Opinion
NOT TO BE PUBLISHED
Super. Ct. No. SF102429A
ROBIE, J.
Defendant Judah Titus Johnson was convicted of unlawfully taking or driving a vehicle (Veh. Code, § 10851, subd. (a) (section 10851(a))) and receiving that same vehicle as stolen property (Pen. Code, § 496d, subd. (a) (section 496d(a))). The trial court imposed the upper term of three years for the violation of section 10851(a), doubled to six years for a prior strike conviction, imposed the upper term of three years for the violation of section 496d(a), double to six years for a prior strike conviction, stayed pursuant to Penal Code section 654, and imposed two consecutive terms of eight months each for two other cases in which defendant had violated probation.
On appeal, defendant contends the trial court erred in admitting certain “other crimes” evidence. He also contends he could not be convicted of unlawfully taking or driving a vehicle and receiving the same vehicle as stolen property, and the trial court erred by failing to give a unanimity instruction regarding the charge of unlawfully taking or driving a vehicle. Finally, he contends the trial court erred in imposing the upper term based on an inappropriate aggravating circumstance, namely, a single prior conviction.
We find no error in the trial court’s evidentiary rulings that were properly preserved for appellate review, and -- construing defendant’s conviction for violating section 10851(a) as a conviction for posttheft driving -- we conclude that both of defendant’s convictions may stand. We also find no prejudicial error in the trial court’s failure to give a unanimity instruction. We do, however, agree that the trial court erred in imposing an upper term based on a single prior conviction for drug possession, and we will therefore vacate defendant’s sentence and remand the case for resentencing.
FACTUAL AND PROCEDURAL BACKGROUND
Because defendant’s prior convictions are critical to some of the issues on appeal, we begin with them. In November 2001, defendant was convicted of misdemeanor vandalism and placed on three years’ probation. In February 2004, defendant was convicted of willfully discharging a firearm in a grossly negligent manner -- a felony -- and placed on five years’ probation (case No. SF090962A). In October 2004, defendant was convicted possessing a controlled substance -- another felony -- and was placed on probation under Proposition 36. In December 2005, defendant was convicted of unlawfully taking or driving a vehicle -- also a felony -- and sentenced to two years in prison, but the sentence was suspended and he was placed on five years’ probation (case No. SF098742A).
After three probation violations, defendant was removed from Proposition 36 probation and placed on informal probation with 120 days in jail.
We turn now to the facts underlying defendant’s current offenses. On November 14, 2006, around 10:00 p.m., Jose Salazar was stopped at a stop sign in his brother’s Ford Explorer when two men pulled him out of the vehicle and took it from him at knifepoint.
About 8:30 a.m. the next morning, Stockton Police Officer Michael Perez, who was working auto thefts, went to the parking lot in the area of the Motel 6 and the Jack in the Box restaurant on Charter Way to look for stolen cars. There, Officer Perez discovered the stolen Explorer. About an hour later, Officer Perez returned to the parking lot with other officers to conduct surveillance on the vehicle. Around 10:15 a.m., Officer Perez saw two or three people walking from the area of the motel toward the area of the stolen Explorer. A minute or two later, the vehicle left the parking lot. Defendant was driving. Officers followed the Explorer for a short period before conducting a traffic stop. Defendant and the two other occupants of the vehicle (both women) were detained, and Officer Perez picked up Salazar to see if he could identify defendant as one of the carjackers. He could not; in fact, Salazar said that defendant “was not the person [who] took his car.”
Defendant and one of the other occupants of the Explorer -- his wife, Shante Galdon -- were charged by information with unlawfully taking or driving the Explorer and with receiving it as stolen property. The information also included a carjacking charge against Galdon relating to another incident. On defendant’s motion, the charges against the two defendants were severed for trial. Thus, when the case came to trial in April 2007, defendant faced one count of unlawfully taking or driving a vehicle and one count of receiving the vehicle as stolen property. The second amended information also alleged that defendant had a prior conviction for unlawfully taking or driving a vehicle and a prior strike conviction (discharging a firearm).
This exposed defendant to imprisonment for two, three, or four years for his second conviction. (Pen. Code, § 666.5, subd. (a).)
A jury found defendant guilty of both counts. Ultimately, defendant admitted the strike allegation in exchange for dismissal of the allegation that he had a prior conviction for unlawfully taking or driving a vehicle. Meanwhile, the court -- which had treated the trial as a formal probation revocation hearing in both of defendant’s prior cases (cases Nos. SF090962A and SF098742A) -- found defendant in violation of probation in each case. At sentencing in June 2007, the court gave defendant an aggregate term of seven years four months in prison in all three cases. We will discuss the sentencing hearing in more detail below.
DISCUSSION
I
“Other Crimes” Evidence
Before trial, defendant filed a motion in limine requesting (among other things) “[t]hat no reference be made to the fact of prior convictions or of other alleged criminal conduct not forming the basis of a charge filed herein. Evidence Code § 1101(a).” For their part, the People filed a motion for “permission to introduce evidence in their case in chief that the Defendant committed similar acts of auto theft . . . for the purpose of establishing common plan and specific intent, both of which [are] encompassed by Evidence Code Section 1101(b).” Specifically, the People sought to offer evidence of an incident in December 2005, a year before the charged incident, in which defendant was found driving a vehicle that had been carjacked and for which defendant was convicted of unlawful taking or driving of a vehicle. The People also sought to offer evidence they alleged tied defendant to two other carjacked vehicles that were found in the same parking lot where defendant was first seen driving the stolen Explorer, as well as evidence that defendant was seen near a location where his wife was found driving a carjacked vehicle in December 2005.
During argument on the People’s motion, the prosecutor withdrew his request to offer evidence of the incident in December 2005 involving defendant’s wife. The following day, the court ruled that the evidence that allegedly tied defendant to the two other carjacked vehicles in the same parking lot would not be admitted, but the People would be allowed to offer evidence of the incident that resulted in defendant’s prior conviction for unlawful taking or driving of a vehicle. With regard to that incident, the court concluded it was similar enough to the charged incident to prove defendant’s intent because in both cases defendant was stopped while driving a stolen car and told officers he had gotten the car from someone he knew and did not know it was stolen. The court further concluded that the probative value of the prior incident outweighed its prejudicial effect. The court specifically stated that it was not going to allow evidence of “the carjacking portion of [the earlier] offense,” but only evidence that “a vehicle was stolen on this date, on this date [defendant] was arrested driving it, his statement, and those things that go towards the knowledge and intent.”
During their case-in-chief, the People offered evidence of the incident underlying defendant’s prior conviction for unlawful taking or driving of a vehicle.
Defendant testified on his own behalf and was his only witness. Thereafter, the People called as a rebuttal witness Stockton Police Officer Michael Perez, who was one of the officers who arrested defendant for the current incident. During cross-examination of Officer Perez, defense counsel elicited his testimony that he had not recorded his interview with defendant following defendant’s arrest, but he had recorded an interview with defendant’s wife, as well as an interview with “Money One” -- the person from whom defendant said he got the stolen Explorer.
On redirect, the prosecutor sought to elicit an explanation from Officer Perez about why he had recorded his interview with defendant’s wife. Specifically, the prosecutor asked, “what were the circumstances of that case that made you record that statement?” Defense counsel offered an unspecified objection, which the trial court overruled, and Officer Perez explained that he recorded his interview of defendant’s wife because she had been identified by a victim as being the carjacker of “another vehicle that had been carjacked and parked in the similar location.” Officer Perez then proceeded to testify, without objection, that “there were two or three vehicles -- stolen vehicles and carjacked vehicles at that location, the Jack-In-The-Box parking lot.” He then clarified, again without objection, that “three vehicles that were reported carjacked recovered at that parking lot. Not actually recovered there, but two of them recovered there and then the third one they were driving.” When the prosecutor asked Officer Perez, “during what time frame did you find these three cars in that parking lot?” defense counsel asserted a relevance objection, which the court sustained. There was no further testimony after that.
On appeal, defendant first contends the trial court “abused its discretion under Evidence Code section 352 in admitting evidence of the identification of [his] wife as a carjacker.” This argument is based on Officer Perez’s testimony that defendant’s wife was identified as the carjacker of one of two other carjacked vehicles found in the Jack in the Box parking lot.
We reject defendant’s argument on this point because he failed to properly preserve the issue for appeal. Evidence Code section 353 provides that “[a] verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless: [¶] (a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion.” (Italics added.) “‘Specificity is required both to enable the court to make an informed ruling on the motion or objection and to enable the party proffering the evidence to cure the defect in the evidence.’” (People v. Boyette (2002) 29 Cal.4th 381, 424, quoting People v. Mattson (1990) 50 Cal.3d 826, 854.)
Here, defendant offered an unspecified objection to the prosecutor’s question about the circumstances that made Officer Perez record his interview with defendant’s wife. Defendant now argues that the trial court abused its discretion under Evidence Code section 352 in overruling this objection because the resulting testimony was “too prejudicial to be admitted.” In the absence of a specific objection on the grounds set forth in Evidence Code section 352, however, the issue is not preserved for appellate review. (See People v. Kirkpatrick (1994) 7 Cal.4th 988, 1014-1015)
Defendant next argues that “the trial court committed reversible error when it allowed the prosecution to admit the evidence, pursuant to Evidence Code section 1101(b), that [he] was arrested driving a vehicle that had been carjacked.” Again, we disagree.
“The admissibility of other crimes evidence depends on (1) the materiality of the facts sought to be proved, (2) the tendency of the uncharged crimes to prove those facts, and (3) the existence of any rule or policy requiring exclusion of the evidence.” (People v. Carpenter (1997) 15 Cal.4th 312, 378-379.) As explained above, the trial court here admitted evidence that defendant was found driving another vehicle that had been carjacked a year before the charged incident because that evidence was relevant to the issue of “knowledge and intent.” Here, whether defendant knew the car he was driving was stolen and thus whether he intended to deprive the owner of his or her possession or ownership of the car was a material issue in the case, especially given defendant’s statement to police that he did not know the car was stolen. The question is whether the facts of the prior incident in December 2005 tended to prove defendant’s knowledge and intent in the charged incident in November 2006.
“‘The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent.’ [Citation.] ‘In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant “‘probably harbor[ed] the same intent in each instance.’”’” (People v. Carpenter, supra, 15 Cal.4th at p. 379.)
As the Supreme Court concluded in Carpenter, we conclude here that “[t]he similarities among the crimes easily meet the standard needed to show intent.” (People v. Carpenter, supra, 15 Cal.4th at p. 379.) As the People explained in their motion in limine, when he was caught driving the stolen vehicle in the current incident, defendant claimed that minutes before the traffic stop, an acquaintance of his known as “Money One” had given him permission to use the car, and he claimed he did not know the car was stolen. Similarly, when he was stopped while driving the stolen car in the prior incident, he told the police he received the car from a friend named Lloyd, and again he claimed he did not know the car was stolen. Given the similarity of the excuses defendant offered in both incidents, we agree with the trial court that the prior incident was sufficiently like the current incident to support a reasonable inference that defendant probably knew the cars were stolen in both cases.
As for defendant’s argument that the evidence of the prior incident was unduly prejudicial because it “unquestionably reflected a predisposition on [his] part to engage in carjackings,” the following passage from Carpenter adequately answers that argument: “Evidence of uncharged crimes is inherently prejudicial but may still be admitted if it has substantial probative effect. [Citation.] The matter lies within the discretion of the trial court. [Citation.] The ruling here was well within the [trial] court’s discretion. . . . The court properly found that the probative value of the evidence on intent . . . outweighed the potential for prejudice.” (People v. Carpenter, supra, 15 Cal.4th at p. 380.)
We further note that, contrary to defendant’s argument, the evidence of the prior incident here did not tend to show a disposition on defendant’s part to engage in carjackings; what it showed was a disposition to drive cars he knew were stolen.
For the foregoing reasons, we reject defendant’s arguments that the trial court erred in admitting the “other crimes” evidence.
II
Propriety Of Defendant’s Convictions For Unlawfully Taking Or Driving A Vehicle And For Receiving That Same Vehicle As Stolen Property
Defendant contends he could not lawfully be convicted of violating section 10851(a) and section 496d(a) in connection with the same stolen vehicle. We disagree.
“Subdivision (a) of Vehicle Code section 10851 . . . defines the crime of unlawful driving or taking of a vehicle.” (People v. Garza (2005) 35 Cal.4th 866, 871.) “[A] defendant convicted under section 10851(a) of unlawfully taking a vehicle with the intent to permanently deprive the owner of possession has suffered a theft conviction and may not also be convicted under section 496(a) of receiving the same vehicle as stolen property. On the other hand, unlawful driving of a vehicle is not a form of theft when the driving occurs or continues after the theft is complete . . . . Therefore, a conviction under section 10851(a) for posttheft driving is not a theft conviction and does not preclude a conviction under section 496(a) for receiving the same vehicle as stolen property.” (Garza, at p. 871.)
Garza involved the general Penal Code receiving stolen property statute -- section 496 -- rather than the more specific statute at issue here -- section 496d. This is a distinction without a difference because the provision in Penal Code section 496, subdivision (a), “no person may be convicted both pursuant to this section and of the theft of the same property” simply “codifies a common law rule prohibiting separate convictions of the same person for stealing and receiving the same property.” (People v. Garza, supra, 35 Cal.4th at p. 871.)
In determining whether a defendant’s conviction for violating section 10851(a) was “for a theft or a nontheft offense,” “we begin with the presumption that [the] dual convictions--for unlawful taking or driving under section 10851(a) and for receiving stolen property under section 496(a)--are valid; we will set aside either or both of the convictions only if [the] defendant has affirmatively shown prejudicial error amounting to a miscarriage of justice.” (People v. Garza, supra, 35 Cal.4th at p. 881.)
When there is substantial evidence from which a jury could find either that the defendant unlawfully took a vehicle, or that the defendant unlawfully drove the vehicle, and the People refuse to elect to proceed exclusively on an unlawful driving theory, the trial court has a duty to instruct the jury sua sponte that it cannot convict the defendant both for taking the vehicle and for receiving the vehicle as stolen property. (See People v. Strong (1994) 30 Cal.App.4th 366, 376; People v. Garza, supra, 35 Cal.4th at p. 881.) The failure to give such an instruction is harmless error, however, unless the defendant shows that “it is reasonably probable that a properly instructed jury would have reached a result more favorable to [him] by not convicting him of violating both section 10851(a) and section 496(a).” (Garza, at p. 882.)
Here, even if we assume there was substantial evidence to support a jury finding that defendant unlawfully took the Explorer, any error in failing to instruct the jury as set forth above was unquestionably harmless. “Defendant was indisputably driving the [stolen vehicle] when he was arrested. Moreover, no reasonable juror could have found that at the time, defendant was still engaged in the original taking. Thus, even if the jury had been properly instructed, it could and would have entered the same verdict.” (People v. Strong, supra, 30 Cal.App.4th at p. 376.) Under these circumstances, we conclude that it is not reasonably probable that a properly instructed jury would have found defendant guilty of violating section 10851(a) by stealing the car but not by posttheft driving. Accordingly, we may uphold both convictions by construing defendant’s conviction under section 10851(a) as a nontheft conviction for posttheft driving. (People v. Garza, supra, 35 Cal.4th at p. 882.)
Defendant’s other challenge to his convictions is based on the trial court’s failure to give a unanimity instruction with regard to the charged violation of section 10851(a). He contends that by failing to instruct the jury that it had to unanimously agree on whether he took the vehicle or drove the vehicle, the trial court committed reversible error. We disagree.
“It is well established that the entire jury must agree upon the commission of the same act in order to convict a defendant of the charged offense.” (People v. Muniz (1989) 213 Cal.App.3d 1508, 1517.) “When a defendant is charged with a single [crime] but the evidence reveals more than one [criminal] act, the prosecution must either select the particular act upon which it relies to prove the charge or the jury must be instructed that it must unanimously agree beyond a reasonable doubt that defendant committed the same specific criminal act. [Citations.] The unanimity requirement is constitutionally rooted in the principle that a criminal defendant is entitled to a verdict in which all 12 jurors concur, beyond a reasonable doubt, as to each count charged.” (People v. Brown (1996) 42 Cal.App.4th 1493, 1499-1500; see Cal. Const., art. I, § 16.)
Assuming for the sake of argument that a unanimity instruction should have been given, the failure to do so was harmless beyond a reasonable doubt under the circumstances of this case. (See People v. Deletto (1983) 147 Cal.App.3d 458, 470-473.) For the failure to give a unanimity instruction to be prejudicial, there must exist a realistic possibility that in the absence of that instruction one or more jurors based their verdict on one act while the other jurors based their verdict on the other act. That is simply not the case here. As we have noted, defendant was indisputably driving the stolen vehicle when he was arrested. His only defense to the charge of unlawfully driving the vehicle was that he did not know it was stolen and therefore did not have the intent to deprive the owner of possession. Thus, for a juror to have found defendant guilty of unlawfully taking the vehicle but not guilty of unlawfully driving the vehicle, the juror would have had to believe that defendant took the vehicle, but the next day, when found driving it, did not know it was stolen. That is simply not a realistic possibility. Where, as here, “[i]n order to conclude the instructional error was prejudicial, we would have to abandon common sense,” the failure to give a unanimity instruction may be deemed harmless beyond a reasonable doubt. (Deletto, at p. 473.)
III
Sentencing
All three cases came on for sentencing in June 2007. In the current case, the court found there were no mitigating circumstances and found that defendant’s three prior felony convictions were aggravating circumstances. Accordingly, the court sentenced defendant to the upper term of three years on the charge of unlawfully taking or driving a vehicle, doubled to six years based on the prior strike conviction. The court imposed the same sentence on the charge of receiving stolen property, but stayed that sentence pursuant to Penal Code section 654. The court vacated the previously imposed two-year sentence in case No. SF098742A and imposed a consecutive term of eight months (one-third the midterm). The court then imposed a two-year midterm sentence in case No. SF090962A, but ordered that sentence to run concurrently. Thus, defendant received an aggregate term of six years eight months in prison.
Defense counsel argued that the court was obliged under the strike law -- specifically, Penal Code section 1170.12, subdivision (a)(6) -- to run the sentences in all three cases consecutively, rather than running the sentence in case No. SF090962A concurrently. Defense counsel further argued that if the sentences in all three cases were run consecutively, then the trial court was “violating the dual use of facts rule by both giving [defendant] an aggravated term and running consecutive sentences.” Essentially defense counsel’s position was that since defendant would be receiving consecutive sentences in the two cases in which he violated probation, that “would leave only one [felony] conviction” -- the drug possession offense -- for the court to use as an aggravating circumstance, which would not be permissible.
After consulting the “three strikes sentencing book,” the court agreed that it had to run the sentences in all three cases consecutively. The court disagreed, however, that it was making “dual use of the same fact.” In the court’s view, any one of defendant’s three prior convictions would qualify as an aggravating circumstance. Accordingly, the court altered its original sentence by imposing a consecutive term of eight months (one-third the midterm) in case No. SF090962A, for an aggregate term of seven years four months.
On appeal, defendant renews his argument that the trial court could not lawfully use “the two prior felony convictions for which consecutive sentences were imposed” to justify the upper term because that “would be a dual use of facts,” in violation of Penal Code section 1170, subdivision (b). He then argues again that his one remaining felony conviction could not support imposition of the upper term because the rule that identifies aggravating factors the court can use to impose an upper term -- rule 4.421 of the California Rules of Court -- refers to a defendant’s “prior convictions” being “numerous or of increasing seriousness.” (See Cal. Rules of Court, rule 4.421(b)(2).) According to defendant, “one conviction cannot be either numerous or of increasing seriousness, and thus [cannot be] an aggravating factor.”
The People do not deny that because the trial court imposed consecutive sentences in the current case for two of defendant’s three prior convictions, the court was foreclosed from relying on those convictions as aggravating circumstances justifying imposition of the upper term. This follows from subdivision (b) of Penal Code section 1170, which provides in relevant part that “[t]he court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law.” It has long been understood that a consecutive sentence is an “enhancement” within the meaning of this provision and therefore “the same facts may not be used to impose the aggravated term and also used to impose consecutive sentences.” (People v. Ratcliffe (1981) 124 Cal.App.3d 808, 821.)
Here, the trial court determined that consecutive sentences for the cases in which defendant violated probation were required by subdivision (a)(6) of Penal Code section 1170.12, which provides that “[i]f there is a current conviction for more than one felony count not committed on the same occasion, and not arising from the same set of operative facts, the court shall sentence the defendant consecutively on each count pursuant to this section.” Applying this provision, the trial court imposed consecutive sentences on defendant because of the fact of his two prior convictions, and therefore the court could not use those same convictions to impose the upper term.
In applying this provision to defendant, the trial court necessarily concluded that his convictions in the two prior cases were “current” convictions within the meaning of this statute, presumably because sentence was being imposed on those convictions at that time. This conclusion was erroneous. In People v. Rosebury (1997) 15 Cal.4th 206, interpreting identical language in subdivision (c)(6) of Penal Code section 667, our Supreme Court concluded that when a defendant is sentenced on a probation violation in a case under the strike law, he is not being sentenced on a “current conviction” because the conviction occurs “‘when guilt is established, either by plea or verdict.’” (Rosebury, at p. 210.) Under Rosebury, defendant’s convictions in cases Nos. SF090962A and SF098742A were prior convictions, not current convictions, in the present case, and therefore the trial court was not obliged to impose consecutive sentences for those convictions. On appeal, defendant has not raised any claim of error regarding this aspect of the trial court’s ruling -- perhaps because his trial counsel invited that error by arguing to the trial court that it was obligated to impose consecutive sentences on the probation violations -- and therefore we will not reverse the judgment based on this error. As will be seen, however, since we reverse the judgment on other grounds, the trial court will have the opportunity to correct this error on remand.
The question, therefore, is whether it was legally permissible for the trial court to impose the upper term on defendant based solely on the fact that he had one prior conviction for drug possession. On this point, the People contend that defendant’s “commission of an armed auto theft is more serious than his prior drug conviction, so his offenses are of increasing seriousness” and therefore the upper term was proper based on the aggravating circumstance identified in California Rules of Court, rule 4.421(b)(2). There are two problems with this argument. First, we have concluded already (at the People’s urging) that defendant’s conviction for violating section 10851(a) in this case must be construed as a conviction for posttheft driving of the stolen Explorer in order to support defendant’s conviction of receiving stolen property. Under these circumstances, the People cannot now be heard to argue that defendant was actually convicted of “an armed auto theft.” Thus, under the People’s suggested approach -- comparing the prior conviction to the current conviction -- the question would actually be whether unlawfully driving a stolen vehicle can be deemed more serious than unlawfully possessing a controlled substance. The problem with the People’s approach, however, is that California Rules of Court, rule 4.421(b)(2) refers to a defendant’s “prior convictions” being “numerous or of increasing seriousness.” By its use of the plural “convictions,” the rule specifically requires multiple prior convictions that are numerous or of increasing seriousness. Thus, a single prior conviction simply does not qualify under the plain language of the rule.
This means defendant’s single prior conviction for possession of a controlled substance cannot serve as an aggravating circumstance under California Rules of Court, rule 4.421(b)(2). Of course, this does not mean a single prior conviction can never serve as a valid aggravating circumstance. The list of aggravating circumstances in California Rules of Court, rule 4.421 is illustrative, not exclusive, “and the factors which the trial court is directed to consider in determining aggravation . . . of the crime ‘include “practically everything which has a legitimate bearing” on the matter in issue.’” (People v. Whitten (1994) 22 Cal.App.4th 1761, 1766.) We do believe, however, that the specification in California Rules of Court, rule 4.421(b)(2) that “prior convictions” that are “numerous or of increasing seriousness” can be used as an aggravating circumstance carries with it the negative implication that a single prior conviction normally cannot be used as an aggravating circumstance. If the Judicial Council had intended otherwise, we would expect it to have described the aggravating circumstance in California Rules of Court, rule 4.421(b(2) differently -- for instance, “The defendant has one or more prior convictions.”
It may be that in a proper case, a single prior conviction could be so significant that it could serve as a valid aggravating circumstance despite the negative implication arising from California Rules of Court, rule 4.421(b)(2). Where the circumstance in issue relates to the crime under consideration, that circumstance may be deemed aggravating “if it makes defendant’s conduct distinctively worse than it would otherwise have been.” (People v. Zamarron (1994) 30 Cal.App.4th 865, 872.) By the same logic, where the circumstance in issue relates to the defendant under consideration, that circumstance may be deemed aggravating if it makes the defendant distinctively worse than others convicted of the same crime. Thus, if a defendant’s single prior conviction is of such a nature that it makes the defendant distinctively worse than others convicted of the same crime, the conviction can validly serve as an aggravating circumstance. The negative implication from California Rules of Court, rule 4.421(b)(2), however, dictates that this conclusion is justified only in an unusual case.
This is not such a case. A single prior conviction for possession of a controlled substance, for which the defendant (at least initially) received probation under Proposition 36, is not so extraordinary that by itself it makes the defendant distinctively worse than other defendants convicted of unlawfully driving a stolen vehicle such that an upper term is justified. Accordingly, we conclude the trial court erred when it relied on defendant’s prior drug possession conviction alone to impose the upper term on defendant.
Because the court’s error was purely one of state law, the Watson harmless error test applies, and we ask whether it is reasonably probable that a result more favorable to defendant would have been reached if the court had known it could not rely on his prior drug possession conviction alone to impose the upper term. (See People v. Epps (2001) 25 Cal.4th 19, 29.) We find such a probability here. Defendant’s repeated probation violations (the probation report notes a total of five, not including defendant’s current offenses) could have served as an aggravating circumstance (see Cal. Rules of Court, rule 4.421(b)(5)), as could the fact that defendant was on probation when he committed the current crimes (see Cal. Rules of Court, rule 4.421(b)(4)), but the trial court did not rely on those circumstances and indeed went so far as to expressly state that the court was “not considering the violations of probation.” Also, by taking into account defendant’s first prior conviction -- for misdemeanor vandalism -- the court could have found that defendant had multiple prior convictions -- one for vandalism and one for drug possession -- and could have considered those convictions as “prior convictions . . . of increasing seriousness” under California Rules of Court, rule 4.421(b)(2). Again, however, the trial court did not do so. We are not persuaded the trial court would have chosen to rely on those circumstances had it known it could not rely solely on defendant’s prior drug conviction offense, particularly given the fact that the court originally tried to give defendant an aggregate term of six years eight months but ended up giving him an aggregate term of seven years four months based on defense counsel’s erroneous argument that the probation violation cases had to be sentenced consecutively. (See fn. 3, ante.) Thus, we conclude the trial court’s error was not harmless, and we will therefore remand the case for resentencing.
People v. Watson (1956) 46 Cal.2d 818.
We note that if the trial court on resentencing chooses to sentence one of the two probation violation cases concurrently, as it originally did, that will leave three prior convictions -- the vandalism conviction, the drug possession conviction, and one of the felony convictions on which defendant violated probation -- for the court to consider as an aggravating circumstance.
DISPOSITION
The judgment is affirmed, but the sentence is vacated and the matter is remanded to the trial court for resentencing in accordance with this opinion.
We concur: BLEASE, Acting P.J., SIMS, J.