 30, 2007. (Stats. 2007, ch. 3, § 2.) The amendments eliminated the middle term as the statutory maximum and gave the trial court discretion to select among the lower, middle, and upper terms without stating ultimate facts deemed to be aggravating or mitigating and without weighing those circumstances. “[A] trial court is free to base an upper term sentence upon any aggravating circumstance that the court deems significant, subject to specific prohibitions.” (People v. Sandoval (2007) 41 Cal.4th 825, 848.)
In People v. Sandoval, supra, 41 Cal.4th at pages 853-857, the court held that application of the amended version of the determinate sentencing law to all sentencing proceedings conducted after the effective date of the amendments does not violate the prohibition against ex post facto laws, regardless of whether the offense was committed prior to the effective date of the amendments.
Although defendant’s crime occurred in 2005, his current sentencing occurred post-Cunningham and under the new version of Penal Code section 1170, subdivision (b). That section now provides in part: “When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court.”
b. Constitutional Claims
Defendant contends that the retroactive application of the amendment to Penal Code section 1170, subdivision (b) to his case is a violation of due process and is a violation of the prohibition of ex post facto laws.
Defendant recognizes that the case of People v. Sandoval, supra, 41 Cal.4th 825 resolves these issues against him, but he raises the issues to preserve them for federal review. We are bound by the decisions of the California Supreme Court and we therefore reject defendant’s argument. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450.)
c. Fact of a Prior Conviction
Although acknowledging that all of the United States Supreme Court decisions culminating in Cunningham have stated the right to a jury trial does not apply to “the fact of a prior conviction,” defendant argues that “the fact of a prior conviction” should be interpreted narrowly. In particular, defendant contends the trial court’s three stated factors in aggravation--the numerous prior convictions, the fact that defendant was on parole when the crime was committed, and that his prior performance on probation and parole was unsatisfactory--do not qualify as a “fact of a prior conviction” under a narrow reading of that term. Thus, defendant argues the trial court erred in utilizing these factors because they were not proven to a jury beyond a reasonable doubt.
One of the three aggravating factors used by the trial court was that defendant was on parole at the time he committed the instant offense. “[T]he federal constitutional right to a jury trial and proof beyond a reasonable doubt on aggravating circumstances does not extend to the circumstance that a defendant was on probation or parole at the time of the offense.” (People v. Towne (2008) 44 Cal.4th 63, 79.)
The trial court stated as an aggravating factor that defendant’s performance on juvenile probation, misdemeanor probation, felony probation and state parole was unsatisfactory because defendant continued to re offend. When a defendant’s unsatisfactory performance on probation and/or parole is based on his record of re offending while on probation or parole, the right to a jury trial does not apply. (People v. Towne, supra, 44 Cal.4th at p. 82.) The right to a jury trial applies when unsatisfactory performance on probation and/or parole is based only on facts other than a defendant’s convictions sustained while on probation and/or parole. (Id. at pp. 82-83.)
The third factor utilized by the trial court is that defendant’s prior convictions as an adult and sustained petitions in juvenile delinquency are numerous. “The determinations whether a defendant has suffered prior convictions, and whether those convictions are ‘numerous or of increasing seriousness’ [citation], require consideration of only the number, dates, and offenses of the prior convictions alleged. The relative seriousness of these alleged convictions may be determined simply by reference to the range of punishment provided by statute for each offense. This type of determination is ‘quite different from the resolution of the issues submitted to a jury, and is one more typically and appropriately undertaken by a court.’ [Citation.]” (People v. Black (2007) 41 Cal.4th 799, 819-820.)
The three aggravating factors utilized by the trial court here have been approved by the California Supreme Court as appropriate conditions arising from the “fact of a prior conviction” that do not require a finding by the jury beyond a reasonable doubt before they can be utilized in imposing an upper term sentence.
d. Application of Penal Code Section 1170, Subdivision (b) to Enhancements
Defendant argues that even if Penal Code section 1170, subdivision (b) is constitutionally valid as to the upper term for his convictions, the amendment does not legitimize imposition of the upper term on the firearm enhancement. Defendant argues that the reformed sentencing scheme described by Sandoval only applies to substantive offenses and not to enhancements.
We need not determine this issue because, as we will discuss, the trial court utilized at least one proper aggravating factor to impose the upper term on the firearm enhancement, and this factor was valid before changes to Penal Code section 1170, subdivision (b), and pre-Sandoval. A sentencing choice can be valid even if supported by only a single aggravating factor. (People v. Hall (1994) 8 Cal.4th 950, 963-964.)
e. Judicial Fact Finding
Defendant argues that Penal Code section 1170, as reformed by the California Supreme Court in Sandoval, continues to require judicial fact finding as a predicate to the imposition of an aggravated term and, as such, it violates the constitutional right to a jury trial.
This attack is another assault on Sandoval. We are bound to follow Sandoval. Also, defendant’s attack focuses on factors other than those based on the “fact of a prior conviction.” Because the trial court’s choices were made using factors drawn from defendant’s prior convictions, we need not look to the validity of other factors used by the trial court.
f. Dual Use of Facts
Assuming for the sake of argument that the new sentencing scheme is valid, defendant argues the trial court erred in any event because it violated the proscription against dual use of facts.
“[T]he court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed....” (Pen. Code, § 1170, subd. (b).) “To comply with section 1170 (b), a fact charged and found as an enhancement may be used as a reason for imposing the upper term only if the court has discretion to strike the punishment for the enhancement and does so.” (Cal. Rules of Court, rule 4.420(c); see People v. Scott (1994) 9 Cal.4th 331, 350.)
Defendant contends the trial court’s three reasons for imposing the upper term on the assault conviction and for the firearm enhancement were all dependent on the convictions that resulted in his prior prison terms. Because the court imposed a one-year enhancement for each of the four prior prison terms, defendant contends the reasons used by the court were a dual use of facts.
In finding that defendant’s prior convictions and prior sustained juvenile petitions were numerous, the trial court expressly stated that its finding was made “without regard to the prison prior cases.” Defendant suffered a combined total of over 25 prior convictions and sustained petitions in juvenile court. Over 20 convictions and sustained petitions remain after the convictions that served as the basis for the prior prison terms are removed. While this court has held that it is improper to use the same prior conviction to impose an upper term and as a basis for a prior prison term (People v. McFearson (2008) 168 Cal.App.4th 388, 392-393), here numerous prior convictions and sustained juvenile petitions remain to support the trial court’s finding of numerous prior convictions absent the convictions that were subject to prior prison term enhancements. The court expressly stated that its finding was based without regard to the prior prison terms that were used as enhancements.
Some of the prior prison terms involved more than one conviction.
Defendant challenges the trial court’s use as an aggravating factor that he was on parole at the time of the offense. Defendant contends that one of the convictions that resulted in his parole was also a conviction that was the basis of his prior prison term enhancement. This argument was rejected in People v. Yin (2007) 152 Cal.App.4th 366. “Parole status and performance on parole are distinct aggravating factors. Each is distinct from the aggravating factors of having numerous prior convictions and having served prior prison terms.” (Id. at p. 369.)
We need not determine the validity of the third factor--that defendant’s performance on probation and parole was unsatisfactory--because there are two valid aggravating factors. (We do note that defendant engaged in a nearly continuous cycle of criminal behavior over the course of almost 20 years and was rarely free of custody, probation and/or parole.) The trial court explicitly stated that any one factor would be sufficient to impose the upper term on the conviction and the upper term on the firearm enhancement. “A single aggravating factor may support a sentencing choice.” (People v. Yin, supra, 152 Cal.App.4th at p. 369.)
In People v. Moberly (2009) 176 Cal.App.4th 1191, we held that a trial court may use the same aggravating factor to impose both an upper term on a conviction and an upper term for a firearm enhancement.
In conclusion, we are bound by the decisions of the California Supreme Court upholding the validity of the changes to the determinate sentencing law post-Cunningham and upholding sentencing factors based on the “fact of a prior conviction.” In any event, the changes to Penal Code section 1170, subdivision (b) do not affect the sentence here because the factors used by the trial court were valid factors and would support the sentence even under the sentencing law in effect prior to the changes.
DISPOSITION
The judgment is affirmed.
WE CONCUR: LEVY, J., KANE, J.