Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Larry S. Knupp, Judge. Los Angeles County Super. Ct. No.VA093282
Roderick W. Leonard, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Michael R. Johnsen and Deborah J. Chuang, Deputy Attorneys General, for Plaintiff and Respondent.
KLEIN, P. J.
John R. Ramirez (Ramirez) appeals the judgment entered following a jury trial which resulted in his conviction of second degree robbery (Pen. Code, § 211), during which he personally used a firearm (§ 12022.53, subd. (b)), and attempted second degree robbery (§§ 664/211), during which he was armed with a firearm (§ 12022, subd. (a)(1)). The trial court sentenced Ramirez to a term of 15 years, eight months in prison.
All further statutory references are to the Penal Code unless otherwise indicated.
Ramirez contends the trial court violated the mandate of Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham) and his Sixth Amendment right to a jury trial by imposing the upper term of five years in prison for his conviction of second degree robbery based on aggravating factors not found by a jury beyond a reasonable doubt. We conclude, although the trial court failed to comply with the rule set forth in Cunningham, the error was harmless beyond a reasonable doubt. Accordingly, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
1. Relevant evidence.
Viewed in accordance with the usual rules of appellate review (People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Johnston (2003) 113 Cal.App.4th 1299, 1303-1304), the evidence established that on the evening of October 27, 2005, Hieu Luu (Luu) and his roommate, Charles Powell (Powell), were at the Commerce Casino on East Telegraph Road in the city of Commerce. Luu, a professional gambler who plays poker almost every day, was playing poker while Powell watched. Luu had been at the casino almost the entire day and had won a significant amount of money. When he left the casino at approximately 11:30 p.m., Luu had in his possession two $5,000 chips, four $1,000 chips and approximately $5,700 in cash.
Since Powell had met Luu at the casino, they had driven there in separate cars. Luu got into his car in the VIP parking lot and was driving toward the exit when he noticed a small black car pull out of a parking space. As Luu drove by, the driver and the passenger in the car stared at Luu. The black car then pulled up behind Luu and followed him. At one point the black car drove through a red signal light to keep up. At another intersection, Luu saw that the black car had pulled up behind his roommate’s car, which was stopped immediately next to Luu’s car. Luu noted the black car’s side windows were tinted and its front lights were out.
Luu, with Powell driving not far behind, took the 5 freeway to the 605 freeway, the 605 freeway to the 91 freeway, then exited at Paramount. While driving, Luu had been on the telephone to another roommate telling the roommate about his winnings for the day and, for a few moments, had stopped paying attention to the black car. When he reached his home, Luu pulled his car into the driveway and parked. Powell arrived shortly after Luu and parked his car in front of the house.
As Luu and Powell each got out of their cars and began walking toward the house, Luu noticed the black car drive slowly by then stop. Luu became frightened and ran toward his car. Just as he got inside the car and closed the door, the passenger from the black car, who was later identified as Ramirez, ran up to Luu’s car and pointed a gun at Luu’s head through the driver’s side window. Luu, who was “scared” and “thought [he] was dead, ” followed Ramirez’s instructions when Ramirez told him to get out of the car and put his hands up in the air. When Ramirez told Luu to “give [him] the money, ” Luu reached into his pocket, took out the cash and handed it to Ramirez. However, Ramirez was not satisfied. He told Luu, “I know you have more money” and instructed Luu to “give [him] the chips.” Ramirez then patted down Luu to be certain Luu had given Ramirez everything.
When Powell saw Ramirez running toward Luu, Powell ran toward the front door of the house in an attempt to get inside. However, Powell could not get his keys out of his pocket fast enough and Ramirez’s companion, the driver of the black car, ran up behind Powell, pointed a gun at his head and told him to get down on his knees and empty his pockets. Powell placed his keys and cell phone on the ground. When Ramirez’s companion asked Powell if he had a wallet, Powell told him he did not. Ramirez’s companion then said, “[A]re you being funny? Do you think this is funny? I’ll shoot you in the fucking head. I’ll blow your fucking head.”
At some point Luu glanced toward the front porch and saw Powell on his knees with his hands up and the driver of the black car holding a gun to Powell’s head. The man holding Powell at gunpoint yelled to Ramirez to check Luu’s car. While Luu stood by with his hands in the air, Ramirez went inside Luu’s car and checked under the console.
Ramirez and his companion, while continuing to point their guns at Luu and Powell, told Luu and Powell not to move, “[not to] do anything” and not to call the police, then ran to their car and drove off. As he watched the car drive away, Luu noted it had no license plates.
After Ramirez and his cohort had left the area, Powell used his cell phone to telephone the police. Officers arrived approximately two to three minutes later.
2. Sentencing Proceedings.
At sentencing proceedings held on September 26, 2006, the prosecutor argued the trial court should impose the maximum sentence possible due to the violent nature of the crime, the planning and sophistication with which the crime had been committed and the large amount of money taken.
Defense counsel asserted mitigating factors existed: this was 25-year-old Ramirez’s first felony conviction and he is addicted to both cocaine and “speed.” Counsel argued it was Ramirez’s “drug addiction [which] led [to] his involvement in this case.”
The trial court imposed the upper term of five years in state prison for Ramirez’s conviction of second degree robbery as alleged in count one. In support of its sentencing choice, the court stated, “The circumstances in aggravation are that the crime did involve the threat of great bodily harm. The manner in which the crime was carried out, it does indicate planning and sophistication or professionalism. This was clearly a planned crime. The two perpetrators of the robbery followed the victims both in the casino and then back home again. It involved the actual taking of great monetary value[, ] a minimum of $19,000. They stick guns in the people’s faces. It’s clearly an extremely violent crime. [Ramirez] went from misdemeanor to high grade felonies in a great big hurry.” The trial court found no circumstances in mitigation.
As to the finding Ramirez was personally armed with a firearm during the robbery, the trial court imposed the ten-year enhancement provided for in section 12022.53, subdivision (b). For Ramirez’s conviction of attempted robbery as alleged in count two, the trial court imposed a consecutive sentence of one-third the middle term, or eight months. In total, the trial court sentenced Ramirez to 15 years, eight months in prison.
CONTENTION
Relying on the United States Supreme Court’s decision in Cunningham, Ramirez contends the trial court violated his Sixth Amendment right to a jury trial when, without the jury having found the factors in aggravation beyond a reasonable doubt, it imposed the upper term of five years in prison for his conviction of second degree robbery.
DISCUSSION
1. Imposition of the upper term for Ramirez’s conviction of second degree robbery violated the mandate of Cunningham.
In Cunningham, the court, relying on its decisions in Apprendi v. New Jersey (2000) 530 U.S. 466 and Blakely v. Washington (2004) 542 U.S. 296, determined “the Federal Constitution’s jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant.” (Cunningham v. California, supra, 127 S.Ct. at p. 860.) Further, “ ‘the relevant “statutory maximum” ’ . . . ‘is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.’ ” (Ibid., original italics.)
Here, none of the factors relied on by the trial court to impose the upper term involved a prior conviction, were found by a jury or admitted by Ramirez. Accordingly, imposition of the upper term did not conform to the mandate of Cunningham.
2. Ramirez did not waive his right to challenge imposition of the upper term on the ground it violated Cunningham.
The People contend Ramirez waived any right to challenge the upper term sentence by failing to object to its imposition in the trial court. The contention is without merit.
In People v. Sandoval (July 19, 2007, S148917) ___Cal.4th___ [2007 DJDAR 11051, 11054, fn. 4], citing People v. Welch (1993) 5 Cal.4th 228, 237-238, the court indicated an objection in the trial court is not required if the objection would have been futile. At the time Ramirez was sentenced, the California Supreme Court’s decision in People v. Black (2005) 35 Cal.4th 1238 (Black I) governed. In Black I the court determined the judicial fact finding which occurred when a judge exercised discretion to impose an upper term sentence did not implicate a defendant’s right to a jury trial. (Id. at p. 1254.) Since the trial court was bound by the Black I decision (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 456), trial counsel cannot be faulted for failing to have objected to the imposition of the upper term on the ground the jury should have found the aggravating factors beyond a reasonable doubt. (People v. Sandoval, supra, ___Cal.4th___ [2007 DJDAR 11051, 11054, fn. 4].) Such an objection would have been futile.
3. The Cunningham error was harmless beyond a reasonable doubt.
The People assert the Cunningham error was harmless under the “harmless beyond a reasonable doubt” standard set forth in Chapman v. California (1967) 386 U.S. 18, 24 (Chapman). We agree.
In Washington v. Recuenco (2006) 548 U.S.___ [126 S.Ct. 2546, 2551], the court indicated it had “repeatedly recognized that the commission of a constitutional error at trial alone does not entitle a defendant to automatic reversal. Instead, ‘ “most constitutional errors can be harmless.” ’ [Citations.] ‘ “[I]f the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other [constitutional] errors that may have occurred are subject to harmless-error analysis.” ’ [Citations.] Only in rare cases has the [United States Supreme] Court held that an error is structural, and thus requires automatic reversal. In such cases, the error ‘necessarily render[s] a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence.’ [Citation.].” (Footnote omitted.) After further discussion, the court concluded “[f]ailure to submit a sentencing factor to the jury . . . is not structural error[, ]” but is subject to review under the Chapman standard. (Id. at p. 2553, see also People v. Sengpadychith (2001) 26 Cal.4th 316, 327 [The failure to instruct on an element of a gang enhancement which increased the punishment for the underlying crime is federal constitutional error reviewable under the harmless error standard of Chapman.] So too, in People v. Sandoval, supra, ___Cal.4th___ [2007 DJDAR 11051, 11055], the court determined that, should the court 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[, ]” any error in failing to do so was harmless.
In the present case, the trial court found three factors in aggravation: (1) the crime involved the threat of great bodily harm, (2) the manner in which the crime was carried out indicated planning, sophistication or professionalism, and (3) the crime involved the taking of property of great monetary value. (See Cal. Rules of Court, rule 4.421(a)(1), (a)(8) & (a)(9).) On the record before us, we conclude beyond a reasonable doubt that, had they been submitted to the jury, it would have found each of these factors true beyond a reasonable doubt.
Initially, there is no question the crime involved the threat of great bodily harm. It is undisputed that, while committing the robbery and attempted robbery, Ramirez and his accomplice held guns to the victims’s heads.
It could be argued Ramirez’s personal use of a handgun during the robbery and the fact he, by pointing the gun at Luu’s head, threatened Luu with great bodily harm amounts to a duplicative use of the fact Ramirez used a gun. “A fact underlying an enhancement cannot do double duty; it cannot be used to impose an upper term sentence and, on top of that, an enhanced term. [Citation.]” (Cunningham v. California, supra, 127 S.Ct. at p. 863.) However, even if the trial court’s reliance on Ramirez’s gun use amounts to dual use of that fact, two valid factors in aggravation remain. “[A]s long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, [including Cunningham, ] any additional fact finding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to a jury trial.” (People v. Black (July 19, 2007, S126182) ___Cal.4th___ [2007 DJDAR 11041, 11044-11045]; see also People v. Osband (1996) 13 Cal.4th 622, 730 [A single factor in aggravation will suffice to support imposition of the upper term.].)
In addition, the evidence overwhelmingly indicates the crimes were carried out with planning, sophistication and professionalism. Since Ramirez knew Luu had in his possession not only cash, but chips, it is apparent Ramirez had watched Luu at the casino. Ramirez and his accomplice, who had armed themselves with handguns and were driving a car with no license plates, tinted windows and its headlights off, then followed Luu as he drove from the casino to his home. Once Luu and Ramirez were more vulnerable in that they had gotten out of their cars and were walking toward the house, Ramirez, with his gun drawn, ran toward Luu while his accomplice, who had also pulled out his gun, ran toward Powell. While his accomplice held Powell at gunpoint, Ramirez held a gun to Luu’s head and robbed him.
Finally, the evidence clearly establishes the crime involved the taking of property of great monetary value. Ramirez took from Luu over $19,000 in cash and casino chips. There is no doubt a jury would have found this to be a substantial amount of money and property.
DISPOSITION
The judgment is affirmed.
We concur: KITCHING, J., ALDRICH, J.