Opinion
NOT TO BE PUBLISHED
Lake County Super. Ct. No. CR913050
Pollak, Acting P. J.
Defendant Patrick Dewin McDaniel appeals from judgment imposing a seven-year prison term following his guilty plea to the charges of carrying a loaded firearm in a vehicle and possessing marijuana for sale. His attorney filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 requesting the court to independently review the record for potential error. Pursuant to Anders v. California (1967) 386 U.S. 738, defendant’s counsel noted three issues that arguably might warrant relief. Following the court’s independent review of the record, counsel were directed to submit supplemental briefing on four questions concerning the propriety of the sentence. After reviewing the supplemental letter briefs submitted by defendant’s attorney and the Attorney General, we conclude that the trial court twice impermissibly made dual use of sentencing factors to aggravate the terms imposed. Although defendant failed to object in the trial court, we deem it appropriate to consider the issue, and conclude that the matter should be remanded for resentencing.
Defendant was advised of his personal right to file a supplemental brief and has not done so.
The salient facts concerning the present offenses, confirmed by testimony at the preliminary hearing, are summarized in the probation report as follows: “On May 28, 2007, the defendant was stopped by a Highway Patrol officer for a traffic violation. During his contact with the driver, the officer noted an odor of marijuana. The driver denied smoking any marijuana. The officer had the defendant exit the vehicle. [¶] During a search of the vehicle, the officer located a loaded Bryco semi-automatic pistol and twenty-nine (29) individually packaged baggies of marijuana. A records check revealed the defendant was on CYA parole. The defendant was arrested and a parole hold placed.” The items located during the search of the vehicle were located in the space between the body panel and carpeting in the rear of the car, underneath the carpet behind the driver’s seat. The pistol was loaded with six rounds in the magazine and one round in the chamber.
Ultimately an information was filed charging defendant with carrying a firearm concealed within a vehicle (Pen. Code, § 12025, subd. (a)(1)) (count I), carrying a loaded firearm in a vehicle (§ 12031, subd. (a)(1)) (count II), and possession of marijuana for sale (Health & Saf. Code, § 11359) (count III). As to count III it was alleged as an enhancement that in the commission of the offense defendant was armed with a firearm. (§ 122022, subd. (a)(1).) It was also alleged that defendant had been convicted of a prior serious or violent felony, carjacking (§ 215, subd. (a)), a “strike” (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)). Following arraignment and the initial entry of not guilty pleas, defendant, after being fully advised of the constitutional rights he was waiving, pled guilty to counts II and III and admitted the truth of the enhancement and prior strike allegations. The prosecution dismissed count I. Defendant was advised that the maximum sentence that could be imposed was eight years and four months, but no promises were made concerning what the eventual sentence would be.
All statutory references are to the Penal Code unless otherwise indicated.
Following the receipt of a probation report that recommended a sentence of six years four months, the court first denied a verbal motion to dismiss the prior strike allegation under People v. Superior Court (Romero) (1996) 13 Cal.4th 497, and then imposed a sentence of seven years. The court imposed concurrent aggravated terms of three years for both offenses, doubled because of the prior strike, plus one additional year for the enhancement under count III. In selecting upper terms, the court found no mitigating factors and mentioned the following factors in aggravation: “[T]he defendant engaged in violent conduct which indicates that he is a danger to society, having that firearm in this case. [¶] He has served a prior prison term. . . . [H]e was on CYA parole when this crime was committed. And his performance on parole was unsatisfactory.” Defendant filed a timely notice of appeal “based on the sentence or other matters occurring after the plea.”
Standard fines, fees and other terms were also imposed, and credit for time served granted.
As to the first issue suggested by defendant’s appellate counsel, we do not believe the trial court abused its discretion in denying defendant’s Romero motion. The court explained its denial as follows: “The court finds that although the defendant does not have a significant prior record in number, he simply has this prior carjacking conviction, it is relatively recent. It occurred in 2003. And his conduct in this case and being in possession of a firearm leads the court to find that he falls well within the ambit of the three strikes law and I decline to strike that.” Based on this explanation, and also considering the other factors to which the court referred in selecting the aggravated term, we cannot say that the refusal to strike the prior strike was an abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 376-378.)
With respect to the first sentencing issue suggested by defense counsel, we do not believe the court erred in considering defendant’s prior commitment to the former California Youth Authority (CYA) as an aggravating factor. California Rules of Court, rule 4.421(b)(3), which lists having “served a prior prison term” as an aggravating factor, admittedly is ambiguous in this respect. A direct commitment to CYA (as distinguished from transfer to CYA of a minor who has been committed to the Department of Corrections) does not constitute a prior prison term for the purpose of imposing an enhancement under section 667.5 (People v. Seals (1993) 14 Cal.App.4th 1379), although a CYA commitment after commission of a felony does constitute a prison term under section 667.7, subdivision (b). Nonetheless, we agree with the Attorney General that even if the CYA commitment is not deemed a “prison” term, it was properly considered by reason of California Rules of Court, rule 4.408(a), which reads: “The enumeration in these rules of some criteria for the making of discretionary sentencing decisions does not prohibit the application of additional criteria reasonably related to the decision being made. Any such additional criteria must be stated on the record by the sentencing judge.” (People v. Charron (1987) 193 Cal.App.3d 981, 994; People v. Lucky (1988) 45 Cal.3d 259, 295, fn. 24.)
Effective July 1, 2005, the CYA is now called the Department of Corrections and Rehabilitation, Division of Juvenile Facilities. (Welf. & Inst. Code, §§ 1703, subd. (c), 1710, subd. (a).) For the sake of clarity and consistency with the designation used by the trial court, we will refer to that entity as the CYA in this opinion.
We do agree, however, that the trial court impermissibly made dual use of defendant’s possession of a firearm in selecting the upper terms. California Rules of Court, rule 4.421(b)(1) makes it a factor in aggravation that “[t]he defendant has engaged in violent conduct that indicates a serious danger to society.” As indicated above, in explaining its reasons for selecting the upper term the court first mentioned “that the defendant engaged in violent conduct which indicates that he is a danger to society, having that firearm in this case.” The only basis for finding this factor in aggravation was defendant’s possession of the firearm. The record discloses no other possible basis for finding that defendant engaged in violent conduct in connection with either of the two offenses. Indeed, in explaining why the court felt concurrent sentences were appropriate, the court stated, “Neither crime involved a separate act of violence.”
The use of defendant’s possession of the firearm as an aggravating factor constituted the impermissible dual use of that factor as to count II. Possession of a firearm was necessarily an element of the crime of carrying a loaded firearm in a vehicle (People v. Taylor (1984) 151 Cal.App.3d 432, 436) and, thus, could not be used to justify the upper term for that offense (Cal. Rules of Court, rule 4.420(d)). As to count III, possession of a firearm in the commission of the offense was the basis for the enhancement under section 12022, subdivision (a)(1) and, thus, could not be used to justify the upper term for that offense (§ 1170, subd. (b); Cal. Rules of Court, rule 4.420(c); People v. Gutierrez (1992) 10 Cal.App.4th 1729, 1735).
The Attorney General’s principal argument is that defendant waived this contention by failing to object when the sentence was imposed. While there is merit to the argument (People v. Scott (1994) 9 Cal.4th 331, 353; People v. Gonzalez (2003) 31 Cal.4th 745, 775), this court nonetheless retains the discretion to consider the issue (People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6; People v. Ellison (2003) 111 Cal.App.4th 1360, 1370). Because defendant asserts an alternative ineffective assistance of counsel claim if the issue is deemed waived, we deem it most expedient to resolve the issue on its merits at this time.
The question remains whether the trial court’s reference to a factor that should not have been considered in selecting the upper term was prejudicial and requires a remand for resentencing. The trial court did rely on additional factors in choosing the upper term, so that the court might have made the same choice without reference to the improper factor. However, the court did not state that it considered each of the factors to which it referred to be independently sufficient to justify the aggravated term. During the course of the sentencing hearing the court referred more than once to defendant’s possession of the firearm; we are uncertain whether removal of this factor from the court’s consideration would have affected the manner in which it exercised its discretion. As defendant argues, the additional factors to which the court referred—that defendant was on CYA parole when he committed the offenses and his performance on parole was unsatisfactory—“was really a single factor. [Defendant]’s performance on CYA parole was ‘unsatisfactory’ only because of his commission of the present crime.” We cannot say with confidence that there is no reasonable probability that the trial court will impose less than the aggravated terms if the presence of the firearm is disregarded. Hence, a remand for resentencing is necessary. (People v. Robinson (1992) 11 Cal.App.4th 609, 615-616, disapproved on other grounds in People v. Scott, supra, 9 Cal.4th at p. 353, fn. 16; People v. Alvarado (1982) 133 Cal.App.3d 1003, 1028.)
The judgment is reversed and the matter is remanded to the trial court for resentencing.
We concur: Siggins, J., Jenkins, J.