Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Imperial County No. JCF21018, Matias R. Contreras, Judge. Affirmed.
HUFFMAN, J.
A jury convicted Martin Hernandez Guzman of receiving stolen property (Pen. Code, § 496, subd. (a)). The jury acquitted Guzman of burglary and could not reach a verdict on the remaining count, which was later dismissed. The court found allegations of three prison priors (§ 667.5, subd. (b)) to be true. Guzman was sentenced to the upper term of three years for receiving stolen property plus three one-year consecutive sentences for the prison priors.
All further statutory references are to the Penal Code unless otherwise specified.
Guzman appeals and challenges only his sentence. He contends the trial court erred in imposing the upper term for the offense. We will find the issue waived because it was never presented to the trial court. Even considering the merits of his contention we find no error in the selection of the upper term.
Since this appeal does not challenge the admissibility or the sufficiency of the evidence to support the conviction we will omit the traditional statement of facts.
After illegally entering the United States from Mexico, Guzman found himself alone and was "desperate" to obtain food and shelter and to call his sister in San Diego. In the process Guzman broke into a home where the resident was not in the house. There Guzman showered, took clothes, ate some food and then took money, coins, a camera and watches from the home. He then entered the garage and took an ATV he found there. He then abandoned the ATV a short distance from the house. Guzman was arrested by U.S. Border Patrol agents later that day. A search following arrest produced the items stolen from the victim's house.
The jury apparently accepted Guzman's claim of necessity and acquitted him of burglary, but convicted him of receiving stolen property.
At the sentencing hearing the probation officer recommended the upper term for the conviction. The trial court indicated its intention to follow the recommendation. Thereafter, counsel for both sides discussed the factors in aggravation and mitigation. During that discussion the prosecutor argued for the upper term sentence, but noted the trial court could not use the three prison priors to support an upper term if the court imposed a sentence on the prison prior enhancements. Following the argument, the trial court imposed the upper term relying principally on Guzman's lengthy criminal history, which spans 25 years and includes convictions other than those included in the three prison prior enhancements. No objection was raised by defense counsel to the trial court's sentencing choice or regarding the reasons stated by the court for selecting the upper term.
Guzman now contends the trial court impermissibly made a dual use of the convictions involved in three priors to support both the upper term and the three enhancements. Guzman argues such "dual use" violates section 1170, subdivision (b), and established case law. (People v. McFearson (2008) 168 Cal.App.4th 388.) The Attorney General responds that the issue has been waived since Guzman did not object to the court's stated reasons in the trial court, and even if not waived there was no impermissible dual use of facts.
Section 1170, subdivision (b), provides in pertinent part: "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 and the court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law."
We first address the question of waiver. The record reflects defense counsel was on notice at the outset of the sentencing hearing that the trial court was inclined to follow the probation report, which included reference to Guzman's dismal criminal history. While counsel discussed the factors in aggravation and mitigation at some length, there was never an objection to using Guzman's criminal history as a factor in aggravation. The arguments went to the weight of the competing factors, not their use. As our Supreme Court has noted, failure to make timely objections to the court's stated reasons for a sentencing choice constitutes a waiver of the issue. Timely objection is necessary to permit the trial court to correct any errors and such issues cannot be raised for the first time on appeal. (People v. Scott (1994) 9 Cal.4th 331, 351, 353.)
Even if we consider Guzman's contention on the merits we find no error by the trial court. It is well established that trial courts have broad discretion in making sentencing choices. (People v. Evans (1983) 141 Cal.App.3d 1019, 1022.) A single, valid factor in aggravation will support an upper term sentence. It is also clear that a trial court may not use the same facts to both select the upper term and to impose an enhancement for those facts. (§ 1170, subd. (b).)
Although the opening brief mentions Cunningham v. California (2007) 549 U.S. 270, Guzman does not argue that he was denied a jury trial on the factors used to aggravate his sentence.
Guzman seizes on a somewhat confusing statement by the trial court to argue the court used the prison prior convictions for dual purposes. The court said:
"Mr. Guzman, I think the case, when you look at it in totality, warrants the upper term. I think there is enough circumstances in aggravation, your past record exclusively, even the three felony convictions that you went to prison for, your past record is sufficiently lengthy to warrant some consideration as far as aggravating this case. You may be eligible for probation. But again, I think the circumstances surrounding this offense and your background doesn't warrant probation. [¶] I think the upper term is appropriate. The fact that you took advantage of this individual's home after you broke into it, I think that the upper term is warranted. I think that the prior prison terms have been proven. [¶] I'm going to order that you serve [the upper term] of three years in state prison. I'm going to order that you serve three years consecutive, one after the other, for a total of six years."
While it is unclear how the court was using the word "exclusively" and whether the court misspoke, or whether there was a reporting error, we do not interpret the remark, in the context of the entire sentencing hearing to mean the court was making an impermissible "dual use" of facts. The court made a number of earlier references to Guzman's lengthy criminal history. The experienced trial judge had also been told by the prosecutor that the prison priors could not be the basis of an upper term sentence as well as enhancements. It seems entirely clear from this record that the trial court was not basing the upper term decision on the three convictions that support the prison priors, but instead on the lengthy criminal history.
The probation report reflects that Guzman had a 25-year history of criminal conduct, which includes convictions for which he did not serve a prison term. The trial court was entitled to consider that entire criminal history as a factor in aggravation even though some of the convictions were also the basis of separate enhancements. (People v. Mendoza (1986) 183 Cal.App.3d 390, 403; People v. Hurley (1983) 144 Cal.App.3d 706, 709.) Accordingly, we find no error in the trial court's sentencing decision.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McCONNELL, P. J., IRION, J.