Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. SWF017845, John J. Ryan, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed in part and reversed in part with directions.
Cathryn E. Lintvedt, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Gil Gonzalez and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI, J.
Defendant Paul Edward Gonzales, Jr., pled guilty to possession of a firearm (Pen. Code, § 12021, subd. (e)) (count 1); being an active gang member in possession of a concealed firearm (§ 12025, subd. (b)(3)) (count 2); and possession of a concealed firearm (§ 12025, subd. (b)(6)) (count 3). He also admitted that counts 1 and 3 were committed for the benefit of, at the direction of, and in association with a criminal street gang (§ 186.22, subd. (b)) and that he had sustained three prior strike convictions (§§ 667, subds. (c), (e)(2)(A), 1170.12, subd. (c)(2)(A)) as a juvenile. In exchange, the trial court dismissed two of defendant’s prior strike convictions and sentenced defendant to 10 years in state prison. On appeal, defendant contends (1) the use of his prior juvenile adjudication as a strike was unconstitutional under Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435, 120 S.Ct. 2348] (Apprendi); and (2) one of his two convictions for violating section 12025 should be vacated. We agree with the parties that count 3 should be stricken, as defendant committed only one violation of section 12025. We reject defendant’s remaining contention.
All future statutory references are to the Penal Code unless otherwise stated.
I
The factual background is taken from the preliminary hearing transcript.
On July 16, 2006, Hemet Police Officer Donald Brokaw responded to a dispatch call of a man with a gun in the 1200 block of East Florida Avenue. When the officer arrived at the area, he contacted defendant, who was in possession of a loaded nine-millimeter handgun.
After waiving his constitutional rights, defendant said he was carrying the weapon for protection, as earlier in the day he had been approached by two Crips gang members. Defendant claimed to have purchased the gun from a man named “David” 15 minutes before he was stopped by the officer. Defendant further stated that he had been “jumped out” of the Westside Rivas gang. He also said that he was required to register as a gang member because of his prior robbery conviction.
II
DISCUSSION
A. Use of Prior Juvenile Adjudication as Strike
Defendant argues that the use of his prior juvenile adjudication to increase his sentence under the three strikes law violates the United States Supreme Court’s holdings in Apprendi, supra, 530 U.S. 466 and Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403, 124 S.Ct. 2531] because he had no right to a jury trial in the prior juvenile proceeding.
While this appeal was pending, our Supreme Court issued its opinion in People v. Nguyen (2009) 46 Cal.4th 1007, holding the right to a jury trial recognized in Apprendi “does not... preclude the use of a prior juvenile adjudication of criminal misconduct to enhance the maximum sentence for a subsequent adult felony offense by the same person.” (Nguyen, at p. 1028.)
Nguyen fully disposes of defendant’s first claim of error on appeal. Accordingly, we need not belabor this issue.
B. Convictions Under Section 12025
In relevant part, the information charged defendant in count 2 with being an active gang member in possession of a concealed firearm in violation of section 12025, subdivision (b)(3). In count 3, defendant was charged with possession of a loaded, concealed firearm, in violation of section 12025, subdivision (b)(6). Defendant pled guilty to both counts, and the sentence as to both counts was stayed pursuant to section 654.
Defendant contends that because both counts 2 and 3 were based on the possession of the same concealed weapon and thus committed only one violation of section 12025, one of these counts should be vacated. The People correctly concede.
Defendant also contends that if this court concludes the issue has been waived by his trial counsel’s failure to object, then his counsel rendered ineffective assistance by failing to preserve the issue. Because we address defendant’s claim on the merits, we need not address this related claim.
The crime of carrying a concealed weapon is defined in section 12025, subdivision (a). A violation of section 12025, subdivision (a) is a misdemeanor unless one of the sentencing factors set forth in section 12025, subdivision (b), paragraphs (1) through (6) elevates the crime to a felony. Relevant here, subdivisions (b)(3) and (b)(6) state:
“(b) Carrying a concealed firearm in violation of this section is punishable, as follows: [¶]... [¶]
“(3) Where the person is an active participant in a criminal street gang, as defined in subdivision (a) of Section 186.22, under the Street Terrorism Enforcement and prevention Act... as a felony. [¶]... [¶]
“(6) By imprisonment in the state prison, or by imprisonment in a county jail not to exceed one year, by a fine not to exceed one thousand dollars ($1,000), or by both that fine and imprisonment if both of the following conditions are met:
“(A) Both the pistol, revolver, or other firearm capable of being concealed upon the person and the unexpended ammunition capable of being discharged from that firearm are either in the immediate possession of the person or readily accessible to that person, or the pistol, revolver, or other firearm capable of being concealed upon the person is loaded as defined in subdivision (g) of Section 12031.
“(B) The person is not listed with the Department of Justice pursuant to paragraph (1) of subdivision (c) of Section 11106, as the registered owner of that pistol, revolver, or other firearm capable of being concealed upon the person.”
As the parties point out, the gang member status referred to in section 12025, subdivision (b)(3) and the loaded weapon status referred to in subdivision (b)(6) are sentencing factors that serve to elevate the offenses from misdemeanors to felonies. In other words, they are not elements of the offense of carrying a concealed firearm as provided in section 12025, subdivision (a). (See People v. Reed (2006) 38 Cal.4th 1224, 1235; People v. Hall (1998) 67 Cal.App.4th 128, 135 [“The crime of carrying a concealed weapon within a vehicle is defined in [section 12025,] subdivision (a)(1). The prior conviction referred to in [section 12025,] subdivision (b)(1) is simply a sentencing factor which serves to elevate the offense from misdemeanor to felony; the prior conviction is not an element of the offense of carrying a concealed firearm within a vehicle proscribed in section 12025.”].) Accordingly, defendant can only be convicted of one violation of section 12025, subdivision (a), as defendant’s possession of a concealed weapon in counts 2 and 3 arose from the same fact of defendant possessing only one concealed handgun. Defendant’s conviction in count 3, which carries a potentially lesser penalty, should therefore be stricken.
III
DISPOSITION
The trial court is directed to strike count 3. The trial court is also directed to amend the abstract of judgment and its minute order so as to reflect this modification and to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. (§§ 1213, 1216.) In all other respects, the judgment is affirmed.
We concur: McKINSTER, Acting P.J., KING, J.