Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F01338
RAYE , J.A jury found defendant Herbert Henry guilty of attempted murder (Pen. Code, §§ 664 and 187, subd. (a)), assault with a firearm (§ 245, subd. (a)(2)), and possession of a firearm by a convicted felon (§ 12021, subd. (a)(1)), and found true the special allegations of personal discharge of a firearm causing great bodily injury (§ 12022.53, subd. (d)) and personal use of a firearm (§§ 12022.5, subd. (a), 12022.53, subd. (b), 1203.06, subd. (a)(1)).
All further statutory references are to the Penal Code.
The court denied probation and sentenced defendant to an aggregate prison term of nine years plus 25 years to life.
On appeal, defendant contends his sentence for possession of a firearm by a convicted felon should have been stayed pursuant to section 654, and imposition of the upper term violated his Sixth and Fourteenth Amendment rights under Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham). We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On January 29, 2006, Eric Joe lent Leticia Johnson a blue cigarette lighter. When Joe asked for the lighter back, Johnson, who was sitting in defendant’s car, gave him a lighter that did not work. Joe said, “this is not my lighter,” and tossed it back into defendant’s car.
Defendant got out of the car and said, “Don’t throw shit in my car,” as he walked towards Joe with his fist balled up. Joe backed away, picked up an empty bottle, and threw it at defendant, missing his head. Defendant said, “Don’t be here when I get back,” then got into his car and left.
Defendant drove to his house, where he hastily rummaged through an armoire in one of the bedrooms, and then through a closet in an adjacent bedroom.
Defendant testified at trial that he was looking for a bottle of liquor he had hidden from his wife.
Meanwhile, Joe spent the next two hours smoking rock cocaine with a friend behind an apartment complex a short distance from where the argument had taken place. By the time he returned to the street, defendant’s car was again parked where it had been two hours earlier.
A man approached Joe asking for drugs. As Joe attempted to facilitate the drug deal, he turned and saw defendant pointing something at him. When Joe turned to run, defendant fired a gun, hitting Joe in the ear. Joe lay down on the ground, and defendant got into his car and drove away. Joe later identified defendant as the shooter in a photo lineup at the hospital, and again in person at trial.
Emmanuel Curry, who was driving in the area at the time of the shooting, testified that he saw defendant get out of his car and say, “Hold it. Hold it, man. I just want to apologize. I just want to apologize.” Curry heard two gunshots and then saw defendant pointing a gun at Joe. When defendant drove away, Curry heard him say, “[T]hat’s what you get for fucking with me.”
According to Johnson’s testimony at trial, defendant returned to the scene of the argument an hour and a half later, removed a revolver from the trunk of his car, and fired it in the air, saying, “[W]here that nigger at?” Defendant then drove the car around looking for Joe while Johnson slept in the backseat. When she awoke and asked defendant for a ride back “down there by Fruitridge,” defendant refused, saying he could not go back down there because he “just popped that nigger.”
Instead, defendant and Johnson went to a nearby church and ate breakfast. Defendant was very emotional, “crying like a baby.” When they finished eating, defendant dropped Johnson off near a motel in another part of town, telling her he would not take her any closer because he “popped that nigger.”
Defendant later turned himself in to his parole officer.
Police searched defendant’s home and found an unspent .38-caliber bullet and defendant’s California Department of Corrections parole card on the top shelf of the dresser. They also found a black gun case in a closet. The gun case contained ammunition but no gun.
Defendant was charged with attempted murder (count one), assault with a firearm (count two), and possession of a firearm by a convicted felon (count three). Special allegations included personal discharge of a firearm causing great bodily injury, personal use of a firearm, and a presumptive minimum jail time requirement.
A jury found defendant guilty of all charges, and found all of the special allegations true. Defendant moved for a new trial and for dismissal of count two. The court denied both motions.
The court sentenced defendant to the upper term of nine years as to count one, plus 25 years to life for the firearm enhancement; the upper term of four years as to count two plus 10 years for the firearm enhancement, both of which were stayed pursuant to section 654; and the middle term of two years as to count three to run concurrently with the sentence on count one.
Defendant filed a timely notice of appeal.
DISCUSSION
I
Defendant contends that because his possession of the gun was not “distinctly antecedent to and separate” from the shooting, section 654 prohibits separate punishment for the shooting and possession of a firearm by a convicted felon. We disagree.
Section 654, subdivision (a) provides: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other.”
“Whether a violation of section 12021, forbidding persons convicted of felonies from possessing firearms concealable upon the person, constitutes a divisible transaction from the offense in which he employs the weapon depends upon the facts and evidence of each individual case. [Citation.] Thus where the evidence shows a possession distinctly antecedent and separate from the primary offense, punishment on both crimes has been approved. [Citations.] On the other hand, where the evidence shows a possession only in conjunction with the primary offense, then punishment for the illegal possession of the firearm has been held to be improper where it is the lesser offense.” (People v. Venegas (1970) 10 Cal.App.3d 814, 821 (Venegas); accord, People v. Bradford (1976) 17 Cal.3d 8, 22 & People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1408-1409 (Ratcliff).)
We review for substantial evidence the trial court’s determination of whether the defendant held multiple criminal objectives. (People v. Simon (1989) 208 Cal.App.3d 841, 852.)
Defendant admitted he knew there were guns in the house long before the shooting, and although his parole agent asked him and his wife to “get rid of the gun,” he never confirmed whether or not his wife did so. Furthermore, according to Joe and several other witnesses, defendant engaged in an argument with Joe and told Joe he had better be gone when defendant returned. Defendant then went directly to his home and hurriedly rummaged through his armoire (where a .38-caliber bullet was later found) and a bedroom closet (where an empty gun case and ammunition were later found). We can infer from defendant’s immediate return to his house after threatening Joe that defendant was searching for and found the gun that he kept in his house. We can also infer that, during the remainder of the approximately two hours that elapsed between the argument and the shooting, defendant carried the gun with him, ultimately returning to the scene of the earlier argument and shooting Joe. “[A]n ex-felon who owns, possesses, or has custody or control of a firearm commits a felony” under section 12021, subdivision (a). (Ratcliff, supra, 223 Cal.App.3d at p. 1410.)
We conclude there is substantial evidence of possession antecedent to the shooting of Joe. (Venegas, supra, 10 Cal.App.3d at p. 821.)
II
Defendant also contends the trial court’s imposition of the upper term denied him his constitutional right to have a jury determine factors in aggravation, other than prior convictions, beyond a reasonable doubt. We disagree.
Applying the Sixth Amendment to the federal Constitution, the United States Supreme Court held in Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi) that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum must be tried to a jury and proved beyond a reasonable doubt. (Id. at p. 490.) For this purpose, the statutory maximum is the maximum sentence that a court could impose based solely on facts reflected by a jury’s verdict or admitted by the defendant; thus, when a sentencing court’s authority to impose an enhanced sentence depends upon additional fact findings, there is a right to a jury trial and proof beyond a reasonable doubt on the additional facts. (Blakely v. Washington (2004) 542 U.S. 296, 302-304 [159 L.Ed.2d 403] (Blakely).)
Accordingly, in Cunningham, supra, 166 L.Ed.2d 856, the United States Supreme Court held that by “assign[ing] to the trial judge, not to the jury, authority to find the facts that expose a defendant to an elevated ‘upper term’ sentence,” California’s determinate sentencing law “violates a defendant’s right to trial by jury safeguarded by the Sixth and Fourteenth Amendments.” (Cunningham, supra, 166 L.Ed.2d at p. 864, overruling on this point People v. Black (2005) 35 Cal.4th 1238, vacated in Black v. California (Feb. 20, 2007) ___ U.S. ___ [167 L.Ed.2d 36.) Thus, except for a prior conviction, any fact that increases the penalty for a crime beyond the middle term must be tried to the jury and proved beyond a reasonable doubt.
As pointed out in Apprendi, Blakely, and Cunningham, the Sixth Amendment jury-trial guarantee does not apply to prior convictions that are used to impose greater punishment. (See, e.g., Cunningham, supra, 166 L.Ed.2d at p. 864.)
The reasons underlying the exemption of prior convictions are as follows: (1) the fact of a prior conviction “‘does not relate to the commission of the offense’” for which the defendant is being sentenced (Apprendi, supra, 530 U.S. at p. 496), and (2) “the certainty that procedural safeguards attached to any ‘fact’ of prior conviction . . . mitigate[] the due process and Sixth Amendment concerns otherwise implicated in allowing a judge to determine a ‘fact’ increasing punishment beyond the maximum of the statutory range.” (Apprendi, at p. 488, fn. omitted].) It follows that the exception applies not only to the fact of a prior conviction, but also to “an issue of recidivism which enhances a sentence and is unrelated to an element of a crime.” (People v. Thomas (2001) 91 Cal.App.4th 212, 223.) Therefore, “‘the fact of a prior conviction,’ and related facts . . . may be judicially found at sentencing.” (U.S. v. Cordero (5th Cir. 2006) 465 F.3d 626, 632-633, fns. omitted.) The fact that defendant was on parole at the time of the offense has similarly been found to be a recidivism factor (arising from the fact of a prior conviction) upon which the trial court may rely to impose the upper term. (People v. Abercrombie (2007) 151 Cal.App.4th 585 [2007 Cal.App. LEXIS 863, *9]; cf. U.S. v. Corchado (10th Cir. 2005) 427 F.3d 815, 820 [“the ‘prior conviction’ exception extends to ‘subsidiary findings’ such as whether a defendant was under court supervision when he or she committed a subsequent crime”].)
Here, it was proper for the trial court to impose the upper term based on the fact that defendant was on parole at the time of the crime, an aggravating factor that did not have to be submitted to a jury. In any event, even if defendant’s status as a parolee should not have been used, we find such a mistake would be harmless beyond a reasonable doubt in light of the court’s reliance on defendant’s prior convictions. The trial court relied on defendant’s “prior criminal record [being] extensive.” We infer from that statement that the court was referring to the fact of defendant’s prior convictions, an aggravating factor that need not be submitted to a jury. We conclude there was no sentencing error.
DISPOSITION
The judgment is affirmed.
We concur: DAVIS , Acting P.J., MORRISON , J.