Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CRF0652
BLEASE, Acting P. J.
A jury convicted defendant Hector Daniel Mendoza of second degree robbery (Pen. Code, § 211; count 1), attempted carjacking (Pen. Code, §§ 664/215, subd. (a); count 2), unlawful taking or driving of a vehicle (Veh. Code, § 10851, subd. (a); count 3), evading a police officer (Veh. Code, § 2800.2, subd. (a); count 4), possession of a firearm by a felon (Pen. Code, § 12021, subd. (a); count 5), possession of a short-barreled shotgun (Pen. Code, § 12020, subd. (a)(1); count 7), two counts of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(2); counts 8 and 11), discharging a firearm in a grossly negligent manner (Pen. Code, § 246.3, subd. (a); count 9), grand theft (Pen. Code, § 487, subd. (c); count 10), drawing or exhibiting a firearm to a motor vehicle occupant (Pen. Code, § 417.3; count 12), possession of a loaded firearm on his person or in a vehicle by a felon (Pen. Code, § 12031, subd. (a)(2)(A); count 13), resisting arrest (Pen. Code, § 148, subd. (a)(1); count 14), and providing false identification to a police officer (Pen. Code, § 148.9, subd. (a); count 15), and found defendant personally used a firearm within the meaning of Penal Code section 12022.5, subdivision (a)(1) in counts 1, 2, 8, and 11, and within the meaning of section 12022.53, subdivision (c) in count 1 and section 12022.53, subdivision (b) in count 2.
The trial court struck the conviction for grand theft in count 10 and the section 12022.5, subdivision (a)(1) enhancements in counts 1 and 2, sentencing defendant to 31 years and two months in prison.
On appeal, defendant contends the imposition of upper term and consecutive sentences violates the rule of Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely); and Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham), and the trial court was required to stay his sentence for possession of a firearm by a felon or possession of a loaded firearm by a felon in a vehicle. We shall stay the sentence on count 13, order corrections to the abstract, and otherwise affirm.
BACKGROUND
On the morning of January 19, 2006, Leslie Todd started her 2002 Honda Accord which was parked on the street. Leaving the car running, she went inside her house to get a bottle of water. When she returned a few minutes later, her car was gone.
Carol Trama, a neighbor of Todd’s, was sitting at her kitchen table having coffee at around 7:30 a.m. that morning, when she saw a man walk by her house, go to Todd’s house, get in a car, and drive up the street. Trama identified the defendant as the driver of the car at trial and at a show up.
Rafael Damian was digging fence holes that morning when defendant got out of a still running car and walked towards him while carrying a shotgun. Defendant said to Damian, “Give me your wallet if you don’t want to die right now.” Damian tried to ignore defendant and looked away, so defendant shot into the ground about a foot-and-a-half from Damian’s feet. Defendant then reloaded the shotgun, took Damian’s wallet from his pocket, and walked back to the car. Damian identified defendant as the perpetrator at the trial and in a show up.
At around 8:00 a.m. that morning, Diana Garcia was moving her son’s car from the parking lot of her apartment complex to the street. While parking the car, she saw a gray Honda go in front of her and park. The driver, whom she identified as defendant at trial and the show up, got out of his car and asked if the car belonged to somebody. Garcia said it was her car, and defendant replied, “My bad” and walked to his car. As Garcia continued parking, defendant came out of his car holding a gun, which he pointed at Garcia’s head. Garcia panicked, backed up, and drove off.
A dispatch regarding the theft of the Accord went out that morning and Yuba County sheriff’s deputies spotted and pursued the car, Todd’s Accord, which was driven by defendant. The Accord was pursued by two marked patrol cars, at least one of which had emergency lights and sirens activated. The chase reached speeds of up to 80 miles per hour in a 35 mile-per-hour zone. Defendant once crossed into oncoming traffic to pass a gravel truck during the chase.
Defendant stopped the Accord when the street became a dead-end at an apartment complex. He then left the car and fled through the apartment complex with deputies in pursuit. Ignoring a deputy’s demand to stop, defendant kept running, eventually climbing a fence and running through a field, where he was stopped and arrested by a deputy and his K-9 police dog. Defendant told the deputies his name was Hector Servantes.
The Accord was searched, and a deputy found Damian’s wallet along with a loaded shotgun and extra ammunition. Garcia identified the shotgun and the Accord as the ones used in the attempted carjacking.
DISCUSSION
I
Defendant claims his upper term and consecutive sentences are invalid under Blakely, supra, 542 U.S. 296 [159 L.Ed.2d 403] and Cunningham, supra, 549 U.S. ___ [166 L.Ed.2d 856]. We disagree, finding only the Blakely error to be harmless.
The United States Supreme Court held in Cunningham, supra, 549 U.S. at page ___ [166 L.Ed.2d at p. 873] that under California’s determinate sentencing law, the middle term is the statutory maximum which a judge may impose based solely on the facts reflected in the jury verdict or admitted by the defendant. Thus, except for a prior conviction, any fact that increases the penalty for a crime beyond the middle term must be tried to the jury and proved beyond a reasonable doubt. (Id. at p. ___ [166 L.Ed.2d at pp. 873-874].)
The court imposed an upper term sentence for robbery on count 1, the principal term, and stayed upper terms pursuant to Penal Code section 654 in count 8 for assault with a deadly weapon and the firearm enhancement. In imposing the upper term on count 1, the court found as an aggravating factor that defendant had engaged in violent conduct that indicates a serious danger to society. (Cal. Rules of Court, rule 4.421(b)(1).) In count 8, the court sentenced defendant to an upper term for assault with a deadly weapon based on defendant’s unsatisfactory performance on probation or parole and an upper term on the firearm enhancement based on defendant being on probation at the time of the offense. (Rule 4.421(b)(4), (5).) The court also found no mitigating factors regarding any of the sentences.
Before imposing judgment and sentence, the court explained its determination on whether to impose consecutive sentences for the various counts. At the conclusion of its analysis, the court found that “as to some of the counts” several aggravating factors applied, including defendant’s danger to society (rule 4.421(b)(1), prior convictions (rule 4.421(b)(2)), being on probation at the time of the offense (rule 4.421(b)(4)), and unsatisfactory performance on probation or parole (rule 4.421(b)(5)).
Applying Cunningham in People v. Black (2007) 41 Cal.4th 799, 816 (Black II), our Supreme Court held 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 also held that the imposition of consecutive sentences does not violate Blakely. (Id. at p. 823.)
It follows that the exception regarding a prior conviction applies not only to the fact of a prior conviction, but also to “an issue of recidivism which enhances a sentence and is unrelated to an element of a crime.” (People v Thomas (2001) 91 Cal.App.4th 212, 223.) Therefore, “‘the fact of a prior conviction, and related facts . . . may be judicially found at sentencing.” (United States v. Cordero (5th Cir. 2006) 465 F.3d 626, 632-633, fns. omitted.) For instance, the trial court may determine and rely on the defendant’s probation or parole status to impose the upper term. (Cf. United States v. Fagans (2nd Cir. 2005) 406 F.3d 138, 141-142; United States v. Corchado (10th Cir. 2005) 427 F.3d 815, 820 [“the ‘prior conviction’ exception extends to ‘subsidiary findings’ such as whether a defendant was under court supervision when he or she committed a subsequent crime”].) Therefore, the upper term sentence on the count 8 enhancement does not violate Blakely.
Defendant’s poor performance on probation or parole arose from the prior convictions that led to his being placed on probation, is not related to his current offense, and was established by reference to existing court records. There is no question his performance on probation has been poor; he was on probation at the time of the offenses and had previously been found to have violated probation.
In Black, the Supreme Court took a broad view of the scope of the prior conviction exception. (Black II, supra, 41 Cal.4th at pp. 819-820.) Mindful of the California Supreme Court’s directive not to read the recidivism exception to Blakely “too narrowly” (id. at p. 819), we conclude defendant’s poor performance on parole and probation, as documented in the probation report, is a factor which is not subject to the rule of Blakely. Defendant therefore was not entitled to a jury trial on his upper term sentence for assault with a deadly weapon in count 8.
Following the mandate of Black II, we also hold defendant’s consecutive sentences do not violate the Sixth or Fourteenth Amendments.
Recognizing we are bound by Black II, defendant contends the decision was wrongly decided in order to preserve the issue for further review.
The upper term sentence in count 1 is another matter. The aggravating factor upon which the court relied to impose the upper term, defendant’s violent conduct showing a danger to society (Cal. Rules of Court, rule 4.421(b)(1)), is not sufficiently related to recidivism to be excepted from Blakely. Although prior convictions can provide the necessary proof of prior violent conduct (People v. Williams (1980) 103 Cal.App.3d 507, 510-511), this aggravating factor also encompasses conduct not related to a defendant’s prior convictions, and therefore does not come within the recidivism exception. (People v. Velasquez (2007) 152 Cal.App.4th 1503, 1515.)
Nor is the sentence in count 1 exempted from Blakely on the basis of the trial court’s general statement that defendant’s prior convictions, probation status and poor performance on probation applied to some of the counts. The language of Black II strongly suggests the trial court must have relied on the defendant’s prior criminal record as one of its reasons for imposing the upper term and thus “authorizing” the upper term and permitting the trial court to use otherwise constitutionally impermissible factors in reaching its decision. (Black II, supra, 41 Cal.4th at p. 818; People v. Cardenas (2007) 155 Cal.App.4th 1468, 1481-1482 (Cardenas).)
As the Black II court emphasized, “[o]n appellate review, [it is the] trial court’s reasons for its sentencing choice” which are examined. (41 Cal.4th at p. 818, fn. 7; Cardenas, supra, 155 Cal.App.4th at p. 1482.) Indeed, Penal Code section 1170, subdivision (b) and rules 4.406(a) and 4.406(b) of the California Rules of Court require the trial court to state on the record its reasons for imposing the upper term. (Cardenas, supra, at p. 1482.) If the trial court were to rely on defendant’s prior convictions or some other recidivist factor, it should first state its reliance on that factor when pronouncing sentence for that crime. (Ibid.)
Although the trial court and the probation report identified aggravating factors related to defendant’s recidivism, the trial court did not apply those factors to the upper term sentence in count 1. Since this sentence was based on a single factor which is subject to Blakely, the upper term sentence in count 1 violated the Sixth and Fourteenth amendments. We must therefore determine whether the error is harmless.
In People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval), a companion case to Black II, the California Supreme Court stated the test for harmless error (Washington v. Recuenco (2006) 548 U.S. 212 [165 L.Ed.2d 466]) was whether the reviewing court could conclude, “beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury[.]” (Sandoval, supra, at p. 839.)
The People contend the error was harmless because a jury would have found beyond a reasonable doubt the violent conduct and prior conviction aggravating factors. We agree the error was harmless, but for a different reason.
Although the trial court relied on a constitutionally invalid factor to impose an upper term in count 1, the court did rely on two different valid aggravating factors in imposing the upper terms for assault with a deadly weapon and the firearm enhancement in count 8. The court’s identification of valid qualifying aggravating factors in count 8 renders the Blakely error in count 1 harmless.
In People v. Osband (1996) 13 Cal.4th 622 (Osband), the trial court imposed a full consecutive sentence for the defendant’s rape conviction. (Id. at p. 728.) The one factor used to impose the consecutive term, was also one of the three factors used to justify imposition of the upper term for the same offense, and thus constituting an improper dual use of a sentencing factor. (Ibid.)
The California Supreme Court concluded the error was harmless. “In this case, the court could have selected disparate facts from among those it recited to justify the imposition of both a consecutive sentence and the upper term, and on this record we discern no reasonable probability that it would not have done so. Resentencing is not required.” (Osband, supra, 13 Cal.4th at p. 729.)
Although Osband applied a lower standard of harmless error than the harmless beyond a reasonable doubt standard which applies to Blakely error, we see no reason to reach a different result. The trial court had already used facts which were valid under Blakely to find defendant eligible for two separate upper term sentences in count 8. It also found no mitigating factors applied to the upper term sentences in both counts 1 and 8. We are convinced beyond a reasonable doubt that if the trial court knew that Blakely prohibited the use of the violent conduct aggravating factor it would have chosen one of the valid factors it relied on in count 8 and imposed the upper term. Accordingly, we conclude the Blakely error in defendant’s upper term sentence in count 1 was harmless beyond a reasonable doubt.
II
Defendant contends the court should have stayed sentence on either count 5 (felon in possession of a firearm) or count 13 (possession of a loaded firearm by a felon on his person or in a vehicle) pursuant to Penal Code section 654. We agree and stay the sentence on count 13.
Section 654 provides in pertinent part: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.”
The statute proscribes multiple punishment for a single act or for a continuous course of conduct comprising an indivisible transaction. (People v. Akins (1997) 56 Cal.App.4th 331, 338-339.) The divisibility of a course of conduct depends on the intent and objective of the defendant. If all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, a defendant may be found to have harbored a single intent and may be punished only once. (People v. Hicks (1993) 6 Cal.4th 784, 789.) On the other hand, if the evidence discloses that the defendant entertained multiple criminal objectives, which were independent of each other, the trial court may impose punishment for independent violations committed in pursuit of each objective. (People v. Akins, supra, 56 Cal.App.4th at pp. 338-339.)
Penal Code section 12021 prohibits possession of a firearm by “[a]ny person who has been convicted of a felony” while section 12031 prohibits a felon from carrying a firearm on “his or her person or in a vehicle while in any public place . . . .” These crimes are primarily continuing offenses, occurring as long as the felon possesses the firearm in the proscribed manner. It appears from the evidence that defendant’s shotgun was loaded throughout his crime spree. Damian testified that defendant “reloaded” the shotgun by pointing it up in the air and making a sliding up and down motion with his left hand. The shotgun had a shell chambered and additional shells in the magazine when it was discovered in the stolen Accord after the chase. Defendant thus committed both offenses simultaneously during the crime spree. The offenses were part of a single course of continuous conduct with a single objective -- possessing the loaded firearm to facilitate the robbery and attempted carjacking. Accordingly, we conclude the court should have stayed sentence for count 13, possession of a loaded firearm on his person or in a vehicle by a felon, and shall stay the sentence on this count.
We have identified two errors in the abstract. Defendant was convicted of violating Penal Code section 12020, subdivision (a)(1) in count 7 and sentenced accordingly, but the abstract shows defendant being convicted of section 12021 in count 7. The abstract also incorrectly lists defendant’s conviction in count 14, showing a conviction under section 148.9, subdivision (a), when he was in fact convicted under section 148, subdivision (a)(1). We shall order the court to correct these errors in the amended abstract.
DISPOSITION
The judgment is modified by staying service of the sentence imposed on count 13, possession of a loaded firearm on his person or in a vehicle by a felon. Consequently, defendant’s total determinate prison term is 30 years, six months. As modified, the judgment is affirmed. The trial court is directed to amend the abstract of judgment to reflect this modification, and that defendant was convicted of violating Penal Code section 12020, subdivision (a)(1) in count 7 and Penal Code section 148, subdivision (a)(1) in count 14, and to send a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: BUTZ, J., CANTIL-SAKAUYE, J.