Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Martin Larry Herscovitz, Judge. Los Angeles County Super. Ct. No. LA049160
Gloria C. Cohen, 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, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, Tannaz Kouhpainezhad, Deputy Attorney General, for Plaintiff and Respondent.
MOSK, J.
INTRODUCTION
A jury convicted defendant and appellant Alexander Alcaraz (defendant) of two counts of assault with a firearm (Pen. Code, § 245, subd. (a)(2) ). The jury found true the allegation as to both assault convictions that defendant personally used a firearm (§ 12022.5) and as to one of the assault convictions that he personally inflicted great bodily injury (§ 12022.7, subd. (a)). The jury acquitted defendant of one count of attempted murder (§§ 664/187, subd. (a)) and the trial court declared a mistrial as to a second count of attempted murder (§§ 664/187, subd. (a)) when the jury could not reach a verdict. The trial court sentenced defendant to state prison for a term of eighteen years, four months. The trial court dismissed the count on which the jury deadlocked. On appeal, defendant contends that the trial court violated his Fifth, Sixth, and Fourteenth Amendment rights when it sentenced him to the 10-year upper term for the sentence enhancement for personally using a firearm (§ 12022.5) based neither on recidivism nor on facts found true beyond a reasonable doubt by the jury. We affirm.
All statutory citations are to the Penal Code unless otherwise noted.
The record is unclear on the basis for the dismissal. A minute order states both that “On People’s motion remaining count is dismissed in the interest of justice pursuant to Penal Code section 1385,” and that that count was “Dismissed due to plea negotiation.”
BACKGROUND
About 7:00 p.m., on March 29, 2005, Sergio Melara, an admitted member of the Pacoima Criminals gang; defendant, also an admitted member of the Pacoima Criminals gang, whose nickname was “Serio”; Bryon Franco, an admitted gang member; and others congregated outside 7134 Valjean Avenue in Van Nuys. Melara told defendant “that he needed to chill out because he was bringing too much attention to the neighborhood.” Melara was referring to attention from the police and neighbors.
Melara was a reluctant witness. The facts in this case were presented largely through testimony from Los Angeles Police Department Officers Leticia Thompson and Nicholas Nemecek about interviews they conducted of Melara.
Defendant appeared angry and left. He returned 10 minutes later, armed with a chrome revolver. Defendant put his revolver against Melara’s head. When defendant’s attention was diverted to Franco, Melara attempted to wrest the gun from defendant. Melara was unsuccessful and defendant shot the gun twice at Melara and once at Franco. Defendant then turned the gun back towards Melara and fired two more shots. Melara was struck twice—once in the right abdomen, and once in the right hip area. An ambulance transported Melara to the hospital. Melara testified that he was treated at the hospital for two gunshot wounds. The police did not recover the revolver, casings (which would have remained in the revolver), or bullets (for both shots, Melara suffered entry and exit wounds).
Officer Thompson testified that Melara told her that “a shot had gone off” as Melara and defendant struggled for the gun, defendant shot Melara twice, and defendant fired one shot at Franco. Officer Nemecek testified that Melara told him that five shots were fired – two at Melara, one at Franco, and two at Melara.
The day after the shooting, Officer Nemecek showed Melara a “six-pack” photographic lineup that contained defendant’s photograph. Melara positively identified defendant from the six-pack as the person who had shot him.
Defendant did not testify in his own behalf. His mother testified that defendant was home with her at the time of the shooting.
DISCUSSION
Defendant contends that the trial court erred when it enhanced the sentence for his conviction for assaulting Melara with a firearm (§ 245, subd. (a)(2)) with a 10-year upper term for personally using a firearm (§ 12022.5) because the trial court selected the upper term based on its own factual findings and not on recidivism or on facts found true beyond a reasonable doubt by the jury. We hold that any error was harmless beyond a reasonable doubt.
In Cunningham v. California (2007) 539 U.S. ___ [166 L.Ed.2d 856, 127 S.Ct. 856] the United States Supreme Court held that California’s determinate sentencing law violated a defendant’s federal constitutional right to a jury trial under the Sixth and Fourteenth Amendments by providing that the trial judge and not the jury was to make the factual findings that rendered a defendant eligible for an upper term sentence. (Id. at 871; People v. Black (2007) 41 Cal.4th 799, 805, 808-809; People v. Sandoval (2007) 41 Cal.4th 825, 831-832.) We review Cunningham error for prejudice under the harmless beyond a reasonable doubt standard for federal constitutional error. (People v. Sandoval, supra, 41 Cal.4th at p. 839.) If we 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, the Sixth Amendment error properly may be found harmless.” (Ibid.)
The trial court based its upper term sentence for the section 12022.5 personal use of a firearm enhancement on its findings that “this is an aggravated use because it was the firing of multiple shots, two of which actually hit Mr. Melara, which is way over the minimum required.” (See Cal. Rules of Court, rule 4.421(a)(2) [aggravating “factors relating to the crime, whether or not charged or chargeable as enhancements include that: . . . [t]he defendant was armed with or used a weapon at the time of the commission of the crime”].) The trial court found “no factors in mitigation insofar as the use is concerned on count three.”
Assuming that the trial court erred under Cunningham v. California, supra, 127 S.Ct. at page 871, in basing its selection of the upper term on its own factual findings and not on facts found true by the jury beyond a reasonable doubt, we hold that any such error was harmless beyond a reasonable doubt. The jury found that defendant assaulted Melara with a firearm (§ 245, subd. (a)(2)), that he personally used the firearm in the assault (§ 12022.5), and that he personally inflicted great bodily injury on Melara in the assault (§ 12022.7, subd. (a)). The evidence shows that defendant shot the firearm multiple times in connection with the assault of Melara and that two of the bullets hit Melara. Defendant had every reason to dispute the evidence that he personally fired multiple shots in connection with the assault of Melara and that any bullet he fired struck Melara – had he disproved such evidence he would have prevailed on the substantive assault offense and on the sentence enhancements. It is clear beyond a reasonable doubt that the jury unquestionably would have found that defendant fired multiple shots in connection with the assault of Melara and that Melara was struck by two of the bullets that defendant fired. (People v. Sandoval, supra, 41 Cal.4th at p. 839.)
In addition to claiming that any Cunningham error was harmless, respondent contends that defendant should be estopped from challenging his sentence because it was part of a post-trial negotiated agreement, any error was invited by defense counsel who invited the trial court to impose the upper term on the enhancement, and defendant forfeited his claim by failing to object to the upper term in the trial court. In light of our holding that any error was harmless, we need not address these contentions.
DISPOSITION
The judgment is affirmed.
We concur: ARMSTRONG, Acting P. J., KRIEGLER, J.