Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. KA072086, Robert M. Martinez and Tia Fisher, Judges.
John Steinberg, 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, Steven D. Matthews and Herbert S. Tetef, Deputy Attorneys General, for Plaintiff and Respondent.
DOI TODD, J.
Benjamin Fred Garcia, Jr., appeals from the judgment entered upon his convictions by jury of possession of an assault weapon (Pen. Code, § 12280, subd. (b), count 6), concealing a firearm in a vehicle (§ 12025, subd. (a)(1), count 7), and voluntary manslaughter (§ 192, subd. (a), count 8) as a lesser included offense of murder. As to count 8, the jury found the firearm-use allegation within the meaning of section 12022.5, subdivision (a) to be true. The trial court sentenced appellant to an aggregate prison term of 16 years. Appellant contends that (1) his Fourth Amendment rights were violated by an unlawful automobile search, (2) he was deprived of effective assistance of counsel by reason of his attorney’s failure to move to suppress the evidence seized in the illegal automobile search, (3) his postarrest statement admitting possession of the firearm found during the automobile search was involuntary because it was obtained in violation of Miranda, and (4) the trial court erred in relying on Senate Bill No. 40 and People v. Sandoval to impose the aggravated term for the firearm-use enhancement.
All further statutory references are to the Penal Code unless otherwise indicated.
The jury was unable to reach verdicts on a second count of murder (§ 187, subd. (a), count 1), on three counts of assault with a semiautomatic firearm (§ 245, subd. (b), counts 2-5), and on four counts of attempted, willful, deliberate and premeditated murder (§§ 664, 187, subd. (a), counts 9-12). The trial court declared a mistrial on these counts, and, upon retrial, the jury acquitted appellant of all of them.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
Statutes 2007, chapter 3, section 2 (Senate Bill No. 40).
People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval).
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant was prosecuted on charges relating to three separate incidents; a March 4, 2004 homicide, an April 10, 2005 homicide, and possession of a firearm on May 13, 2005. We do not include the facts relating to the charges arising from the March 4, 2004 incident as appellant was ultimately acquitted of those charges, and we provide only a cursory summary of the facts pertaining to the charges arising from the April 10, 2005 incident, as appellant’s contention relating to that incident pertains only to the sentence imposed.
A. April 10, 2005 incident (count 8)
The prosecution’s evidence
On April 10, 2005, appellant, Daniel Canez, Ron Chaidez and David Ellis were on the back patio of Ellis’s house in the City of Pomona. Appellant and Chaidez worked for Ellis, and Canez was Ellis’s friend. Appellant and Canez were arguing. Appellant fired a gunshot toward the ground. Canez rose or lunged at appellant and appeared to grab a gun or machete that was on the desk. Appellant fired a second shot, striking Canez with a fatal wound in the abdomen.
The defense’s evidence
On April 10, 2005, appellant went to Ellis’s house to collect money Ellis owed him. Canez, Ellis, and Chaidez were there. Appellant asked Ellis for money. They began arguing when Ellis told appellant he could pay him with “dope.” Canez intervened and said to appellant, “‘Fuck you.’” Canez reached down and grabbed something with a brown handle, which appellant thought might be a shotgun, as he knew Ellis kept guns in the house. Appellant pulled out a pistol and fired a shot at the ground. Canez became angry, and appellant could see that the object he was holding was a machete. Appellant believed Canez, a larger man, was going to attack him with it, so he shot Canez in self-defense.
B. May 13, 2005 incident (counts 6 & 7)
The prosecution’s evidence
On May 13, 2005, Pomona gang investigations Detective Michael Lange and his partner, Officer Travis Johnson, were driving south on Glen Avenue in an unmarked police car. Detective Lange saw a car traveling east on Pavillion Drive go through a stop sign without stopping. The car made a left on Glen Avenue so it was facing the police car. The detective recognized Erik Guizar as the driver and appellant, believed to be a member of the “Crazy Ass Lunatics” crew (CAL), as the front passenger. Guizar looked directly at Detective Lange, but appellant averted eye contact and looked down. As Guizar was making a left turn on Surrey Lane, Detective Lange made a U-turn to initiate a traffic stop, drove behind Guizar and turned on his lights and siren. Guizar kept driving for approximately 100 feet before pulling over. While he was doing so, appellant made a “furtive” movement, quickly reaching down toward the floorboard. In Detective Lange’s experience gang members and others often hide narcotics and weapons in that location. The stop occurred in West Side Pomona gang territory.
Detective Lange approached the car, told Guizar that he had failed to stop at the stop sign, and asked why Guizar did not immediately stop when the police car’s lights and siren were activated. Guizar claimed not to have seen the lights. He and appellant appeared to be extremely nervous. At the time of the stop, they were CAL members. A third man, Carlos Castellanos, Guizar’s cousin, was in the backseat. Castellanos “h[u]ng with” the Cherrieville gang, which was associated with CAL and was a rival of the West Side Pomona gang.
The officers ordered the three men out of the car and patted them down for weapons, but found none. Detective Lange asked Guizar if there was anything illegal in the car and was told that there was not. The detective asked if he could search, and Guizar said, “‘Go ahead.’” The search uncovered a Tech-9 assault weapon and magazine containing 22 live nine-millimeter rounds under the front passenger seat where appellant had been sitting. The serial number on the gun had been scratched off. The detainees were arrested and placed in handcuffs. Detective Lange asked why they did not tell him about the gun. They denied knowing it was there.
A few minutes later, appellant asked to speak with Detective Lange, who said they could speak in the presence of another officer who was at the scene. The officers took appellant aside and asked what he wanted. He told them that he had just gotten the gun earlier that day from a friend because he was having problems with the West Side Pomona gang, members of which had shot him six weeks earlier.
According to Guizar, he did not know that appellant had a gun in the car until the officers turned on their lights. He then saw appellant remove a large handgun from his waistband and place it under the front passenger seat.
The defense’s evidence
Appellant testified in his own defense. On May 13, 2005, he was a passenger in Guizar’s car when Guizar told him that a Tech-9 gun and a magazine clip were underneath appellant’s seat. Appellant saw Detective Lange and Officer Johnson drive by in their unmarked car. Appellant told Guizar to back up so appellant could get out of the car and run, as there was a warrant out for appellant’s arrest and the gun was in the car. Guizar kept driving. The officers drove behind them and turned on their car’s lights. Appellant reached down to grab the gun and run with it, but decided against it. Guizar pulled over, but not immediately.
The officers approached the car and asked Guizar why he did not stop. He did not respond. The officers ordered the occupants out of the car and patted them down. Detective Lange asked if there were any weapons inside and was told there were not. Appellant was detained and handcuffed. The officers searched the car and found the Tech-9 under the front passenger seat, where appellant had been sitting, and asked why they were not told there was a gun. They got no response.
Appellant asked to talk with Detective Lange. Detective Lange and another officer who had responded to the scene took him to the side, and appellant told them that the Tech-9 belonged to him because he needed protection from the West Side Pomona gang. He testified that the gun actually belonged to both him and Guizar, but appellant said it was his to protect Guizar.
Appellant denied being a gang member, although he admitted associating with CAL, a tagging crew affiliated with the Cherrieville gang, rivals of the West Side Pomona gang. In November 2004, appellant was shot by West Side Pomona gang members who were tagging in front of his home. He knew Guizar was a CAL member, not a gang member, who associated with Cherrieville gang members. Castellanos was a Cherrieville gang member.
DISCUSSION
I. Legality of the search
A. Background
As set forth in detail in the preceding factual statement, Detective Lange testified at trial to the details of the May 13, 2005 traffic stop of Guizar’s car, Guizar’s consent to search the car and seizure of the assault weapon and ammunition inside. Appellant did not move to suppress the seized items or otherwise raise the question of the legality of the search in the trial court.
B. Contentions
Appellant contends that the search of Guizar’s car was illegal and violated the Fourth Amendment, rendering the seized firearm and ammunition inadmissible. He argues that the consent to search was the product of “an illegally prolonged detention” and that such a detention is a de facto arrest that must be supported by probable cause, of which there was none. He further argues that there was insufficient evidence to support an investigatory detention.
Respondent contends that appellant lacks standing to challenge the legality of the search. Respondent further contends that because the constitutionality of the search was never raised below, appellant forfeited this claim.
While respondent uses the term “‘standing,’” as noted by our Supreme Court in People v. Ayala (2000) 23 Cal.4th 225, 254, footnote 3, we avoid use of that term as a shorthand reference for the requirement that a defendant demonstrate that he has a justifiable expectation of privacy in order to challenge the search under the Fourth Amendment.
We agree with respondent that appellant lacks an expectation of privacy and, in any event, forfeited this contention by failing to raise it in the trial court. Further, even if it was not forfeited, this claim is meritless.
C. Expectation of privacy
Fourth Amendment rights are personal and may not be vicariously asserted. (Rakas v. Illinois (1978) 439 U.S. 128, 133-134.) In order to challenge a search or seizure, the defendant must first establish that the search or seizure “infringed an interest of the defendant which the Fourth Amendment was designed to protect.” (Id. at p. 140.) This showing is made when a defendant meets his or her burden of establishing a legitimate expectation of privacy in the area searched. (Rawlings v. Kentucky (1980) 448 U.S. 98, 104; United States v. Salvucci (1980) 448 U.S. 83, 91-92 (Salvucci); People v. Jenkins (2000) 22 Cal.4th 900, 972.) What a defendant must show is “‘an actual (subjective) expectation of privacy...’ [and that the expectation is] ‘one that society is prepared to recognize as “reasonable.”’” (Smith v. Maryland (1979) 442 U.S. 735, 740.)
Proposition 8 makes a defendant’s right to object to seized evidence subject to federal law. (In re Lance W. (1985) 37 Cal.3d 873, 886-887; Cal. Const., art. I, § 28(d).)
A passenger in a vehicle has an expectation of privacy that will allow the passenger to challenge a seizure of evidence from the vehicle if the passenger asserts either “‘a possessory interest in the automobile [or] an interest in the property seized.’” (People v. Valdez (2004) 32 Cal.4th 73, 122, quoting Rakas v. Illinois, supra, 439 U.S. at p. 148.) The United States Supreme Court has subsequently made clear that a person in legal possession of an item seized during an illegal search “has not necessarily been subject to a Fourth Amendment deprivation.” (Salvucci, supra, 448 U.S. at p. 91.) The Salvucci court stated: “In Rakas, this Court held that an illegal search only violates the rights of those who have ‘a legitimate expectation of privacy in the invaded place.’ [¶] We simply decline to use possession of a seized good as a substitute for a factual finding that the owner of the good had a legitimate expectation of privacy in the area searched.” (Ibid.) As a passenger in a car in which he had no possessory interest, appellant had no expectation of privacy that would permit him to challenge the legality of the search of the car, despite his asserted interest in the seized weapon.
Appellant’s reliance on Brendlin v. California (2007) 551 U.S. 249 is misplaced. There, the defendant challenged the legality of the police stop of the vehicle in which he was a passenger. The court found that a passenger could challenge a traffic stop because it necessarily curtails the travel of the passenger as much as it does the driver. Brendlin did not deal with the question of the propriety of the search of the stopped vehicle.
D. Forfeiture
We do not review questions as to the admissibility of evidence unless a specific and timely objection on the ground raised on appeal was made in the trial court. (Evid. Code, § 353; People v. Williams (2008) 43 Cal.4th 584, 620.) Even claims based upon constitutional violations are forfeited if not raised in the trial court. (People v. Williams (1997) 16 Cal.4th 153, 250.) More specifically, “a motion to test the validity of a search or seizure must be raised in the superior court to preserve the point for review on appeal.” (People v. Miranda (1987) 44 Cal.3d 57, 80, disapproved on other grounds in People v. Marshall (1990) 50 Cal.3d 907, 933, fn. 4; People v. Lilienthal (1978) 22 Cal.3d 891, 896.) Having failed to challenge the legality of the search in the trial court, appellant cannot raise that claim on appeal.
E. Legality of search
Even if appellant had preserved this claim for appeal and had an expectation of privacy that allowed him to assert it, we would nonetheless reject it on the merits. An officer has the right to stop and detain a driver who has committed a traffic infraction. (People v. Gallardo (2005) 130 Cal.App.4th 234, 238.) Appellant concedes the legality of the traffic stop as the car in which he was a passenger failed to stop at the stop sign. But the detention cannot be prolonged beyond the time period necessary to address the violation. (Ibid.) There is no hard and fast rule as to the amount of time that is reasonable. (Ibid.) It depends on the circumstances of each case. (Ibid.)
“[I]nvestigative activities beyond the original purpose of a traffic stop, including warrant checks, are permissible as long as they do not prolong the stop beyond the time it would otherwise take.” (People v. Brown (1998) 62 Cal.App.4th 493, 498; People v. Gallardo, supra, 130 Cal.App.4th at p. 238; see also People v. McGaughran (1979) 25 Cal.3d 577, 584 [warrant check permissible during traffic stop so long as it “can be completed within that same period” as necessary “to discharge the duties that he incurs by virtue of the traffic stop”].) “Questioning during the routine traffic stop on a subject unrelated to the purpose of the stop is not itself a Fourth Amendment violation. Mere questioning is neither a search nor a seizure.” (People v. Brown, supra, at p. 499.) An officer may ask for consent to search, so long as the search does not unduly prolong the traffic stop. (People v. Gallardo, supra, at p. 239.)
The facts here do not indicate that the detention was unreasonably prolonged. The officers pulled Guizar’s car to the side of the road and had the occupants exit and briefly patted them down. They asked the occupants if there was anything illegal in the car and were told that there was not. Detective Lange then asked if they could search the vehicle, and Guizar said, “Go ahead.” His consent appears to have come just a few minutes after the stop. While the record fails to specify the precise amount of time that elapsed during the stop, or what the officers were doing, if anything, with respect to the traffic violation, nothing indicates that the duration of the detention was prolonged. That being the case, neither Guizar’s consent nor appellant’s admission of possession of the gun were the fruits of an illegal detention.
Because we conclude that appellant’s detention was justified as a traffic stop, was not unduly prolonged, and the search justified by Guizar’s consent, we need not determine whether the search could be independently justified by probable cause or whether there was sufficient evidence to support an investigatory stop.
II. Ineffective assistance of counsel
Appellant contends that he suffered ineffective assistance of counsel by reason of his attorney’s failure to move to suppress evidence. He argues that had counsel done so there is a reasonable probability that the result would have been more favorable because the prosecution would have been unable to prove counts 6 and 7. This contention is meritless.
To prevail on a claim of ineffective assistance of counsel, a defendant must demonstrate that counsel’s representation fell below an objective standard of reasonableness, and, but for counsel’s errors, there is a reasonable probability that the result of the proceeding would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 687; People v. Berryman (1993) 6 Cal.4th 1048, 1081, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn 1.) A reasonable probability “‘is a probability sufficient to undermine confidence in the outcome.’” (People v. Adkins (2002) 103 Cal.App.4th 942, 950.)
“‘“Reviewing courts defer to counsel’s reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a ‘strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.’” [Citation.].... “Tactical errors are generally not deemed reversible, and counsel’s decision-making must be evaluated in the context of the available facts.” [Citation.] [¶] In the usual case, where counsel’s trial tactics or strategic reasons for challenged decisions do not appear on the record, we will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsel’s acts or omissions. ([Citation]; see also People v. Fosselman (1983) 33 Cal.3d 572, 581 [on appeal, a conviction will be reversed on the ground of ineffective assistance of counsel “only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission”].)’ [Citation.]” (People v. Jones (2003) 29 Cal.4th 1229, 1254.) “In some cases, however, the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged. In such circumstances, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, these cases are affirmed on appeal.” (People v. Pope (1979) 23 Cal.3d 412, 426, fn. omitted; disapproved on other grounds in People v. Berryman, supra, 6 Cal.4th at p. 1081, fn. 10.)
Because we have concluded that appellant had no expectation of privacy in Guizar’s car, had appellant’s counsel challenged the search in the trial court, that challenge would have been rejected. In fact, counsel may not have challenged the search for that very reason. Hence, it is not reasonably probable that the result of the proceeding would have been different had counsel done so. Also, “‘[a]dditional facts, irrelevant to the issues at the trial and possibly prejudicial to appellant, may very well have justified the officer’s conduct and counsel’s decision not to attack the validity of the search....’” (People v. Mendoza Tello (1997) 15 Cal.4th 264, 267.) The record here is inadequate to assess counsel’s inaction.
III. Admission without Miranda warning
A. Background
On direct examination, Detective Lange testified that after searching Guizar’s car and finding the firearm, he asked the occupants “why they didn’t tell [him the gun] was in there.” A few minutes later, appellant “asked if he could speak to [Detective Lange].” The prosecutor then asked the detective, “What happened after [appellant] asked to speak with you?” Defense counsel objected to admission of appellant’s statement to Detective Lange because there was no foundation as to whether appellant was in custody and had received Miranda warnings at that time. A sidebar discussion ensued. The prosecutor argued that although appellant was handcuffed and not free to leave, he initiated the communication by asking to talk to Detective Lange.
B. Evidence Code section 402 hearing
The trial court conducted an Evidence Code section 402 hearing, at which the following evidence was adduced: After the gun was found in Guizar’s car, appellant was handcuffed, detained in custody and was not free to leave. Detective Lange asked why the occupants of the car did not tell him there was a gun inside. Appellant responded that he did not know about it initially. A couple of minutes later, appellant initiated contact and asked to speak with Detective Lange, who moved him away from the other occupants of the car and asked what he wanted to say. Appellant then “spontaneously” stated that he had just gotten the gun that day from a friend because he was having problems with the West Side Pomona gang.
After the testimony, the prosecutor conceded that appellant was in custody at the time he made the statement but argued that it was not the result of interrogation. Appellant initiated the contact, he was not being interrogated, and Detective Lange did not know what he was going to say.
The trial court ruled that appellant’s statement was not the product of interrogation but was spontaneous and voluntary. His admission that he possessed the gun was therefore admissible.
C. Contention
Appellant contends that his postarrest admission was involuntary because it was made without his having been read his Miranda rights. He argues that he was in custody when Detective Lange initially asked why he did not tell him about the gun and that that question constituted interrogation as it was likely to elicit an incriminating response. Only a few minutes separated his response that he did not know the gun was there and his request to speak with the detective and admission that he obtained the weapon earlier that day. He argues that without his inadmissible statement and the illegally seized weapon there was insufficient evidence to prove counts 6 and 7 which must be reversed. This contention is without merit.
D. Standard of review
Because the pertinent facts are uncontroverted, we independently review the Miranda ruling. (People v. Boyer (1989) 48 Cal.3d 247, 263, disapproved on other grounds in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1; People v. Esqueda (1993) 17 Cal.App.4th 1450, 1465.)
E. Miranda violation
A defendant who is in custody must be given Miranda warnings before police officers may interrogate him or her (see Miranda, supra, 384 U.S. at p. 444; Rhode Island v. Innis (1980) 446 U.S. 291, 297-298), and, if the defendant asks for counsel or indicates a desire to remain silent, interrogation must stop. (Miranda, supra, at pp. 444-445.) “[T]he Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent.... [T]he term ‘interrogation’ under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” (Innis, supra, 446 U.S. at pp. 300-301, fns. omitted; People v. Cunningham (2001) 25 Cal.4th 926, 993.) Statements that are initiated and volunteered by the suspect are not subject to the prophylactic requirements of Miranda. (People v. Ray (1996) 13 Cal.4th 313, 337.)
There is no dispute here that appellant was in custody at the time he admitted possession of the assault weapon. He was in handcuffs and not free to leave. The question is therefore whether appellant’s admission was elicited as a result of the interrogation. (See People v. McDaniel (1976) 16 Cal.3d 156, 172.) We conclude that it was not. After the gun was found, Detective Lange asked why the occupants did not tell him it was in the car. Appellant responded that he did not know about it. There was no further questioning, and several minutes elapsed before appellant initiated conversation by asking to speak with him. Even if the initial question by Detective Lange could be interpreted as interrogation, which we need not decide, the passage of time with no further questions by the officers terminated any interrogation. There was no questioning going on at the time appellant asked to speak, he had already denied knowing about the gun, and he gave no hint as to what he wanted to discuss. The only question the officers asked him after they moved him away from the others was what he wanted to say. That question was not interrogation but was asked simply to give appellant the opportunity to express the substance of his voluntary request to speak.
IV. Upper term sentence on firearm enhancement
A. Sentencing
Appellant was convicted of the lesser included offense of voluntary manslaughter and, in connection with that count, the jury found the firearm-use enhancement in section 12022.5, subdivision (a)(1) to be true. Appellant was also convicted of possession of a concealed weapon in a vehicle and possession of an assault rifle.
The prosecution’s sentencing memorandum recommended the upper term based upon (1) appellant’s threats to witnesses after the shooting, (2) violent conduct that makes him a danger to society, (3) the facts not “add[ing] up to an actual belief in a need to shoot in self-defense,” and (4) his conviction of other counts for which consecutive sentences could have been imposed. There were no facts in mitigation cited in the prosecution’s sentencing memorandum. Defense counsel argued that every one of the aggravating factors mentioned by the prosecution to support an upper term sentence was addressed by the jury and resulted in the acquittals. The defense cited as mitigating factors that appellant fired a warning shot before shooting Canez, had no adult or juvenile convictions, and worked at two jobs and argued that these outweighed the aggravating factors.
At the sentencing hearing, the trial court stated that under Cunningham v. California (2007) 549 U.S. 270 (Cunningham), it was not convinced that it could consider aggravating factors not found true by the jury to impose an upper term sentence, in light of the jury’s acquittals of appellant on some counts. The trial court concluded, “I am not going to consider factors that the jury acquitted the defendant on as aggravating factors.” “[T]he Legislature has given judges back discretion....” “What troubles me... is that the crime happened in... April, and in May he’s in a car with that Intertech Tech 9... to justify... a high term because these are gun crimes.” It sentenced appellant to the middle term of six years for the voluntary manslaughter plus a consecutive upper term of 10 years for the firearm-use enhancement in section 12022.5, subdivision (a)(1), to a concurrent middle term of two years for possession of an assault rifle and to the middle term of two years for possession of an assault weapon in a vehicle conviction, which was stayed pursuant to section 654.
This statement is an apparent reference to Senate Bill No. 40 which eliminated the middle term as the presumptive term and gave the trial court discretion to impose any of the triad of sentencing options.
B. Contention
Appellant contends that imposition of the upper term sentence on the firearm enhancement under Senate Bill No. 40 violates the proscription against ex post facto laws and due process. He argues that he was convicted of crimes committed in 2005, before enactment of that bill, at which time the law required the middle term be applied unless aggravating factors found by a jury beyond a reasonable doubt outweighed mitigating factors. Senate Bill No. 40 gave the trial court discretion to impose an aggravated sentence without such jury findings. This contention lacks merit.
C. Analysis
In Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi), the United States Supreme Court held that a defendant had a constitutional right to have the jury, not the trial judge, decide all facts that increase the penalty for a crime beyond the prescribed statutory maximum, except for prior convictions. (See also Blakely v. Washington (2004)542 U.S. 296, 301; Cunningham, supra, 549 U.S. at p. 288.) In Cunningham, the high court concluded that because California’s determinate sentencing law (DSL) “authorizes the judge, not the jury, to find the facts permitting an upper term sentence, the system cannot withstand measurement against our Sixth Amendment precedent.” (Cunningham, supra, at p. 293, fn. omitted.) The court held that the middle term in California’s DSL was the relevant statutory maximum for the purpose of applying Apprendi and its progeny.
In response to Cunningham, the California Legislature passed Senate Bill No. 40, signed by the Governor as an emergency measure effective March 30, 2007, which amended section 1170 so as to eliminate the presumptive middle term in the triad of sentencing options available. Instead, section 1170 now provides that the trial court has discretion to select the upper, middle or lower term. But this urgency legislation failed to amend section 1170.1, subdivision (d), which establishes the same middle term presumption for enhancements that the former section 1170, subdivision (b) did for criminal offenses. This provision suffers from the identical constitutional infirmities identified by the United States Supreme Court in Cunningham and is similarly unconstitutional. (People v. Lincoln (2007) 157 Cal.App.4th 196, 205.) The Legislature has not yet amended it to comply with the Sixth Amendment, and the California Supreme Court did not reform it in Sandoval, supra, 41 Cal.4th at pages 843 through 852. It therefore appears that the trial court imposed the upper term sentence on the firearm-use enhancement erroneously relying on the discretion given by Senate Bill No. 40 which is inapplicable to enhancement sentencing. We must therefore determine whether that error was harmless.
Section 1170, subdivision (b), as amended, now provides: “When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court.... The court shall select the term which, in the court’s discretion, best serves the interests of justice. The court shall set forth on the record the reasons for imposing the term selected....”
Section 1170.1, subdivision (d) provides: “If an enhancement is punishable by one of three terms, the court shall impose the middle term unless there are circumstances in aggravation or mitigation....”
Senate Bill No. 150 (2009-2010 Reg. Sess.) is now pending to amend section 1170.1 in a manner similar to the amendment to section 1170 made by Senate Bill No. 40.
Had the trial court properly exercised its discretion under Senate Bill No. 40, its application to offenses occurring before its enactment would not violate the ex post facto prohibition. (Sandoval, supra, 41 Cal.4th at pp. 854-855.)
Denial of a right to a jury trial on aggravating circumstances is reviewed under the harmless error standard set forth in Chapman v. California (1967) 386 U.S. 18, 24. (Sandoval, supra, 41 Cal.4th at p. 838.) 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.)
In People v. Black (2007) 41 Cal.4th 799 (Black), the California Supreme Court reasoned that “as 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, any additional factfinding engaged in 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.) “[I]f one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not ‘legally entitled’ to the middle term sentence, and the upper term sentence is the ‘statutory maximum.’” (Id. at p. 813.) “By the same reasoning, if 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. (Sandoval, supra, 41 Cal.4th at p. 839.)
Here, the trial court based its decision to impose an upper term firearm-use enhancement on the fact that appellant was convicted of multiple gun offenses on different occasions. We need not speculate as to whether the jury would have found this factor to exist beyond a reasonable doubt because it necessarily made such findings. It found appellant guilty of the April 10, 2005 manslaughter shooting and the firearm enhancement in connection with that offense to be true. It also found him guilty of the gun-related charges committed on May 13, 2005. The aggravating factor upon which the trial court relied in imposing the upper term of the firearm enhancement was therefore found by the jury beyond a reasonable doubt. Thus, one aggravating circumstance was established in accordance with the constitutional requirements set forth in Apprendi and its progeny, making the upper term sentence the statutory maximum.
We agree with respondent that a remand for resentencing is unwarranted as it is not reasonably probable that the trial court would impose a different sentence. It imposed the upper term based upon its finding that appellant committed two separate gun crimes. (See People v. Bravot (1986) 183 Cal.App.3d 93, 98.) A single factor in aggravation can support an upper term sentence. (People v. Osband (1996) 13 Cal.4th 622, 728; People v. Williams (2009) 170 Cal.App.4th 587, 642.)
DISPOSITION
The judgment is affirmed.
We concur: BOREN, P. J., CHAVEZ, J.