Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Los Angeles County Super. Ct. No. YA060289
ORDER MODIFYING OPINION
TURNER, P.J. ARMSTRONG, J. MOSK, J.
It is ordered that the opinion filed herein on January 14, 2008, be modified as follows:
1. On page 5, paragraph 1, line 4, delete the text beginning with “The crime of assault on a peace officer can be committed without the use of a firearm. . . .” and inclusive of the remainder of the paragraph.
2. The following text is to be inserted in its place:
In the opening brief, defendant only asserted that his Fourteenth Amendment due process rights were violated by the selection of the upper term. He raised no state law contentions. Thus, any state law contentions have been forfeited. (Tiernan v. Trustees of Cal. State University & Colleges (1982) 33 Cal.3d 211, 216, fn. 4; Johnston v. Board of Supervisors (1947) 31 Cal.2d 66, 70, disapproved on another point in Bailey v. County of Los Angeles (1956) 46 Cal.2d 132, 139.) In his reply brief, defendant argued that dual use of an element of the crime to aggravate a sentence is prohibited by state law. However, defendant’s failure to raise this claim of error in his opening brief waives his contention. (Garcia v. McCutchen (1997) 16 Cal.4th 469, 482, fn. 10.) “Basic notions of fairness dictate that we decline to entertain arguments that a party has chosen to withhold until the filing of its reply brief because this deprives the respondent of the opportunity to address them on appeal. [citation.]” (In re Groundwater Cases (2007) 154 Cal.App.4th 659, 693; Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764; Neighbours v. Buzz Oates Enterprises (1990) 217 Cal.App.3d 325, 335, fn. 8.) Moreover, no state law objections were interposed in the trial court further forfeiting any contentions. (In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2; People v. Scott (1994) 9 Cal.4th 331, 351; People v. Neal (1993) 19 Cal.App.4th 1114, 1117-1124.)
In the rehearing petition, defendant argues that the trial court could not rely on the fact that the firearm use findings could warrant imposition of the upper term. No doubt, if there were an assertion of state law error, the dual use prohibition would constitute error. But this is not an issue of state law error. The issue posited in the opening and reply briefs is one of federal constitutional error because the upper term was imposed. Nothing in the federal constitution prevents an appellate or trial court from relying on a theory that would violate a provision of the California Rules of Court to determine whether there has been a Fourteenth Amendment due process clause violation.
In People v. Black, supra, 41 Cal.4th at page 813, the California Supreme Court held: “[S]o long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury.” In People v. Sandoval (2007) 41 Cal.4th 825, 837-838, our Supreme Court held that where the upper term sentence is based upon aggravating circumstances not admitted by the defendant or found by a jury the defendant’s Sixth Amendment rights are violated. Here, the firearm use enhancements, which were found to be true, upon proper notice, beyond a reasonable doubt, permit imposition of the upper term.
Nonetheless, the upper term was fully supported by defendant’s prior record. In imposing consecutive sentences, the trial court adverted to defendant’s prior record. This included defendant’s status as a parolee when he pointed the semiautomatic weapon at the deputies. On February 11, 1991, as a juvenile, defendant was arrested for robbery and placed home on probation. On November 2, 1992, a modification petition was filed and defendant was committed to the camp community placement program. On April 12, 1994, defendant was arrested for various firearm offenses and placed again in the camp community placement program. On January 10, 1997, as an adult, defendant was arrested and ultimately convicted of marijuana possession. On March 11, 1997, defendant was arrested and later convicted of driving with a suspended license. On January 19, 1998, defendant was again arrested and later convicted of driving with a suspended license. On March 22, 1998, defendant was arrested and convicted for third time of driving with a suspended license. For each of these convictions for driving with a suspended license, defendant received jail time. On November 6, 1998, defendant was arrested and later convicted of possession of an assault weapon, a felony. He was required to serve 270 days in jail as a condition of three years probation. Later, probation was revoked and he was sentenced to state prison. On August 12, 2001, defendant was convicted of a fourth time for driving with a suspended license. On November 20, 2001, defendant was convicted of possession of marijuana for sale and sentenced to prison for three years. He was on parole at the time of his arrest in the current case. Accordingly, based upon defendant’s prior record, which was discussed by the trial court at the time of sentencing, the upper term could constitutionally be imposed. (People v. Black, supra,, 41 Cal.4th at p. 818; Almendarez-Torres v. United States (1990) 523U.S. 224, 243.)
In any event, remand for resentencing is unwarranted because any error was harmless beyond a reasonable doubt. In Washington v. Recuenco (2006) 548 U.S. ___, ___ [126 S.Ct. 25462551-2553], the United States Supreme Court held that the harmless error standard set forth in Chapman v. California (1967) 386 U.S. 18, applies to the failure to submit a sentencing factor to a jury. (See also People v. Sandoval, supra, 41 Cal.4th at p. 838.) In Sandoval, our Supreme Court held, “[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.) In imposing the consecutive sentence in this case, the trial court noted and the record reflects defendant had served a prison term and he was on parole when arrested in this case. The jurors’ guilty verdict of firearm possession by a felon supports this. Also, he had been previously convicted on two occasions of felonies. Defendant also had a history of three sustained juvenile petitions and six misdemeanor convictions as an adult. The upper term as to count 1 would therefore be justified based upon the defendant’s record of prior convictions. (People v. Black, supra, 41 Cal.4th. at p. 816.) Any error was harmless beyond a reasonable doubt.
There is no change in the judgment.