Opinion
NOT TO BE PUBLISHED
Appeal from judgments of the Superior Court of Orange County, Super. Ct. No. 06CF3153 Craig E. Robison, Judge.
Nancy Olsen, under appointment by the Court of Appeal, for Defendant and Appellant John Valdez Briones.
Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant and Appellant Juan Diego Noriega.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lynne McGinnis and Gary W. Brozio, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RYLAARSDAM, ACTING P. J.
Defendant John Valdez Briones was convicted of carjacking (Pen. Code, § 215, subd. (a); all further references are to this code unless otherwise stated), second degree robbery, (§§ 211, 212.5, subd. (c)), recklessly evading a police officer (Veh. Code, § 2800.2), taking a vehicle having suffered a prior conviction (§ 666.5, subd. (a); Veh. Code, § 10851, subd. (a)), and possession of a firearm by a felon (§ 12021, subd. (a)(1)). The jury found he personally used a firearm (§§ 12022.53, subd. (b), 1203.06, subd. (a)(1)). He was sentenced to a total of 24 years consisting of the upper term of 9 years for carjacking plus a 10-year consecutive term for the firearm enhancement; a consecutive 1-year term for robbery plus an enhancement of 3 years, 4 months for the firearm; and a consecutive 8 months for the reckless evading.
Defendant Juan Diego Noriega was also convicted of carjacking, second degree robbery, taking a motor vehicle (Veh. Code, § 10851, subd. (a)), and possession of a firearm by a felon. The jury found he was armed with a gun (§ 12022, subd. (a)(1)). The court found he had a prior strike (§§ 667, subds. (d), (e)(1), 1170.12, subds. (b), (c)(1)), a prior serious felony (§ 667, subd. (a)(1), and a prior prison term where he failed to remain out of custody for five years (§ 667.5, subd. (b)). He received a total term of 24 years as follows: the upper term of 9 years for carjacking, which was doubled based on the prior strike, plus a 1-year consecutive term for the firearm enhancement; a concurrent 2 years for the robbery; and a consecutive 5-year term for the serious felony conviction.
Briones appeals the upper term sentence for carjacking, claiming it violates his Sixth and Fourteenth amendment rights because the jury did not determine some of the aggravating factors on which the court relied and because the court failed to consider mitigating factors. He also maintains that amended section 1170 may not be applied retroactively. Noriega joins these arguments. We find no error.
Noriega asserts there was insufficient evidence to support his conviction for possession of the gun. We disagree.
Finally, both defendants appeal the consecutive sentences for the carjacking and robbery as a violation of section 654. The Attorney General concedes this was error and we modify the judgment to stay the sentences on the robbery convictions.
FACTS
We recite those only those facts necessary to discuss Noriega’s substantial evidence claim as to the gun possession.
When Meou Duch was stopped at a traffic light in his car, Briones opened the front passenger door and pointed a gun at him, demanding his wallet and cell phone. Briones then pushed Duch while Noriega opened the driver’s side door, hit Duch on the neck, pulled him out of the car, and took the two items. Duch was unconscious as Briones left in Duch’s car and Noriega drove off in his own.
At some point the two men met up and Noriega got into the stolen car. While the car was being chased by police, Briones slowed down and Noriega jumped out and fled. Briones drove away and subsequently stopped the car and got out, running from police. When he was arrested, he had a backpack that contained, among other items, handgun grips. Later, a gun with missing grips that matched those recovered from Briones was found near where he was arrested.
At trial, Briones testified that he found the gun and the grips in Duch’s car. He also testified that he took the gun when he fled from police after leaving the car.
DISCUSSION
1. Sufficiency of the Evidence as to Noriega’s Possession of the Gun
Noriega asserts there is insufficient evidence to support his conviction for possession of a firearm by a felon.
“‘In assessing a sufficiency-of-evidence argument on appeal, we review the entire record in the light most favorable to the prevailing party to determine whether it shows evidence that is reasonable, credible and of solid value from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citations.] The same standard applies to a conviction based primarily on circumstantial evidence. [Citations.]” (People v. Meza (1995) 38 Cal.App.4th 1741, 1745; see also People v. Holt (1997) 15 Cal.4th 619, 667-668.)
To convict a felon for possession of a firearm, the prosecution must prove the defendant exercised ownership, possession, custody, or control of the weapon. (§ 12021, subd. (a); People v. Jeffers (1996) 41 Cal.App.4th 917, 922.) Possession must be intentional (People v. Jeffers, supra, 41 Cal.App.4th at p. 922) and may be actual or constructive (People v. Mejia (1999) 72 Cal.App.4th 1269, 1272). A defendant “has constructive possession when the weapon, while not in his actual possession, is nonetheless under his dominion and control, either directly or through others.” (People v. Pena (1999) 74 Cal.App.4th 1078, 1083-1084.) Constructive possession need not be exclusive but may be shared with another (People v. Newman (1971) 5 Cal.3d 48, 52) and may be proven by circumstantial evidence and any reasonable inferences drawn therefrom (People v. Williams (1971) 5 Cal.3d 211, 215, disapproved on another ground in People v. Daniels (1975) 14 Cal.3d 857, 876).
The prosecution relied on Noriega’s constructive possession of the gun, and there was sufficient evidence to support the conviction on this ground. The record shows defendants planned the crime. They waited for a potential victim at the intersection. The gun was an integral part of the criminal undertaking and it is reasonable to infer Noriega saw Briones use it to threaten Duch to hand over his wallet and cell phone. Noriega then assisted by hitting Duch, rendering him unconscious, and taking his wallet and phone. When Noriega entered the stolen car, the gun was in it and he had access to the gun.
We reject Noriega’s claim “the firearm never left Briones’[s] exclusive possession.” Although Briones had sole possession when he was the only one in the stolen car, once the two men occupied it, there is no evidence to support that claim. Likewise we reject Noriega’s conclusion that nothing suggests Briones “surrendered physical possession” of the gun to him. A trier of fact could have reasonably inferred from the circumstantial evidence that Noriega had dominion and control of the gun when the defendants were together in the car, even if it was not exclusive. And, contrary to Noriega’s claim, the evidence shows more than his mere proximity to the gun.
Noriega attempts to distinguish People v. Nieto (1966) 247 Cal.App.2d 364, where the court affirmed a conviction of possession of a firearm by a felon. When police found the guns under the front seat of the defendant’s car, the defendant denied possession or even knowing they were there. The passenger in the car claimed he owned the guns. The defendant lied to police about the name of his passenger. The court held that the presence of the guns and the false statements were sufficient evidence of constructive possession. (Id. at p. 368.)
Here, that the gun was not found in a car owned by Noriega, as he claims, does not make the evidence insufficient. The car was stolen in a joint enterprise between Noriega and Briones where the gun was used to facilitate the crime. Likewise, the federal cases cited by Noriega are not persuasive. We need not turn to non-binding, non-California cases when there is more than sufficient state law to support the conviction.
2. Upper Term Sentence for Carjacking
Briones asserts, and Noriega joins, that under Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435], Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403], and Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856, 166 L.Ed.2d 856] the upper term for the carjacking count was erroneous because facts the court used to impose the sentence were not found by a jury. They also claim the court did not weigh potentially mitigating factors. We find no error.
In sentencing Briones, the court relied on the fact he was a recidivist. It specifically mentioned his several juvenile adjudications, including one for assault with a deadly weapon, several for auto theft, and one for inflicting corporal injury on someone with whom he had a special relationship. He had been on juvenile probation six times. As an adult, he was convicted of auto theft, fleeing from police while driving recklessly, receiving stolen property, and giving a false name to police, which resulted in three years’ felony probation. Briones admitted this conviction and the jury found it true. The present crimes were committed while he was on probation. The court also found Briones’s numerous convictions were “increasing[ly] serious.”
Defense counsel objected to the term, pointing out that Briones had only one prior prison sentence and had not been convicted of any crimes of violence as an adult.
The court imposed the upper term on Noriega because he had three juvenile adjudications for unlawfully taking or possessing a stolen car, for each of which he was put on probation. At the time of the current offense, he was on parole after serving 32 months in prison for being a felon in possession of a gun and it had been less than one year since he had been released. In sum, the court selected the upper term because Noriega was a recidivist.
Our Supreme Court has 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.” (People v. Black (2007) 41 Cal.4th 799, 816 (Black).) Here the jury found defendant had a prior adult conviction and defendant admitted he was on probation at the time of this crime. As defendant acknowledges, these two factors satisfy the Black test and were proper for the court to rely on in sentencing him to the upper term.
Defendants concede that per Black no jury trial is required for the finding that prior convictions are “numerous or increasingly serious” (Black, supra, 41 Cal.4th at p. 819), but argue that the holding in Almendarez-Torres v. United States (1998) 523 U.S. 224 [118 S.Ct. 1219, 140 L.Ed.2d 350], on which the Black court relied, “has been soundly criticized.” They also attack the court’s reliance on their juvenile adjudications, noting the law is unsettled as to whether these may be used as aggravating factors because they are not decided by a jury. (People v. Nguyen, review granted Oct. 10, 2007, S154847 [this issue pending].) We need not decide these claims because there are at least two aggravating circumstances that qualify defendants for the upper term and, as they also acknowledge, “any additional fact finding . . . by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to jury trial.” (Black, supra, 41 Cal.4th at p. 812.)
We reject defendants’ challenge to the constitutionality of Black. Regardless of a pending petition for certiorari, we are bound by its holding. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Further, nothing in the record shows that the court applied either amended section 1170 or People v. Sandoval (2007) 41 Cal.4th 825 retroactively.
Finally, defendants’ argument that the court erred by failing to consider mitigating factors is unavailing. Counsel for Briones presented potential mitigating factors; Noriega’s counsel did not suggest any. The record shows the judge read and considered the probation reports, both of which showed no factors in mitigation, and the prosecution argued there were no mitigating factors.
Under current rule 4.420 the court has discretion but is not required to consider factors in mitigation. (Cal. Rules of Court, rule 4.420(b).) Under prior rule 4.420, the court could impose the upper term if it had considered “all the relevant facts[ and] the circumstances in aggravation outweigh the circumstances in mitigation.” (Cal. Rules of Court, former rule 4.420(b).) Here, it was reasonable for the court to find that the aggravating circumstances as set out above outweigh any factors in mitigation that counsel for Briones argued. Defendant’s prior criminal conduct, especially its frequency, cannot be considered insignificant under Cal. Rules of Court, rule 4.423(b)(1). In addition, although much of the conduct was when he was a juvenile, he had adult convictions of auto theft, receiving stolen property, driving recklessly while fleeing police, and giving a false name to police.
3. Stay of the Robbery Sentences Under Section 654
The trial court found that the “robbery was separate and independent from the carjacking . . . [even though] the events occurred on the same occasion” and using its discretion sentenced defendants to concurrent terms for the robbery. Defendants claim this was error because the two crimes were committed pursuant to one criminal objective and were indivisible and thus multiple punishment was barred under section 654. The Attorney General concedes this point. Therefore, the judgment shall be modified to stay defendants’ sentences for the robbery.
DISPOSITION
The judgment is modified to stay the sentences of both defendants for the robbery count and is affirmed as modified. The clerk of the superior court shall prepare corrected abstracts of judgment reflecting these modifications and shall forward copies of the corrected abstracts to the Department of Corrections and Rehabilitation, Division of Adult Operations.
WE CONCUR: ARONSON, J. FYBEL, J.