Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEALS from judgments of the Superior Court of Los Angeles County Super. Ct. No. KA071813, Bruce F. Marrs, Judge. Affirmed in part, vacated in part, and remanded with directions as to appellant Edgar Moises Armenta. Affirmed as to appellant Johnny Armenta.
Marylou Hillberg, under appointment by the Court of Appeal, for Defendant and Appellant Edgar Moises Armenta.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant Johnny Armenta.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels, Susan Sullivan Pithey and J. Michael Lehmann, Deputy Attorneys General, for Plaintiff and Respondent.
KITCHING, J.
Edgar Moises Armenta and Johnny Armenta appeal from judgments entered following the convictions by jury of Edgar Moises Armenta on count 1 – possession of a controlled substance for sale (Health & Saf. Code, § 11378) personally armed with a firearm (Pen. Code, § 12022, subd. (c)), and count 2 – possession of a controlled substance with a firearm (Health & Saf. Code, § 11370.1, subd. (a)), and the conviction by jury of Johnny Armenta on count 1 – possession of a controlled substance for sale (Health & Saf. Code, § 11378) with a court finding he suffered a prior felony conviction (Pen. Code, § 667, subd. (d)). The court sentenced Edgar Moises Armenta (Edgar) and Johnny Armenta (Johnny) to prison for eight years and six years, respectively. Edgar claims the trial court committed trial and sentencing errors. Johnny claims the trial court committed sentencing errors. As to Edgar, we affirm the judgment in part, vacate it in part, and remand with directions. As to Johnny, we affirm the judgment.
FACTUAL SUMMARY
Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993)
6 Cal.4th 1199, 1206), the evidence, the sufficiency of which is undisputed, established that about 2:30 p.m. on August 3, 2005, Los Angeles County Sheriff’s deputies and El Monte Police (collectively police) executed a search warrant at a single family residence located at 1002 Vineland in La Puente. The residence had a single-car garage and, when police arrived, the garage door was open. Appellants were in the garage, a third man was at the garage threshold, and a fourth was just outside the garage.
The garage did not contain a car, but contained a desk located towards the rear of the garage. The desk had a center drawer and drawers on either side of the center drawer. The desk was situated so the drawers faced towards the rear of the garage. Edgar Armenta (Edgar) was standing by the open center drawer of the desk. Edgar was looking down at the desk, and was the only person who could have touched it if he had held out his hand.
Police detained Edgar and found a fully loaded .38-caliber revolver in his right front pocket and plastic baggies in his left front pocket. A car seat sofa was about four feet behind the desk, and a loaded 12-gauge shotgun was on top of the sofa. Edgar had been standing between the desk and sofa.
When police arrived, Johnny was standing just inside the garage door. A cylindrical speaker was about two to three feet from Johnny. The speaker was three and one-half feet tall, and a loaded Sten machine gun was on top of the speaker. The machine gun contained twenty-five 9-millimeter bullets, some of which were hollow point bullets. The machine gun was within Johnny’s reach. Another person was standing just outside the garage and not as close to the machine gun as Johnny was. The machine gun had a removable stock.
Police found a digital scale and a concealable key box on the top desk drawer. The drawer had been pulled out and was being used as a table top. Edgar had been standing next to the drawer. The box contained three baggies inside of which were 6.72 grams net weight of a powder containing crystallized methamphetamine. Two full boxes of 12-gauge shotgun shells were on the desk.
The residence’s northwest bedroom belonged to Edgar. A closed circuit television inside Edgar’s bedroom was monitoring the front yard and street. Closed circuit cameras were located above the garage, above Edgar’s bedroom window, and above Johnny’s bedroom window. One such camera above Edgar’s bedroom window was an infrared camera.
Police found in Edgar’s bedroom pay-and-owe sheets, and blue baggies packaged inside clear baggies. The baggies were the same kind as those found in Edgar’s left front pocket. Pay-and-owe sheets recorded drugs given to individuals and money owed for same. The person to whom drugs were given might divide them into smaller amounts and sell them. Many of the transactions on the sheets were small narcotics sales such as dime baggies. Dime baggies would fit in the blue baggies found in Edgar’s bedroom and pocket, and such baggies were commonly used to sell methamphetamine. Police also found in Edgar’s bedroom six .38-caliber bullets under a mattress, and one .22-caliber bullet. Edgar did not appear to be under the influence of a narcotic, nor did police find drug use paraphernalia on Edgar’s person, in his bedroom, or in the garage.
The southwest bedroom belonged to Johnny. His bedroom contained a closed circuit television monitoring the front of the garage, the yard, and the street. The removable stock to the Sten machine gun, plus an additional magazine for the machine gun, were in Johnny’s bedroom. The magazine contained 9-millimeter bullets. The bedroom also contained pay-and-owe sheets in a notebook and two two-way radios.
Johnny’s bedroom also contained a safe. The safe contained a bag inside of which were 2.04 grams net weight of a powder containing crystal methamphetamine. The safe also contained $1,626 in currency, two scales, a palm pilot, and various identification of Johnny. The currency was separated into two piles, each bound by rubber bands. One pile contained only $20 bills. The other pile contained other denominations. The bedrooms of Edgar and Johnny were in the front of the house and faced the street.
A narcotics detective testified as follows. Crystal methamphetamine sold for between $100 to $120 per gram, depending upon its purity. The total of 8.76 grams net weight of powder containing crystal methamphetamine recovered from the garage and safe could produce about 438 doses. A couple of doses sold for $20.
Based on various facts, the detective opined at trial that the 6.72 grams net weight of methamphetamine were possessed for sale. These facts included the quantity of narcotics, which was substantially more than what was commonly used for personal use, the fact the narcotics could be easily divided and packaged into smaller baggies, the fact there were small plastic baggies in Edgar’s pocket and bedroom, and the fact that such baggies were commonly used for packaging crystal methamphetamine. These facts also included the scale found next to the drugs recovered in the garage, the gun found on Edgar, and the machine gun within Johnny’s reach.
Moreover, drug dealers commonly possessed weapons to protect their cache of drugs, and the dealers’ revenues from drug sales. The shotgun had been strategically placed behind the men so they would have a weapon readily available to repel a rival drug dealer or a robber. Additional facts were the pay-and-owe sheets in Edgar’s bedroom and the surveillance equipment.
The detective also opined based on various facts that the 2.04 grams net weight of a powder containing crystal methamphetamine were possessed for sale. These facts included the quantity, which was substantially more than what was commonly used for personal use, the two scales, the $1,626 in currency (especially the $20 denominations), and the fact that Johnny was unemployed.
Additional factors were the palm pilot, the surveillance equipment that would monitor potential drug buyers, drug dealers, rival drug dealers, and gangsters. Other facts were that Johnny had the stock to the Sten machine gun, and drug dealers commonly possessed weapons to protect their cache of drugs and money. The detective also found three laptop computers. Drug dealers commonly bartered such computers and palm pilots for narcotics. No drug use paraphernalia was found in Johnny’s bedroom. Edgar presented no defense evidence.
CONTENTIONS
Edgar claims (1) the trial court erred by failing to give CALJIC No. 2.02, (2) the trial court erred by giving CALJIC No. 17.15, and (3) the trial court’s imposition of upper terms on count 1 and its enhancement violated his rights to a jury trial and to proof beyond a reasonable doubt. Johnny claims (1) imposition of the upper term on count 1 violated his rights to a jury trial and to proof beyond a reasonable doubt and (2) the fact the jury was unable to reach verdicts as to certain counts alleging he possessed a machine gun meant the trial court could not rely on that possession as an aggravating factor.
DISCUSSION
1. The Trial Did Not Err by Failing to Give CALJIC No. 2.02.
a. Pertinent Facts.
The court proposed to give CALJIC No. 2.01 but did not propose to give CALJIC No. 2.02. Edgar asked why the court did not propose to give CALJIC No. 2.02 since, inter alia, count 1 required specific intent to sell. The court indicated it was not giving CALJIC No. 2.02 because the parties had not stipulated as to who actually possessed which weapon, who actually possessed which item of narcotics, or for what purpose they were possessed. The court stated “possession and the other items are going to have to be shown by circumstantial evidence, in addition to the intent with which the acts are done.” The court gave CALJIC No. 2.01 to the jury but not CALJIC No. 2.02. The court also instructed on the elements of count 1 using CALJIC No. 12.01, and gave CALJIC No. 2.90 on the presumption of innocence and proof beyond a reasonable doubt. The court also instructed on possession of a controlled substance as a lesser offense of count 1.
CALJIC No. 2.01 states, “However, a finding of guilt as to any crime may not be based on circumstantial evidence unless the proved circumstances are not only (1) consistent with the theory that the defendant is guilty of the crime, but (2) cannot be reconciled with any other rational conclusion. [¶] Further, each fact which is essential to complete a set of circumstances necessary to establish the defendant’s guilt must be proved beyond a reasonable doubt. In other words, before an inference essential to establish guilt may be found to have been proved beyond a reasonable doubt, each fact or circumstance on which the inference necessarily rests must be proved beyond a reasonable doubt. [¶] Also, if the circumstantial evidence [as to any particular count] permits two reasonable interpretations, one of which points to the defendant’s guilt and the other to [his/her] innocence, you must adopt that interpretation that points to the defendant’s innocence, and reject that interpretation that points to [his/her] guilt. [¶] If, on the other hand, one interpretation of this evidence appears to you to be reasonable and the other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the unreasonable.”
CALJIC No. 2.02 (1999 revision) states, “‘The [specific intent] [or] [and] [mental state] with which an act is done may be shown by the circumstances surrounding the commission of the act. However, you may not [find the defendant guilty of the crime charged [in Count[s] ___, ___, ___ and ____], [or] [the crime[s] of ___, ___, ___, which [is a] [are] lesser crime[s]],] [or] [find the allegation _____ to be true,] unless the proved circumstances are not only (1) consistent with the theory that the defendant had the required [specific intent] [or] [and] [mental state] but (2) cannot be reconciled with any other rational conclusion. [¶] Also, if the evidence as to [any] [specific intent] [or] [mental state] permits two reasonable interpretations, one of which points to the existence of the [specific intent] [or] [mental state] and the other to its absence, you must adopt that interpretation which points to its absence. If, on the other hand, one interpretation of the evidence as to the [specific intent] [or] [mental state] appears to you to be reasonable and the other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the unreasonable.”
CALJIC No. 12.01 states, “[Defendant is accused [in Count 1] of having committed the crime of illegal possession for sale of a controlled substance, a violation of Section 11378 of the Health and Safety Code.] [¶] Every person who [possesses] for sale Methamphetamine, a controlled substance, is guilty of a violation of Health and Safety Code Section 11378, a crime. [¶] There are two kinds of possession: actual possession and constructive possession. [¶] ‘Actual possession’ requires that a person knowingly exercise direct physical control over a thing. [¶] ‘Constructive possession’ does not require actual possession but does require that a person knowingly exercise control over or right to control a thing, either directly or through another person or persons. [¶] [One person may have possession alone, or two or more persons together may share actual or constructive possession.] [¶] [‘Sale’ means any exchange of Methamphetamine.] [¶] In order to prove this crime, each of the following elements must be proved: [¶] 1. A person [exercised control over or the right to control], an amount of Methamphetamine, a controlled substance; [¶] 2. That person knew of its presence; [¶] 3. That person knew of its nature as a controlled substance; [¶] 4. The substance was in an amount sufficient to be used for sale or consumption as a controlled substance; and [¶] 5. That person [possessed] the controlled substance with the specific intent to sell the same.”
During later jury argument, Edgar argued as follows. Edgar lawfully had a gun in his pocket, but he neither possessed nor sold methamphetamine. The People had to prove each element of each offense beyond a reasonable doubt, Edgar’s “only connection with this case” was he happened to be in the garage where narcotics were found, and the People had to prove he possessed methamphetamine. Proof of such possession required proof of his dominion and control. Johnny was the person who possessed and sold the methamphetamine, pay-and-owe sheets indicated Johnny was selling methamphetamine to Edgar, and Edgar personally used it.
b. Analysis.
Edgar claims that whether he had a specific intent to sell or whether the narcotics were intended merely for personal use was the primary issue in this case and, therefore, the trial court erred by failing to give CALJIC No. 2.02. We disagree. We note at the outset that Edgar’s claim is irrelevant to his conviction on count 2, since intent to sell is not an element of the offense at issue in that count.
Moreover, simply put, CALJIC No. 2.01 substantively did everything that CALJIC No. 2.02 would have done. It is true that CALJIC No. 2.02 would have instructed the jury on the issue of the sufficiency of the evidence as that issue related to, inter alia, the issue of specific intent to sell, and if that instruction had been given the jury could have considered in light of that instruction Edgar’s claim that the narcotics were intended merely for personal use.
However, CALJIC No. 2.01 instructed the jury on the issue of the sufficiency of the evidence as that issue related not only to the issue of specific intent to sell but to additional issues. Insofar as specific intent to sell was at issue, the jury was able to consider, in light of CALJIC No. 2.01, Edgar’s claim that the narcotics were intended merely for personal use. Moreover, the additional issues included possession as requiring exercise of control or right to control, knowledge of the nature and presence of a controlled substance, sufficiency of the amount of the controlled substance, and identity. Each of these matters was placed in issue by Edgar’s plea of not guilty that preceded his jury trial. (Pen. Code, § 1019.)
Before the court gave CALJIC No. 2.01, Edgar took no action narrowing the triable issues as to count 1, all of which required proof by circumstantial evidence. Even after the court gave that instruction, Edgar, during jury argument, effectively disputed each element of count 1. Assuming Edgar asked the court to give CALJIC No. 2.02, the court did not err by failing or refusing to give it. (People v. Marshall (1996) 13 Cal.4th 799, 849; cf. People v. Honig (1996) 48 Cal.App.4th 289, 341.)
Finally, the jury, instructed on possession of a controlled substance as a lesser offense of count 1, rejected convicting Edgar of the lesser offense in favor of convicting him of the greater offense, and therefore, necessarily rejected the notion that the narcotics were possessed merely for personal use. The claimed instructional error was harmless. (Cf. People v. Watson (1956) 46 Cal.2d 818, 836; Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705].)
2. The Trial Court Did Not Err in Its Instruction on the Armed Enhancement.
a. Pertinent Facts.
During the People’s case-in-chief and outside the presence of the jury, the trial court commented that, although the court had not had a chance to read it, a recent appellate case appeared to have criticized CALJIC No. 17.15. During its final charge to the jury, the court gave a modified CALJIC No. 17.16.1 to the jury. Later, outside the presence of the jury, the court indicated it had read the appellate case, it was factually distinguishable, and, for that reason, the court had not discussed it during discussions concerning jury instructions.
(People v. Pitto (Nov. 14, 2005, A105164) review granted and opn. ordered nonpub. Feb. 8, 2006, S139609.)
Although the trial court referred, and Edgar refers, to CALJIC No. 17.15 as the pertinent instruction, that instruction is inapplicable to the present case since that instruction pertains to enhancements under Penal Code section 12022, subdivision (a)(1) and (2), and not the similar subdivision (c) enhancement at issue here.
The modified CALJIC No. 17.16.1 instruction stated, “It is alleged in [Count[s] 1] that in the commission of the felony therein described, defendant[s] [Edgar Armenta, . . .] [was] personally armed with a firearm. [¶] If you find a defendant guilty of the crime[s] thus charged, you must then determine whether the defendant was personally armed with a firearm at the time of the commission or attempted commission of the crime[s]. [¶] The term ‘armed with a firearm’ means knowingly to carry a firearm [or have it available] for offensive or defensive use. [¶] The word ‘firearm’ includes a pistol, revolver, shotgun, [or] rifle [or any other device, designed to be used as a weapon from which is expelled through a barrel a projectile by the force of any explosion or other form of combustion.] [The ‘firearm’ need not be loaded or operable.] [¶] The People have the burden of proving the truth of this allegation. If you have a reasonable doubt that it is true, you must find it to be not true. [¶] Include [sic] a special finding on that question using a form that will be supplied for that purpose.”
b. Analysis.
Edgar claims the trial court’s instruction concerning the armed enhancement pertaining to count 1 was erroneous because it did not require a facilitative nexus between the narcotics possession and arming. We conclude otherwise.
1) The Giving of the Instruction Was Not Error.
The present case involves a Penal Code section 12022, subdivision (c) enhancement. People v. Bland (1995) 10 Cal.4th 991 (Bland), dealt with the very similar Penal Code section 12022, subdivision (a)(2) enhancement, which added a three-year prison term when a defendant was “armed with a firearm in the commission of a felony” and the firearm was of a specified type.
Bland stated, “Section 12022, subdivision (a)(2) increases by three years the prison term of any person ‘armed’ with an assault rifle ‘in the commission or attempted commission of a felony.’ As we explained earlier, the term ‘armed’ in this statute means simply that the defendant had the prohibited weapon available for offensive or defensive use. And, as discussed previously, in People v. Fierro [(1991)] 1 Cal.4th 173, 225-226, this court concluded that the statutory language ‘in the commission of a felony’ meant any time during and in furtherance of the felony. Therefore, by its terms, subdivision (a)(2)’s three-year sentence enhancement for being ‘armed’ with an assault weapon applies whenever during the commission of the underlying felony the defendant had an assault weapon available for use in the furtherance of that felony. ([Pen. Code,] § 12022, subd. (a)(2).) Because, as we have pointed out, drug possession is a crime that continues throughout the time that the defendant has possession of the unlawful drugs, it follows that subdivision (a)(2)’s three-year sentence enhancement would apply to a defendant who has been found guilty of felonious drug possession and who, at some point during the illegal drug possession, had an assault weapon available for use in furtherance of the drug offense. [Fn. omitted.]” (Bland, supra, 10 Cal.4th at p. 1001, italics added except the first.)
Accordingly, Bland later observed, “by specifying that the added penalty applies only if the defendant is armed with a firearm ‘in the commission’ of the felony offense, section 12022 implicitly requires both that the ‘arming’ take place during the underlying crime and that it have some ‘facilitative nexus’ to that offense.” (Bland, supra, 10 Cal.4th at p. 1002, first italics added.) Bland relied on this analysis to conclude that a defendant convicted of a possessory drug offense was subject to the arming enhancement when the defendant possessed the drugs and gun, kept them together, but was not present when police seized them from the defendant’s house. (Id. at p. 995.)
In the present case, the modified CALJIC No. 17.16.1 instruction expressly told the jury that count 1 alleged that “in the commission of the felony” (italics added) therein described, Edgar was personally armed with a firearm. In light of Bland, the phrase “in the commission of the felony” meant any time during, and in furtherance of,the felony. That is, the phrase “in the commission of the felony” implied that the arming had a facilitative nexus to the offense. Moreover, the instruction stated the People had the burden of proving the truth of “this allegation,” that is, the allegation in count 1 that “in the commission of the felony” (italics added) therein described, Edgar was personally armed with a firearm. Further, the instruction indicated that if the jury had a reasonable doubt that the allegation was true, the jury was required to find the allegation not true.
It is true the instruction also indicated the jury had to determine whether Edgar was personally armed with a firearm “at the time of the commission” (italics added) or attempted commission of the crime. This temporal reference, by itself, did not imply the requisite facilitative nexus. If the instruction had referred only to the phrase “at the time of the commission” and (1) had not expressly referred to the People’s burden to prove the allegation in count 1 that, “in the commission” of the felony, Edgar was personally armed with a firearm and (2) had not instructed the jury to find not true that allegation if the jury had a reasonable doubt as to the truth of the allegation, we might have concluded the instruction erroneously omitted reference to a facilitative nexus. However, we are not presented with such an instruction here. As mentioned, in light of Bland, the modified CALJIC No. 17.16.1 instruction implied a facilitative nexus.
Because the language of the modified CALJIC No. 17.16.1 implied a facilitative nexus between the offense and arming, the giving of the instruction was not error. What Edgar is really arguing is that, in light of the instruction’s reference to the phrase “at the time of the commission,” the instruction should have been further modified by the addition of clarifying or amplifying language indicating that a temporal connection alone was insufficient and a facilitative nexus was required.
“It is of course true that a defendant need not object to preserve a challenge to an instruction that incorrectly states the law and affects his or her substantial rights. (§ 1259; People v. Hillhouse [(2002)] 27 Cal.4th [469,] 505-506; People v. Smithey (1999) 20 Cal.4th 936, 976, fn. 7.) On the other hand, ‘“Generally, a party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.” [Citation.]’ [Citations.]” (People v. Palmer (2005) 133 Cal.App.4th 1141, 1156, italics added.) Accordingly, notwithstanding Edgar’s citation to Penal Code section 1259, he waived the issue of whether the instruction should have been further modified by the addition of clarifying or amplifying language indicating that a facilitative nexus was required.
2) Any Error in Giving the Instruction Was Not Prejudicial.
Moreover, even if the modified CALJIC No. 17.16.1 erroneously omitted reference to a facilitative nexus, reversal of the judgment is not required. There is no dispute as to the sufficiency of the evidence or that, in particular, there was sufficient evidence that (1) Edgar possessed methamphetamine for sale and was personally armed with a firearm and (2) there was a facilitative nexus between the offense and the arming. Edgar admitted he had a gun on his person. The jury reasonably could have concluded he jointly possessed the shotgun and Sten machine gun. A narcotics detective testified that drug dealers commonly possessed weapons to protect their cache of drugs, and revenue from drug sales. The shotgun in the garage had been strategically placed so the men would have a weapon readily available to repel a rival drug dealer or a robber. Edgar presented no defense evidence, as was his right, but, a fortiori, he presented no evidence that a facilitative nexus did not exist.
During jury argument, the People argued Edgar committed count 1 and the armed enhancement applied. Edgar did not dispute that, if he possessed methamphetamine for sale, there was a facilitative nexus between that offense and the arming. Instead, Edgar argued he possessed methamphetamine only for personal use and he was lawfully armed with the gun on his person. The argument implicitly denied the existence of a facilitative nexus since, if Edgar did not commit the offense of possession of methamphetamine for sale, there was no such offense and arming between which a facilitative nexus could have existed.
However, the jury necessarily rejected (1) Edgar’s argument that he did not possess methamphetamine for sale and (2) the argument’s implicit denial of a facilitative nexus. The jury, instructed on simple possession of methamphetamine as a lesser offense of possession of methamphetamine for sale, did not convict Edgar of the lesser offense but convicted him of the greater offense. The jury therefore necessarily concluded Edgar possessed methamphetamine for sale, rejected Edgar’s argument, as well as any evidence, that he possessed methamphetamine only for personal use, and therefore rejected the predicate of his implicit denial that a facilitative nexus existed.
Although Edgar denied below that he possessed methamphetamine for sale, he makes no such express denial here. Nor does he expressly deny here that he was personally armed with a firearm. Instead, he now argues the alleged instructional error was prejudicial in light of the previous dismissal of count 3 (carrying a concealed firearm; Pen. Code, § 12025, subd. (a)(2)) and evidence (from the People’s case we note) that he was personally armed for personal security.
The court granted Edgar’s motion for a judgment of acquittal as to count 3. The court indicated the fact Edgar was carrying the firearm on property where he lived was a complete defense to the charge.
However, count 3 was dismissed, not because Edgar was not personally armed with a firearm in furtherance of the offense of possession of methamphetamine for sale, but because he was at home when he carried a concealed firearm, and such carrying does not violate Penal Code section 12025, subdivision (a)(2). (Pen. Code, § 12026.) Moreover, given the evidence in this case, including Edgar’s possession of the gun found on his person and his joint possession of the strategically placed shotgun and the machine gun, there is no reasonable possibility that the jury could have concluded that Edgar was a drug dealer possessing methamphetamine for sale, personally armed with a firearm, but armed merely for personal security. Any trial court error arising from the omission of a reference to a facilitative nexus in CALJIC No. 17.16.1 was harmless under any conceivable standard. (Cf. People v. Watson, supra, 46 Cal.2d at p. 836; Chapman v. California, supra, 386 U.S. 18 at p. 24.)
The issue of whether CALJIC No. 17.15 adequately apprises a jury of the need for a “facilitative nexus” between an offense and arming is pending before our Supreme Court in People v. Pitto (S139609.)
3. Edgar’s Sentence Was Erroneous but Johnny’s Sentence Was Proper.
a. Pertinent Facts.
The information alleged as count 3 that Edgar carried a concealed firearm on his person. (Pen. Code, § 12025, subd. (a)(2).) The information alleged as count 4 that Johnny committed the offense of possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1)). As amended by interlineation, the information alleged as count 5 that Johnny possessed a machine gun (Pen. Code, § 12220). The weapon alleged in counts 4 and 5 was the Sten machine gun. The court granted Edgar’s motion for a judgment of acquittal as to count 3. After the jury announced they were unable to reach a verdict as to Johnny on counts 4 and 5, the court declared a mistrial as to each.
Edgar’s probation report reflects he had three prior arrests, no prior felony convictions, but one prior misdemeanor conviction. Johnny’s probation report reflects he suffered multiple convictions, including two for which he was sentenced to prison. One of the two was a 1995 conviction for second degree burglary in case No. KA027378. In that case, in 1996, he was sentenced to prison for one year four months. The other was a 1996 grand theft of property conviction in case No. KA032314. In that case, in 1998, following revocation of probation, the court sentenced him to prison for three years.
During sentencing as to Edgar on January 4, 2006, the court stated “It’s clear that [Edgar] along with his brother were jointly running a wholesale and retail illegal drug store. There were guns galore all over the place. The garage, as I recall, had the weapon that Edgar had in his waistband. It had the stun gun and had the loaded 12-gauge shotgun. My recollection was two boxes of shells. We had all the video surveillance items hooked both into Johnny’s room and our defendant’s room. Immediately adjacent to where the defendant was standing were the scales, the baggies, the hide-a-key container with an estimated 330 plus doses of illegal substance, not to mention the pay and owe sheets in the bedroom.”
The court then stated, inter alia, “This wasn’t just possession of a couple of bindles for the purposes of sales. It was a major, highly sophisticated operation. So we’re not talking about a corner salesmen [sic] or parking lot salesmen. And it is clear that the arming of the firearm, both the one on Mr. Edgar’s immediate person, as well as the arms that were found in the garage along with him constituted a major factor as well. [¶] So considering those factors which the court considers all to be aggravating factors, probation is denied. Defendant is to be committed to the state prison. Considering all the factors that the court has articulated, the court will select the upper term of three years in state prison for count 1. [¶] The court likewise selects the upper term under 12022(c) of five years to run consecutive, for a total of eight years.”
During sentencing as to Johnny on January 13, 2006, the court indicated it had considered the probation report. The People argued that a variety of aggravating factors, including “the assault weapon” supported the trial court’s sentencing Johnny to prison for the upper term on count 1. Johnny’s counsel submitted the matter but indicated that consideration of the assault weapon was inappropriate “in light of the jury’s verdicts, or lack thereof.”
The court commented that Johnny was probably correct insofar as the issue was whether the assault weapon could be directly linked to Johnny, but the court stated, “In terms of the entire ambience of the house, the garage, and the entire premises, I think it’s fair for the court to consider all of the guns, not just the assault weapon that the People alleged was in the possession of Johnny . . . .”
The court later stated: “As to count 1, the count which the jury found [Johnny] guilty on, the court selects the upper term for the following reasons: The scales and the money inside the safe, the fact that the Armentas were running a virtual drugstore with video surveillance cameras, enough guns and ammunition to start a small civil war in a small country, all in the same area, the pay-and owe-sheets, . . . he’s been to state prison twice. [¶] There are no factors in mitigation that I’ve been able to see, and none have been pointed out by either side. [¶] Pursuant [to] 1170.12(A) through (D) and 667 (B) through (I), that sentence will be doubled . . . for a total of six years state prison as to count 1.” The court dismissed counts 4 and 5 pursuant to Penal Code section 1385.
b. Analysis.
(1) The Court Committed Cunningham Error as to Edgar but Not as to Johnny.
Edgar and Johnny each claim that imposition of the upper term on count 1 violated his rights to a jury trial and to proof beyond a reasonable doubt, and Edgar claims imposition of the upper term on his Penal Code section 12022, subdivision (c) enhancement violated those rights. As discussed below, we agree as to Edgar only.
(a) Applicable Law.
“In Cunningham [v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham)], the United States Supreme Court, applying principles established in its earlier decisions in Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [147 L.Ed.2d 435, 120 S.Ct. 2348] (Apprendi) and Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403, 124 S.Ct. 2531] (Blakely), concluded that California’s DSL does not comply with a defendant’s right to a jury trial. ‘[U]nder the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence.’ (Cunningham, supra, 549 U.S. at pp. ___ - ___ [127 S.Ct. at pp. 863-864].)” (People v. Sandoval (2007) 41 Cal.4th 825, 835 (Sandoval).)
The Sandoval court later observed, “Apprendi stated, ‘Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.’ (Apprendi, supra, 530 U.S. at p. 490, italics added.)” (Sandoval, supra, 41 Cal.4th at p. 835.)
In Blakely, the high court concluded that “ ‘the “statutory maximum” for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” ([Blakely, 542 U.S.] at p. 303.)” (Sandoval, supra, 41 Cal.4th at p. 836.)
We note that, when an aggravating factor is submitted to the jury, “evidence . . . [will] have been presented” (Sandoval, supra, 41 Cal.4th at p. 839) on the issue. Moreover, the court has not submitted an aggravating circumstance to the jury unless the court has instructed the jury on the issue. (Id. at pp. 842-843.)
“The United States Supreme Court has recognized two exceptions to a defendant’s Sixth Amendment right to a jury trial on an aggravating fact that renders him or her eligible for a sentence above the statutory maximum. First, a fact admitted by the defendant may be used to increase his or her sentence beyond the maximum authorized by the jury’s verdict. (Blakely, supra, 542 U.S. at p. 303.) Second, the right to jury trial and the requirement of proof beyond a reasonable doubt do not apply to the aggravating fact of a prior conviction. [Citations.]” (Sandoval, supra, 41 Cal.4th at pp. 836-837.)
Finally, our Supreme Court recently explained in People v. Black (2007) 41 Cal.4th 799 (Black)), “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.” (Id. at p. 816.) The prior conviction exception to appellant’s Sixth Amendment right to a jury trial applies to prior prison terms. (Cf. People v. Velasquez (2007) 152 Cal.App.4th 1503, 1515; People v. Thomas (2001) 91 Cal.App.4th 212, 215-223.)
(b) Application of the Law to This Case.
1) The Court Committed Cunningham Error as to Edgar.
We have set forth the pertinent facts as to Edgar and, in particular, the reasons why the trial court imposed upper terms on count 1 and its enhancement.
The court did not instruct the jury on the reasons relied upon by the trial court to impose the upper terms. The jury’s verdict did not establish them. None of them came within either of the exceptions discussed in Sandoval. The trial court violated Edgar’s Sixth Amendment rights by imposing the upper terms on count 1 and its enhancement. (Cf. Sandoval, supra, 41 Cal.4th at pp. 837-838.)
As to prejudice, Sandoval concluded that the harmless error standard set forth in Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705]) applies to Cunningham error. (Sandoval, supra, 41 Cal.4th at p. 838.) In applying that standard “we must determine whether, if the question of the existence of an aggravating circumstance or circumstances had been submitted to the jury, the jury’s verdict would have authorized the upper term sentence.” (Ibid.) “[I]f a reviewing court concludes, 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.” (Id. at p. 839.) We determine this issue “[i]n view of the verdict and the state of the evidence.” (Id. at p. 841.)
We note the following. First, Sandoval, presented with the issue of whether Cunningham error was harmless, stated, “Aggravating circumstances are based upon facts that are not elements of the crime. (Cal. Rules of Court, rule 4.420(d).) Defendant thus did not necessarily have reason—or the opportunity—during trial to challenge the evidence supporting these aggravating circumstances unless such a challenge also would have tended to undermine proof of an element of an alleged offense. [¶] Furthermore, although defendant did have an incentive and opportunity at the sentencing hearing to contest any aggravating circumstances mentioned in the probation report or in the prosecutor’s statement in aggravation, that incentive and opportunity were not necessarily the same as they would have been had the aggravating circumstances been tried to a jury.” (Sandoval, supra, 41 Cal.4th at p. 839.) Sandoval’s statement is equally applicable here.
Second, Sandoval also stated, “to the extent a potential aggravating circumstance at issue in a particular case rests on a somewhat vague or subjective standard, it may be difficult for a reviewing court to conclude with confidence that, had the issue been submitted to the jury, the jury would have assessed the facts in the same manner as did the trial court.” (Sandoval, supra, 41 Cal.4th at p. 840.)
Third, Sandoval noted that an aggravating factor relied upon by the trial court in that case was “not a factor listed in the sentencing rules and it is not clear how this aggravating circumstance would have been defined for the jury had it been submitted to them. . . . In view of [this and other] uncertainties, it is impossible for this court to conclude beyond a reasonable doubt that the jury would have found [true the aggravating factor.]” (Sandoval, supra, 41 Cal.4th at p. 843.)
Sandoval relied upon the above three factors and others to conclude that the Cunningham error in that case was not harmless. (Sandoval, supra, 41 Cal.4th at pp. 839-843.) We similarly conclude the trial court in the present case com3mitted reversible Cunningham error as to Edgar.
2) The Court Did Not Commit Cunningham Error as to Johnny.
The trial court committed no Cunningham error as to Johnny by imposing the upper term on count 1 as to him. One of the reasons the court imposed that upper term was that Johnny had “been to state prison twice.” The recidivism exception applied with the result that no Cunningham error occurred as to Johnny. (Black, supra, 41 Cal.4th at pp. 818-820.)
(2) The Court’s Reliance on the Sten Machine Gun to Impose the Upper Term as to Johnny Was Proper.
Johnny also claims the trial court’s reliance on his possession of the Sten machine gun as an aggravating factor was improper in light of the fact that the jury was unable to reach a verdict as to counts 4 and 5. We disagree. Johnny was not acquitted on those counts. The jury was simply unable to reach a verdict as to them. The fact that the jury was unable to reach a verdict as to counts 4 and 5 did not render improper the court’s reliance on Johnny’s possession of the Sten machine gun as an aggravating factor. (People v. Hall (1988) 199 Cal.App.3d 914, 922; see People v. Fulton (1979) 92 Cal.App.3d 972, 976, fn. 1.) In light of our conclusion, there is no need to decide whether the availability of other aggravating factors rendered the claimed error harmless.
DISPOSITION
The judgment as to Edgar Moises Armenta is affirmed, except that his sentence is vacated and the matter is remanded for resentencing consistent with this opinion. The judgment as to Johnny Armenta is affirmed.
We concur: KLEIN, P. J., ALDRICH, J.