Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. TA083419, Arthur M. Lew, Judge. Affirmed with modifications.
Jean Ballantine, 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.
OPINION
FLIER, J.
Appellant Michael Bernard Lee was convicted of assault with a deadly weapon and related charges. He was sentenced to 20 years in state prison. On appeal, he raises these sentencing issues: (1) The same prior conviction cannot be used both for a prior prison enhancement under Penal Code section 667.5, subdivision (b) (§ 667.5(b)) and a prior serious felony enhancement under Penal Code section 667, subdivision (a)(1) (§ 667(a)(1)). (2) Imposition of the upper term violated his federal constitutional rights to a jury trial and to due process of law (U.S. Const., 6th & 14th Amends.), under Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856](Cunningham). (3) When the trial court imposed the upper term on the ground that appellant’s “record justifie[d] the high term,” it improperly used appellant’s four prior convictions both for separate sentence enhancements and for imposition of the upper term.
Further code references are to the Penal Code unless otherwise stated.
Respondent concedes the first sentencing issue, which requires a sentencing modification. We reject the other issues, and otherwise affirm.
PROCEDURAL HISTORY AND FACTS
The information alleged one count of assault with a deadly weapon, with an enhancement for personal infliction of great bodily injury. A 1983 robbery conviction was alleged as a prior strike, a prior prison conviction under section 667.5(b), and a prior serious felony conviction under section 667(a)(1). Three other prior prison convictions were also alleged under section 667.5(b): a 1986 conviction for grand theft; a 1990 conviction for petty theft with a prior conviction; and a 1994 conviction for possession for sale of marijuana.
According to the People’s evidence, appellant cursed and yelled during an argument with the elderly cashier of a small market. Bernard Griffin happened to be shopping in the store at the time. Griffin sometimes worked there, and was large in size. He tried to calm appellant down but ended up arguing with him. When it appeared that appellant was “going to throw a punch,” Griffin hit him. Appellant fell to the ground, stood up, and ran outside. Griffin finished his shopping and left the store. Appellant approached him and stabbed him, first in the shoulder, and then in the chest. When the police arrived, they went to appellant’s nearby apartment and found appellant and the bloody knife. Griffin’s wounds required stitches, left scars, and made it painful for him to raise his arm over his head.
On cross-examination, Griffin admitted that he had prior convictions for firearms possession and drug possession.
Appellant testified that there was no argument inside the store and he “cut” Griffin in self-defense, outside of the store, after Griffin inexplicably attacked him.
The jury found appellant guilty as charged, and found the prior convictions to be true.
Appellant represented himself at the proceedings below. At the sentencing hearing, he reminded the judge that his prior strike conviction was 23 years old and asked that the sentence be “as light as possible.” The prosecutor requested the maximum sentence of 20 years in prison. She argued that the upper term was appropriate based on the facts of the incident. The trial court first ruled that it was inappropriate to strike the strike conviction due to the circumstances of the offense. It then imposed a 20-year sentence based on this computation: (a) four-year upper term for assault with a deadly weapon, doubled for one strike; (b) three years for the great bodily injury enhancement; (c) five years for the prior conviction under section 667(a)(1); and (d) one year each for the four prior convictions under section 667.5(b).
As the reason for the upper term, the trial court stated: “Certainly his record justifies the high term of 8 years on count 1. I find no mitigating factors. And that certainly is an aggravating factor.”
DISCUSSION
1. The Erroneous Section 667.5(b) Enhancement
The parties agree that the one-year section 667.5(b) enhancement imposed for the 1983 robbery conviction must be stricken as the court used that same conviction for the five-year section 667(a)(1) enhancement. (People v. Jones (1993) 5 Cal.4th 1142, 1149.)
2. The Blakely/Cunningham Issue
Appellant contends that imposition of the upper term based on his “record” violated Cunningham, supra, 127 S.Ct. 856, and Blakely, supra, 542 U.S. 296. We do not agree. The jury trial principles discussed in Blakely and Cunningham apply to facts that increase the penalty, “ ‘[o]ther than the fact of a prior conviction.’ ” (Blakely, supra, 542 U.S. at p. 301; see also Cunningham, supra, 127 S.Ct. at p. 868.) In People v. Black (July 19, 2007, S126182) ___ Cal.4th ___ [2007 WL 2050875], the California Supreme Court recently authorized use of a defendant’s criminal history as a circumstance in aggravation. We therefore conclude that appellant’s recidivism constituted a permissible basis for the upper term here.
3. Was There an Impermissible Dual Use of Facts?
A separate issue is whether by imposing separate terms on each of the four prior convictions, and then basing the upper term on appellant’s “record,” the trial court improperly used the same fact for an enhancement and for the upper term. We had concerns about that problem, which was not initially raised, but has been addressed via supplemental briefing.
“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.” (§ 1170, subd. (b), italics added.)
“To comply with section 1170(b), a fact charged and found as an enhancement may be used as a reason for imposing the upper term only if the court has discretion to strike the punishment for the enhancement and does so.” (Cal. Rules of Court, rule 4.420(c).)
Respondent points out that a defendant waives any error in the trial court’s failure to properly make or articulate its discretionary sentencing choices by failing to object at the time of sentencing. (People v. Scott (1994) 9 Cal.4th 331, 353 (Scott).) Scott specifically applied that rule to issues regarding the statement of reasons for the upper term, including allegations that the trial court “double-counted a particular sentencing factor, . . .” (Ibid.)
Appellant maintains that the issue is cognizable on appeal, because there is an exception to the waiver or forfeiture principle that permits consideration of a sentencing issue, without an objection at the trial court level, if the issue involves a pure question of law, which is “correctable without reference to any factual issues in the record or remanding for further findings.” (People v. Smith (2001) 24 Cal.4th 849, 853; see also Scott, supra, 9 Cal.4th at p. 354.) Smith applied that exception to permit correction on appeal of an erroneous parole revocation fine.
Appellant also complains that he did not know that the trial court intended to base the upper term on his record as that was not the basis on which the prosecutor argued for the upper term.
Here, the upper term involved a discretionary sentencing choice that cannot be corrected without a remand for further findings. Under Scott, which we must follow, the lack of an objection precludes review of this issue. (Scott, supra, 9 Cal.4th at p. 353; Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
DISPOSITION
The case is remanded to the trial court with directions to strike one of the four one-year enhancements that were imposed under section 667.5(b) and to send to the Department of Corrections a corrected abstract of judgment. In all other respects, the judgment is affirmed.
We concur: COOPER, P. J., BOLAND, J.