Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. Ct. No. BA283501 Robert J. Perry, Judge.
Joanna Rehm, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec, Lance E. Winters and Robert S. Henry, Deputy Attorneys General, for Plaintiff and Respondent.
ASHMANN-GERST J.
Defendant Jose Mayo, who was tried along with three codefendants, was convicted by a jury of five counts of robbery (counts 1-5) (Pen. Code, § 211); one count of attempted robbery (count 6) (§§ 664/211); and one count of second degree commercial burglary (count 7) (§ 459). With respect to counts 1 through 6, the jury found true the allegations that a principal was armed with a firearm within the meaning of section 12022, subdivision (a)(1) and that defendant personally used a firearm within the meaning of section 12022.53, subdivision (b). With respect to count 7 the jury found true the allegations that a principal was armed with a firearm within the meaning of section 12022, subdivision (a)(1) and that defendant personally used a firearm within the meaning of section 12022.5, subdivision (a).
All further statutory references are to the Penal Code unless otherwise indicated.
The trial court sentenced defendant to a total term of 23 years eight months in prison. The trial court chose count 1 as the base term and imposed the upper term of five years for the robbery and a consecutive 10 years for the personal firearm-use enhancement under section 12022.53, subdivision (b). The trial court imposed one year (one-third the midterm) in each of counts 2 and 3 as well as a consecutive three years four months (one-third of 10 years) for the personal firearm-use enhancements in each count. The trial court imposed concurrent sentences in counts 4 and 5, which consisted of the midterm of three years and 10 years for the personal firearm-use enhancement in each count. In count 6 the trial court sentenced defendant to a concurrent midterm of two years and 10 years for the personal firearm-use enhancement. The trial court ordered sentencing on count 7 to be stayed pursuant to section 654.
Defendant appeals on the grounds that: (1) the evidence is insufficient to support the jury’s true findings that defendant personally used a firearm in the commission of counts 4, 5, and 6, and the enhanced sentences in those counts violate his right to due process under the Fifth and Fourteenth Amendments; and (2) the trial court violated defendant’s right to a jury trial by imposing the upper term in count 1.
FACTS
I. Prosecution Evidence
On December 23, 2004, Dae Song (Song) was working as a knitting machine technician in the Wintex textile factory on 30th Street in Los Angeles. His office was in a corner of the factory. At approximately 6:45 p.m., Song noticed that it was unusually quiet outside his office on the factory floor. When he opened his door to look out, he saw two workers, Anselmo Flores (Flores) and Silvio Morales (Morales) on the ground. Flores was tied up, and Morales was being tied up with a gun held at his head. Two men were tying up Morales. One had a silver gun and the other a black gun. At trial Song identified codefendant Malaquias as the man with the silver gun. When asked who was using the black gun, Song identified defendant.
Song knew the gunmen had not seen him, and he closed and locked his office door. Because Song does not speak English, he used his cell phone to call a friend and ask him to call the police. Song thought it would be dangerous if he were later discovered by the gunmen, so he left his office after hiding his passport, keys and cell phone. He pretended he knew nothing and said, “Let’s go” as he left his office. Malaquias pointed his gun at Song and told him to get on the ground. Defendant was walking away in the direction of the factory’s 30th Street office where Song knew other Wintex staff members were located. After Song got on the ground with Flores and Morales, Malaquias put the silver gun to Song’s head. After being tied up, Song was searched by Malaquias. When Song tried to look up, Malaquias pushed Song’s head down with the gun. Song was on the ground for approximately seven minutes when Flores told him to get up because the police had arrived. While Song was on the ground he heard someone start the forklift.
When Song got up he saw defendant and Malaquias throw away their guns. Song did not see where the guns landed. The two gunmen were going out the door when they were caught by police. Four or five Latino males were also running outside the docking area.
Morales remembered seeing Malaquias enter the factory near the main dock area. Malaquias hit Morales with a gun and told him to lie down. Later Morales’s hands were bound by another intruder who arrived and whom Morales could not see. He did not know if the second intruder had a gun. Flores and an employee named Elecio Hernandez received the same treatment. Morales’s cell phone and wallet were taken. Morales remembered that when the gunmen saw Song, Malaquias pointed a gun at him. Song raised up his hands and “they” told him to go down on the floor.
Flores also remembered Malaquias pointing a silver gun at him. Malaquias put the gun towards Flores’s neck and took him to the area where his coworkers were on the ground. No one was yet tied up. After he got on the ground, another person came, and then everyone was tied up by one or the other of the two intruders. Flores did not see the second person’s face. Flores’s cell phone and wallet were taken. Flores heard the second person leave.
Jeff Kim (Jeff), the president of Wintex, was at his desk at approximately 6:45 p.m. on December 23, 2004. The Wintex factory was bordered on the North by 29th Street and on the South by 30th Street, where the front entrance and Jeff’s office were located. Wintex’s inventory of knit fabrics at the time of the robbery was worth more than $100,000. In the office adjacent to Jeff, the business manager, Jae Hwang (Hwang), and Jeff’s friend, Kyung Tae Kim (Kyung), were seated. A Hispanic gunman, whom Jeff identified at trial and in a field showup as defendant, entered Jeff’s office and told him to get up and walk out. In the adjacent office Jeff saw Kyung and Hwang and a man with a shotgun. Jeff and the other two men were ordered to the ground, and defendant took Jeff’s watch, cell phone, and wallet. All three men were bound, and Kyung and Hwang were also robbed. Defendant placed a gun to Jeff’s head. Defendant and his cohort left, and Jeff heard a helicopter soon afterwards. Jeff saw a loading truck outside the main dock of his warehouse after the incident. Jeff had not given anyone permission to park the truck there. A yellow truck that Jeff had never seen before was parked on 30th Street. The white truck and the yellow truck were both impounded.
Officer Victor Gamboa of the Los Angeles Police Department was dispatched to the Wintex Company where he saw a white truck backed into the loading bay and three or four Hispanic males on the loading dock. When they saw the police car, the men ran. Two other men appeared on the loading dock, and they also ran when they saw the police. Officer Gamboa saw defendant moving quickly down one of the aisles inside the factory and detained him. He also detained Malaquias. Officer Gamboa found a discarded blue steel semiautomatic handgun near the area where defendant was running. The gun was loaded and had a chambered round.
II. Defense Evidence
Defendant offered no evidence in his defense.
DISCUSSION
I. Sufficiency of Evidence in Support of Firearm-Use Findings in Counts 4, 5, and 6
A. Argument
Defendant contends that firearm-use requires at a minimum the intentional display of a firearm as an aid in completing an essential element of the charged offense. He asserts that, as the jury was instructed in CALJIC No. 17.19, in order to find personal use it must be proved that the defendant “intentionally displayed a firearm in a menacing manner, intentionally fired it, or intentionally struck or hit a human being with it.” According to defendant, the evidence of firearm use in the robberies of Flores (count 4), and Morales (count 5) and the attempted robbery of Song (count 6), consisted only of Song’s testimony, which was bereft of any credible evidence from which a jury could find beyond a reasonable doubt that defendant personally used a firearm.
B. Relevant Authority
“We review the sufficiency of the evidence to support an enhancement using the same standard we apply to a conviction. [Citation.] Thus, we presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence. [Citation.]” (People v. Carrasco (2006) 137 Cal.App.4th 1050, 1058.) A reversal for insufficient evidence “is unwarranted unless it appears ‘that under no hypothesis whatever’” there is sufficient substantial evidence to support the judgment. (People v. Bolin (1998) 18 Cal.4th 297, 331.)
“Personal use of a firearm may be found where the defendant intentionally displayed a firearm in a menacing manner in order to facilitate the commission of an underlying crime.” (People v. Carrasco, supra, 137 Cal.App.4th at p. 1059.) The California Supreme Court has held that the legislative intent to deter the use of firearms demands that the phrase be given a broad construction. (People v. Chambers (1972) 7 Cal.3d 666, 672.) “Whether a defendant used a firearm in the commission of an enumerated offense is for the trier of fact to decide. [Citation.]” (Carrasco, supra, at p. 1058.) A jury’s task includes drawing all reasonable inferences and conclusions from the evidence.
C. Evidence Sufficient in Counts 4 and 5 Only
We believe the evidence was sufficient to support the jury’s findings regarding the personal use of a firearm pursuant to section 12022.53, subdivision (b) with respect to the robberies of Flores and Morales (counts 4 and 5, respectively) but not sufficient with respect to the attempted robbery of Song (count 6).
The jury was properly instructed, pursuant to CALJIC No. 17.19, on personal use of a firearm for purposes of section 12022.53, subdivision (b). That instruction read, in pertinent part, “The term ‘personally used a firearm,’ as used in this instruction means that the defendant must have intentionally displayed a firearm in a menacing manner, intentionally fired it or intentionally struck or hit a human being with it.”
The California Supreme Court in In re Tameka C. (2000) 22 Cal.4th 190 recently summarized the legislative intent behind firearm-use enhancement statutes and the case law interpreting these statutes while specifically addressing the enhancement provided for by section 12022.5, subdivision (a). The court stated that “[t]he intent of the enhancement provision is to ‘“deter persons from creating a potential for death or injury resulting from the very presence of a firearm at the scene of a crime”’ [citation], and to ‘“deter the use of firearms in the commission of violent crimes by prescribing additional punishment for each use.”’ [Citation.] As one Court of Appeal has put it: ‘In other words, the term “use,” as employed in this statute . . . should be broadly construed, consistent with common usage, to check the magnified risk of serious injury which accompanies any deployment of a gun in a criminal endeavor.’ (People v. Granado (1996) 49 Cal.App.4th 317, 322 [].) . . . The more culpable and dangerous the behavior, the greater the need exists for effective deterrence. An increased sentence measured by the risk of harm to multiple victims reflects a rational effort to deter such reprehensible behavior. [¶] . . . Relying upon the common meaning of the term ‘use,’ we have declared that ‘“[u]se” means, among other things, “to carry out a purpose or action by means of,” to “make instrumental to an end or process,” and to “apply to advantage.” (Webster’s New Internat. Dict. (3d ed. 1961).) The obvious legislative intent to deter the use of firearms in the commission of the specified felonies requires that “uses” be broadly construed.’ [Citation.] We have said that a firearm-use allegation may be established as true if the defendant ‘utilized the gun at least as an aid in completing an essential element of the [underlying] crime . . . .’ [Citation.]” (In re Tameka C., supra, at pp. 196-197.)
People v. Granado, supra, 49 Cal.App.4th 317, cited in In re Tameka C., stated, “[i]n our view, if the defendant is found on substantial evidence to have displayed a firearm in order to facilitate the commission of an underlying crime, a use of the gun has occurred both as a matter of plain English and of carrying out the intent of [the gun-use enhancement statute]. Thus, when a defendant deliberately shows a gun, or otherwise makes its presence known, and there is no evidence to suggest any purpose other than intimidating the victim (or others) so as to successfully complete the underlying offense, the jury is entitled to find a facilitative use rather than an incidental or inadvertent exposure. The defense may freely urge the jury not to draw such an inference, but a failure to actually point the gun, or to issue explicit threats of harm, does not entitle the defendant to a judicial exemption from [the gun-use enhancement].” (People v. Granado, supra, at p. 325.)
Although People v. Granado interpreted section 12022.5, subdivision (a), its rationale applies equally to section 12022.53, subdivision (b).
In this case, the evidence showed that defendant and several other men conducted an invasion of a textile factory with the intent to steal the inventory and rob all individuals encountered within. Song’s evidence showed that defendant used a black handgun in the commission of two of the robberies (those of Flores and Morales) that form the basis of his argument. Defendant’s use of the black handgun during the invasion was corroborated by Jeff, Hwang, and Kyung.
Morales remembered Malaquias hitting him with a gun and telling him to lie down. Later Morales’s hands were bound by another intruder who arrived and whom Morales could not see. From Song’s testimony the jury reasonably inferred that this second person was defendant and that defendant carried his black gun. Although Morales did not know if the second intruder had a gun, this fact is of no consequence. (People v. Granado, supra, 49 Cal.App.4th at p. 327.) Morales’s cell phone and wallet were taken as he was lying on the floor.
As for Flores, he remembered Malaquias pointing a silver gun at his neck and taking him to the area where his coworkers were on the ground but not yet tied up. After Flores got on the ground, another person came, and then everyone was tied up by one or the other of the two intruders. Although Flores did not see the second person’s face, again the jury reasonably inferred from Song’s testimony that defendant was the second person. Flores’s cell phone and wallet were taken.
Thus, defendant used his gun as an aid in completing one or more of the essential elements of the offense of robbery in counts 4 and 5. (People v. Masbruch (1996) 13 Cal.4th 1001, 1012; People v. Chambers, supra, 7 Cal.3d at pp. 672-673; People v. Carrasco, supra, 137 Cal.App.4th at p. 1059.) He assisted in the control and binding of Flores and Morales, and the fact that neither of these victims saw that defendant was holding a gun is of no significance. (People v. Granado, supra, 49 Cal.App.4th at pp. 327-329.) As stated in People v. Granado, “[t]he requirement of gun-related conduct coupled with facilitative intent amply distinguishes use from mere possession.” (Id. at p. 329.)
The jury was instructed that in order to find that a robbery had been committed, the following elements had to be proved: a person had possession of property of some value, the property was taken from that person or from his immediate presence, the property was taken against the will of that person, the taking was accomplished either by force or fear, and the property was taken with the specific intent permanently to deprive that person of the property.
We also conclude that evidence of such facilitative intent was lacking in the attempted robbery of Song. Although Song hid his valuables and exited his office due to his fear of defendant and Malaquias, who were both displaying weapons, any display by defendant to Song was clearly unintentional. Defendant did not know that Song, a potential robbery victim, was present. Defendant did not use his gun to facilitate completing any element of the attempted robbery of Song, since, according to Song, defendant was already walking away when Song came out of his office. There is no evidence that the second person to whom Flores and Morales referred ever returned to the area of the warehouse where they lay. Song’s testimony leads to the inference that he was searched and tied up by Malaquias, and Malaquias put a gun to his head. Therefore, the personal use of a firearm enhancement attached to the attempted robbery of Song cannot stand with respect to defendant.
In sum, we conclude there was sufficient evidence from which the jury could draw the inference that defendant used the black gun to facilitate the commission of the robberies of Morales and Flores, but not the attempted robbery of Song. The personal firearm-use enhancement in count 6 must be stricken.
II. Imposition of Upper Term in Count 1
In his initial brief, citing Blakely v. Washington (2004) 542 U.S. 296,defendant contended that the trial court was not entitled to engage in fact-finding in order to increase defendant’s sentence above the midterm. In imposing sentence on count 1, the trial court stated, “the court finds as a mitigating circumstance the defendant has no significant criminal history and was a juvenile at the time of the offense. [¶] As an aggravating factor, I find that the crime was very sophisticated and involved planning and involved the gathering together of several individuals to engage in this take-over robbery. I would agree with the People’s characterization that the defendant played an active roll [sic] in the robbery and had a gun that he used in a very threatening manner against several individuals.”
The probation report listed other aggravating factors: the crime involved a threat of great bodily harm, defendant was armed, the victim was particularly vulnerable, and defendant’s violent conduct indicated a serious danger to society. The sole mitigating factor was defendant’s lack of a prior record.
The United States Supreme Court, in Cunningham v. California (2006) 549 U.S. ___ [ 127 S.Ct. 856] (Cunningham) agreed with defendant. Cunningham relied on a line of recent cases beginning with Apprendi v. New Jersey (2000) 530 U.S. 466 to hold that California’s determinate sentencing law “by placing sentence-elevating factfinding within the judge’s province, violates a defendant’s right to trial by jury safeguarded by the Sixth and Fourteenth Amendments.” (Cunningham, supra, at p. ___ [127 S.Ct. at p. 860].)
At this court’s request, the parties submitted supplemental briefs regarding the effect of Cunningham on defendant’s sentence. After the decisions by the California Supreme Court in People v. Black (2007) 41 Cal.4th 799 (Black) and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval), the parties submitted further supplemental briefing at this court’s request.
Defendant argues that his case should be remanded for resentencing. He points out that none of the aggravating factors relied upon by the trial court were related to recidivism. He states that it was neither alleged nor found true by the jury that the crime involved sophistication and planning. Viewing the court’s second sentence as articulating only one factor, defendant states that his “active” role, shown by his use of a gun in a threatening manner, was encompassed in the personal firearm-use allegation under section 12022.53, subdivision (b). However, since the trial court used this fact to impose the 10-year enhancement under section 12022.53, subdivision (b), it could not be used to impose the upper term under the Determinate Sentence Law (DSL) as well.
Defendant also takes issue with Black’s holding that, so long as one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the upper term sentence is the statutory maximum, even if the trial court relied on other aggravating factors that were not found true by the jury. (See Black, supra, 41 Cal.4th at p. 812.) Defendant states that this aspect of Black was wrongly decided because this single-factor test is in direct contravention of the express ruling in Cunningham that the middle term in the DSL is the maximum. Moreover, it is in contravention of California Rules of Court, rule 4.420 and California case law stating that imposing the upper term requires determining whether this particular defendant deserves an aggravated term for this particular offense. This is achieved by the trial court’s weighing the factors in aggravation and mitigation. Unless the former outweigh the latter, the defendant is not eligible for an aggravated sentence. Here, defendant maintains, there were no aggravating factors found true by the jury that could permissibly be used to impose the upper term. Furthermore, neither Black nor Sandoval involved or addressed the existence of mitigating factors, and the trial court expressly found two mitigating factors in defendant’s case.
Defendant argues that the error is not harmless. He contends that the record does not establish that the jury would have found beyond a reasonable doubt any of the facts relied upon by the trial court in imposing the upper term. Furthermore, this court cannot assume that the trial record fully reflects all the evidence that would have been presented to the jury if the aggravating factors had been theirs to decide beyond a reasonable doubt. Defendant did not necessarily have reason or opportunity during trial to challenge the evidence supporting the aggravating circumstances.
Respondent contends that all of the factors relied upon by the trial court—and respondent counts three of them—would unquestionably have been found true by the jury had they been presented to the jury. Therefore, any error is harmless beyond a reasonable doubt. Respondent asserts that defendant has conceded that the jury found true his use of a gun, the third factor noted by the trial court. According to respondent, this nullifies defendant’s argument that the trial court committed Cunningham error, since the trial court was thus authorized to make this finding as well as any other findings of aggravating circumstances without running afoul of Cunningham. Moreover, defendant’s failure to object at sentencing on the grounds of violation of the sentencing rules waives any objection to the trial court’s “dual use” on appeal.
Respondent further contends that the existence of mitigating factors has no effect on the jury’s role as fact finder. Cunningham only requires that the underlying facts relied upon in sentencing be found by a jury. Defendant’s argument that the jury might have weighed one fact in a particular manner in relation to the other is misdirected.
We agree with respondent that the court’s explanation of reasons for imposing the upper term contained three separate factors. One of the factors used by the trial court in imposing the aggravated term was his use of a gun. It is true that the trial court’s naming of defendant’s firearm use as an aggravating factor constituted dual use of that factor, since the 10-year firearm enhancement was imposed. Former section 1170, subdivision (b), prohibited the dual use of a prior conviction for an enhanced sentence and an upper term sentence. The statute provided: “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); see also Cal. Rules of Court, rule 4.420(c); People v. Murphy (2001) 25 Cal.4th 136, 156-157.)
In response to Cunningham, the California Legislature amended section 1170 by urgency legislation effective March 30, 2007. (Stats. 2007, ch. 3, § 2 (Sen. Bill No. 40).
It is also true, however, that under People v. Scott (1994) 9 Cal.4th 331 (Scott), if a defendant does not object to an erroneous ruling at the time of sentencing, he waives that claim on appeal. (Id. at pp. 351-353.) Scott stated that “the waiver doctrine should apply to claims involving the trial court’s failure to properly make or articulate its discretionary sentencing choices. Included in this category are cases in which the stated reasons allegedly do not apply to the particular case, and cases in which the court purportedly erred because it double-counted a particular sentencing factor, misweighed the various factors, or failed to state any reasons or give a sufficient number of valid reasons.” (Id. at p. 353.) Trial counsel should have brought the dual use of the firearm-use factor to the attention of the trial court.
In order to avoid any possible claim of ineffective assistance of counsel for a failure to object to the dual use, we continue our analysis of the remaining factors. “The United States Supreme Court has recognized two exceptions to a defendant’s Sixth Amendment right to a jury trial on an aggravating fact that renders him or her eligible for a sentence above the statutory maximum. First, a fact admitted by the defendant may be used to increase his or her sentence beyond the maximum authorized by the jury’s verdict. (Blakely, supra, 542 U.S. at p. 303.) Second, the right to jury trial and the requirement of proof beyond a reasonable doubt do not apply to the aggravating fact of a prior conviction. [Citations.]” (Sandoval, supra, 41 Cal.4th at pp. 836-837.) Given that neither of the remaining two factors named by the trial court here fell within the two exceptions set forth in Blakely, and assuming the factor of gun use was invalid, defendant’s Sixth Amendment rights were violated by imposition of the upper term. We proceed to determine if that error was harmless.
Sandoval articulated a harmless error test for Cunningham error, stating that “if a reviewing court concludes, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury, the Sixth Amendment error properly may be found harmless.” (Sandoval, supra, 41 Cal.4th at p. 839.) The reviewing court must take into consideration the fact that the factual record might not have been the same if the aggravating factors had been charged and tried to a jury. (Id. at p. 840.) The reviewing court must also consider whether the wording of the enumerated aggravating factor creates a vague or subjective standard and whether the facts of the aggravating factor were contested, so that it would be difficult to determine how the jury would resolve the dispute. (Id. at pp. 839-841.)
We conclude that harmless error occurred in the instant case. At least one of the factors cited by the trial court—that “the crime was very sophisticated and involved planning . . .” passes muster under the Sandoval test. California Rules of Court, rule 4.421 lists as a factor in aggravation, “The manner in which the crime was carried out indicates planning, sophistication, or professionalism.” We believe beyond a reasonable doubt that the jury would have found that the takeover of the textile plant was a well-planned operation.
The scenario presented to the jury was not that of a convenience store stick-up or even a bank robbery carried out by one or two robbers. The crime in this case required the recruitment and organization of several, if not many, persons. It required acquisition of knowledge about the factory operations and schedule as well as the layout of the plant. The intruders split up in two groups to take over the office on one side of the building and the workers on the factory floor. Defendant and a cohort subdued the workers on the floor, and defendant then left to participate in the takeover of the office personnel. There was an empty truck backed into the loading dock, and men apparently waiting to begin loading the factory’s inventory. The forklift was started. There was another truck waiting on a side street. The intruders in charge of taking down the owners and employees worked in pairs to assist each other in subduing and tying up the victims, and the victims were robbed of their personal belongings. It was a well-planned and well-coordinated attack, foiled only by the quick thinking of Song. He indirectly alerted police and had the courage and foresight to leave his office and act as if he were surprised by the robbers.
We disagree with defendant’s assertion that there must be evidence that the defendant himself was involved in the planning. The plain language of the rule focuses on the “manner in which the crime was carried out.” It is true that in Sandoval, the court took a position similar to defendant’s on another factor related to the crime. The Sandoval court stated it was not convinced beyond a reasonable doubt that the jury would have found true the circumstance that “‘[t]he crime involved great violence’” because the jury reasonably could have concluded that this factor was not applicable to the defendant. The jury could have decided that the factor was not true for Sandoval herself, since her culpability for the violent acts of her cohorts was disputed at trial. The jury even found Sandoval guilty of manslaughter rather than murder. (Sandoval, supra, 41 Cal.4th at pp. 842-843.)
The circumstances of the instant case are distinguishable. Sandoval maintained in her statement to police that her goal in the confrontation that occurred was to have one of the victims beaten up only. She had not intended that guns be used, unless needed for defensive purposes. (Sandoval, supra, 41 Cal.4th at pp. 832-834.) In the instant case, the jury found defendant guilty as charged. Defendant’s actual role in the well-orchestrated crime was not disputed. He participated fully in the planned takeover of the employees and management of the warehouse. Defendant was the sole gunman to participate in both the office and warehouse-floor takeovers. He went from one hostage location to the other, thus appearing to take a leading role in a preconceived plan.
Furthermore, we believe the factor under consideration does not create a vague or subjective standard. The instant case is a paradigm of a planned crime, and the facts proving the aggravating factor were not contested. Under the circumstances of this case, it is clear beyond a reasonable doubt that the jury would have “assessed the facts in the same manner as did the trial court” (Sandoval, supra, 41 Cal.4th at p. 840), and “had the jury been instructed on this point it would have found this aggravating circumstance to be true.” (Id. at p. 843). Therefore, defendant’s upper term sentence will stand.
We do not believe the existence of two mitigating factors changes the result. First, the holding of Black that one valid aggravating factor is sufficient to make a defendant eligible for the upper term is clear and binding on this court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Moreover, we agree with respondent that the Cunningham inquiry focuses on whether the fact or facts relied upon for imposition of the upper term were found by a jury beyond a reasonable doubt or admitted by the defendant. As Black stated, “so long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury.” (Black, supra, 41 Cal.4th at p. 813.) Furthermore, in commenting that it did not “understand defendant to contend that he is entitled to a jury trial on the question of whether aggravating circumstances outweigh mitigating circumstances,” the Black court stated in dicta that this argument is not supported by the high court’s precedents, which require a jury trial only on a fact that increases the punishment for a crime beyond the statutory maximum. (Black, supra, 41 Cal.4th at p. 814, fn. 4, citing Apprendi v. New Jersey, supra, 530 U.S. at p. 490.) The Black court explained that “[t]he trial court’s evaluation of the relative weight of aggravating and mitigating circumstance is not equivalent to a factual finding.” (Ibid.)
In the instant case, although the jury did not have the opportunity to find beyond a reasonable doubt that the crimes in this case involved planning, the error is harmless beyond a reasonable doubt.
DISPOSITION
The true finding as to the personal firearm-use allegation (§ 12022.53, subd. (b)) in count 6 is reversed. The judgment is modified to strike the 10-year enhancement imposed for the section 12022.53, subdivision (b) allegation in count 6. As so modified, the judgment is affirmed. The superior court is directed to prepare an amended abstract of judgment and to forward a copy to the Department of Corrections and Rehabilitation.
We concur: DOI TODD, Acting P. J., CHAVEZ J.