Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CR033624
OPINION ON REMAND
BLEASE, Acting P. J.
On February 20, 2007, the United States Supreme Court, having granted a petition for writ of certiorari, vacated the judgment of this court and remanded the case to us for further consideration in light of Cunningham v. California (2007) 549 U.S. __ [166 L.Ed.2d 856] (Cunningham). We directed the parties to submit supplemental letter briefs, discussing Cunningham issues only. Having further considered the case in light of Cunningham, we shall remand for resentencing but otherwise affirm the judgment. We reissue our opinion with appropriate changes in light of Cunningham.
A jury acquitted defendant William Elefate McElroy of murder but convicted him of voluntary manslaughter as a lesser offense (Pen. Code, § 192, subd. (a) -- (count 1)); undesignated section references are to this code). The jury also convicted defendant of being a convicted felon in possession of a firearm (§ 12021, subd. (a)(1) -- count 2), possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a) -- count 3) and possession of methamphetamine while armed with a loaded firearm (Health & Saf. Code, § 11370.1, subd. (a) -- count 4). In connection with count 1, the jury found that defendant personally discharged a firearm causing death (§ 12022.53, subd. (d)) and personally used a firearm in the commission of a felony (§ 12022.5, subd. (a)). In bifurcated proceedings, the court found two prior prison term allegations (§ 667.5, subd. (b)) to be true. The court struck the firearm enhancement that the jury found true under section 12022.53, subdivision (d) because it is limited to certain specified offenses and voluntary manslaughter is not listed.
The court sentenced defendant to state prison for an aggregate term of 19 years: count 1, the midterm of six years plus an upper term of 10 years for the firearm enhancement under section 12022.5, subdivision (a); count 2, a concurrent midterm of two years; count 3, the upper term of three years, stayed pursuant to section 654; count 4, a consecutive one-third the midterm or one year; and two one-year enhancements for the prior prison terms.
Defendant appeals, contending (1) the trial court prejudicially erred in refusing to give the defense-requested instruction on involuntary manslaughter, (2) the trial court’s imposition of the upper term for the firearm enhancement contravenes Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi), Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely), and Cunningham, supra, 549 U.S. ___ [166 L.Ed.2d 856], and (3) the abstract of judgment and sentencing minute order require correction to reflect the court’s oral pronouncement of judgment. We reject defendant’s first contention with respect to jury instructions. We agree that the trial court violated Apprendi/Blakely/Cunningham in imposing the upper term for the firearm enhancement and will remand for resentencing, rendering moot defendant’s final contention.
FACTS
On the evening on June 12, 2003, the 28-year-old defendant and 19-year-old Jared Boles went to a motel with their friends Robert Maas and his girlfriend, Kassie Key. Boles rented a room where all four used methamphetamine. Boles and defendant had been using methamphetamine and had not slept for several days prior to their use in the motel room. After having been at the motel for about an hour, Boles left in defendant’s car to buy something to eat. Defendant took a shower. When defendant finished showering and dressing, Maas saw a gun in defendant’s pocket and asked him to unload the gun. Defendant complied, setting the bullets on a table and returning the gun to his pocket.
Upon returning to the motel in defendant’s car about 45 minutes later, Boles saw Victor Roy in the parking lot. Boles had had a conflict with Michael Santiago, a friend of Roy’s, and knew Roy was a member of the Norteno gang. Boles parked by his motel room door. As Boles approached the door, Roy pulled up in a car, got out, and with his fists clenched, approached Boles. Boles thought Roy wanted to fight. Boles knocked on the door and asked to be let in. Three other people got out of another car that had pulled up and joined Roy in hitting and kicking Boles. Boles, falling to the ground, continued knocking on the door. He believed that he was about to suffer serious bodily injury. He did not see or feel any weapons.
Hearing knocking on the door, thuds and Boles’s screams for help, defendant tried to open the door with one hand while loading the gun with the other hand. Key hid in the bathroom and Maas stood between the bathroom and the front door. Defendant tried to open the door but a security latch prevented him from doing so. Finally, he was able to open the door. Holding the gun with the barrel pointed to the ground, he stepped outside and asked something to the effect of “What was that for?” or “What the fuck is that all about?” Maas saw more than five people “scatter” away from Boles when the door opened. Maas also saw a Hispanic woman standing in the middle of the parking lot. Defendant fired four shots altogether. Boles only saw defendant fire the first shot when the gun was pointed into the air. Boles claimed one of his attackers continued holding him until the first shot was fired. Boles claimed his attackers ran away after the first shot. Key, standing in the bathroom with the door slightly ajar and looking into a mirror, saw defendant fire all four shots with the gun pointed up in the air. Maas testified that he did not see defendant fire the first three shots. Maas had dropped to the floor after the first shot and tried to shut the door. Maas saw defendant’s hand pointed into the air when he fired the fourth shot.
When interviewed four days after the shooting by an officer, Maas claimed that when defendant opened the door, Boles crawled into the doorway, defendant stepped past Boles, and stood outside the motel room and raised the gun. Maas testified at trial that he never made that statement. Maas also told the officer that he saw a Hispanic woman run away. Boles suffered bruising and/or scratches on his head, back, and shoulder. His head was also bleeding.
Before the attackers left in their cars, defendant and Boles entered the motel room. Defendant seemed dazed, confused and scared. Five seconds later, defendant and Boles left together, fleeing from the motel. Defendant gave the gun to Boles, saying “Get rid of this” and walked away. Boles recognized the gun, a .38 caliber revolver, as belonging to his father, but with Boles’s bandana wrapped around the handgrip. Boles had used the gun for target practice and kept it in his room along with some ammunition. Defendant had been in Boles’s room earlier that day but Boles did not give the gun to defendant and did not know he had it. After taking the gun from defendant, Boles threw it over the fence near the motel.
Maas and Key fled from the motel two minutes after defendant and Boles had left. Maas was afraid that Boles’s attackers were still outside the motel room. Boles called Maas and Key, asking that they pick him up at a mobile home park a half a mile away from the motel.
The police contacted defendant who was wandering near the motel after the shooting. Defendant was sweating. He claimed that he had gone to the motel, planning to purchase some drugs, but instead, he saw a fight, heard two or three gunshots and walked away from the motel. The police did not detain defendant any longer at that time. About 10:20 p.m., the police learned that someone had been admitted to the hospital with a gunshot wound. The police again contacted defendant who gave the same story. He thereafter voluntarily agreed to go to the police station for a further statement.
About 1:30 a.m. on June 13, 2003, Detective Jason Brooks interviewed defendant who started talking about a dream and an argument with his mother, which the officer described as “nonsense talk” and “some weird things.” Defendant reiterated that he had been at the motel planning to purchase drugs and did not state that there had been a fight.
About 2:30 a.m., Detective Brooks learned that the gunshot victim at the hospital had died and informed defendant. Defendant seemed shocked, asking “Somebody died?”
At 4:30 a.m., defendant’s blood was drawn at the hospital. The blood tested positive for methamphetamine (.29 milligrams per liter) and marijuana metabolite. When defendant asked and was told again that someone had died, defendant blurted out, “[B]ut they were beating the hell out of that guy” and “[M]y girlfriend’s seven months pregnant and I have to tell her I’m going to jail because I killed someone.” Defendant asked the officer to call defendant’s girlfriend and tell her that “I’m going to prison for life.”
Sometime that day, defendant called his former substance abuse teacher and explained that he had been arrested for murder but had not committed the offense. He told her he heard someone fighting, a friend yelling for help and two or three gunshots and then saw someone helped into a car which drove away.
Officers later found the gun which had six rounds, four spent and two live, inside the cylinder. In the motel room, officers found usable quantities of methamphetamine. The lighting around the motel was poor with visibility of only 30 to 40 feet into the parking lot.
Gregory Reiber, a pathologist, performed the autopsy on the gunshot victim, Anthony Ortiz. Reiber explained that the .38 caliber “wad cutter” bullet had entered the victim’s left flank, missed bones, traveled 45 degrees from left to right and 20 degrees upward striking the stomach, liver, large intestine, pancreas, spleen, and lodged in the abdomen, resulting in death. A “wad cutter” bullet has a flat nose. Reiber opined that the bullet had not ricocheted off of something before hitting the victim because the bullet was only slightly deformed. There was no evidence of gunshot residue or stippling. Reiber also opined that if the bullet was traveling level with the ground, then the victim was turned away and leaning away from the direction the bullet was traveling. If the bullet was falling down from the air, the victim’s body would have been on the ground, partially on his right side facing down, with his shoulders lower than his hips, “a very unusual position.” Reiber found no injuries on the victim consistent with being on the ground.
Defendant testified that he and Boles had been awake for six days using methamphetamine together. Defendant claimed Boles brought the gun and the methamphetamine into defendant’s car and they drove to the motel room where defendant grabbed everything in the car and took it inside. Defendant admitted that he and the others, Boles, Maas and Key, all used methamphetamine in the room.
When defendant heard the scuffle outside their motel room and Boles screaming for help, defendant, frightened, peered through the curtains and saw at least five people kicking and beating Boles. It did not seem real at first to defendant. Defendant grabbed the gun, thinking his friend was being beaten to death, loaded it with one hand and opened the door with the other hand after a couple of tries. Defendant planned to just scare the attackers. Defendant testified he was screaming but was not sure whether the screaming was just inside his head or out loud. When defendant opened the door, he saw six or seven Hispanic men beating and stomping Boles next to the door. Defendant also saw one woman nearby, two women in a car and four or five other men. Defendant asked, “What the fuck’s going on?”, raised the gun part way into the air to avoid the balcony above and fired twice toward an empty field. The attackers “jumped back” from Boles. Defendant stepped between Boles and the attackers and heard one of the attackers say, “Get the fucking strap, get the strap.” Strap is slang for gun. Defendant saw two men run towards a car in the parking lot. The others hid behind cars. Attempting to scare the men who were running to the car where defendant believed the “strap” was located, defendant “aimed the gun down and tried to shoot at the car” located at the end of the parking lot, approximately 67 feet away. He did not see anyone in the car. He denied shooting at anyone. He fired the final shot into the air when everyone was running away. Although he is left handed, he fired all the shots with his right hand. He denied shooting at the victim and did not know where the victim was when he shot at the car. Defendant did not recognize anyone. Defendant returned to the room after firing the fourth shot, tossed the gun to Boles and suggested that they flee because the attackers may return with guns; defendant did not know that anybody had been shot. Defendant had been previously convicted of conspiracy to sell methamphetamine.
Terry Wingert, a defense firearms expert, opined that the “wad cutter” bullet removed from the victim had ricocheted off some hard surface, possibly the ground, before hitting the victim. The expert based his opinion on the appearance of the bullet. Wingert doubted that a bullet from a gun, aimed at a car when fired, hit that car and bounced back to strike the victim in the back. When fired at a moving target, the revolver used was generally accurate up to 60 feet.
In rebuttal, an officer testified that no one had pointed out any bullet ricochet strikes in the parking lot but she had not searched the lot for bullet strikes and did not know if other officers had done so. She had looked for bullet holes in cars in the lot and the car that had transported the victim to the hospital but had found none. She did not record dents or scratches in the cars in the parking lot.
DISCUSSION
I
Defendant contends that the trial court prejudicially erred in refusing his requested instruction on involuntary manslaughter. He argues that had the jury been given the involuntary manslaughter instruction “along with an accompanying instruction explaining the mental state requirements” for the same, the jury could have reasonably rejected that the killing was intended or done with conscious disregard for human life. We conclude any error was harmless.
Defendant requested that the trial court instruct the jury on involuntary manslaughter in the modified language of CALJIC No. 8.45 as follows:
“Every person who unlawfully kills a human being, [without malice aforethought,] [and] [without an intent to kill, and without conscious disregard for human life,] is guilty of the crime of involuntary manslaughter in violation of Penal Code § 192, subdivision (b).
“There is no malice aforethought if the killing occurred in the actual but unreasonable belief in the necessity to defend oneself against imminent peril to life or great bodily injury.
“[A killing in conscious disregard for human life occurs when a killing results from an intentional act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that [his] conduct endangers the life of another and who acts with conscious disregard for human life.]
“A killing is unlawful within the meaning of this instruction if it occurred:
“1. During the commission of an unlawful act [not amounting to a felony] which is dangerous to human life under the circumstances of its commission; or
“2. In the commission of an act, ordinarily lawful, which involves a high degree of risk of death or great bodily harm, without due caution and circumspection.
“[A violation of _____Code Section[s] is an ‘unlawful act’ [not amounting to a felony].]
“[The commission of an unlawful act, without due caution and circumspection, would necessarily be an act that was dangerous to human life in its commission.]
“In order to prove this crime, each of the following elements must be proved:
“1. A human being was killed; and
“2. The killing was unlawful.
“If the defendant fired the weapon with the intent only to frighten, and not to shoot the deceased, and if the defendant did not act in self-defense as defined in these instruction[s], then you may convict the defendant of involuntary manslaughter.”
Defense counsel requested that the trial court instruct the jury on involuntary manslaughter, arguing that the killing was committed in the commission of an unlawful act not amounting to a felony, that is, misdemeanor brandishing a firearm.
Section 417, subdivision (a)(2), provides, in relevant part, as follows: “Every person who, except in self-defense, in the presence of any other person, draws or exhibits any firearm, whether loaded or unloaded, in a rude, angry, or threatening manner, or who in any manner, unlawfully uses a firearm in any fight or quarrel” is guilty of a misdemeanor.
In refusing the request, the trial court determined that misdemeanor brandishing did not include discharging the firearm.
The trial court must instruct “on lesser included offenses ‘when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged.’ [Citation.]” (People v. Barton (1995) 12 Cal.4th 186, 194-195.) When the trial court errs in failing to instruct on a lesser included offense supported by the evidence, we reverse only if it appears reasonably probable the defendant would have achieved a more favorable outcome had the court properly instructed. (People v. Blakeley (2000) 23 Cal.4th 82, 94 (Blakeley); People v. Breverman (1998) 19 Cal.4th 142, 178.) We conclude any error in failing to instruct on involuntary manslaughter was harmless.
Defendant claims the court erroneously refused to instruct on involuntary manslaughter on the theory that he committed the predicate misdemeanor of brandishing a firearm. (§§ 192, subd. (b); 417, subd. (a)(2).) He asserts there was substantial evidence from which the jury could have found that the killing was committed during the commission of misdemeanor brandishing. He cites his testimony that he used his off hand, that he did not intend to aim at or shoot anyone but only intended to scare the attackers and that he did not see anyone in the car or see or know where the victim was when the shot was fired towards the car. He notes the evidence showed that the lighting in the motel parking lot was poor with visibility of about 30 to 40 feet and that the car he shot at was over 60 feet away. He also cites the defense expert’s testimony that the bullet may have ricocheted off of a hard surface before hitting the victim. Defendant also notes he had not slept for days, he had been frightened and then dazed after the shooting, he spoke “nonsense” to an interrogating officer and was shocked when police informed him that the victim had died.
Assuming the evidence supported an involuntary manslaughter instruction, it was not reasonably probable that if so instructed the jury would have convicted defendant of that offense rather than voluntary manslaughter. Based on the facts and circumstances, the jury would not have reasonably found that defendant merely brandished his gun.
Defendant testified that he used the firearm initially to scare Boles’s attackers, firing into the air. It worked, according to defendant. But when the attackers ran to a car to get a “strap,” a gun, defendant testified that he lowered the firearm and fired towards the car to scare the two men who were running towards the car where defendant believed the “strap” was located and then fired another round into the air when everyone was running away. The evidence reflects that defendant committed not merely misdemeanor brandishing (People v. Lee (1999) 20 Cal.4th 47, 60-61) but instead felony assault with a firearm (Pen. Code, § 245, subd. (a)(2)) or felony discharge of a firearm (Pen. Code, § 246.3). Thus, any error was harmless. (Blakeley, supra, 23 Cal.4th at p. 94.)
II
Defendant only challenges the imposition of the upper term for the firearm enhancement, claiming the sentence contravenes Apprendi/Blakely/Cunningham and should be reduced to the midterm. We agree that the trial court violated Apprendi/Blakely/Cunningham and will remand for resentencing.
Background
In imposing sentence, the court stated:
“The probation officer points out that there are a number of factors in aggravation and several factors in mitigation which apply to all of the felony charges in this case. The factors in aggravation pertain to the defendant’s prior criminal record, three felony convictions, three prison commitments, one felony conviction for an assault on a prisoner, so obviously one other assaultive conviction. Failures on diversion, failures on probation, failures on parole. All of those things are damaging to [defendant].
The probation report reflects the following factors and the consideration of the same:
“The probation officer also points out that Mr. Ortiz was not a passerby in the parking lot. He was there for some unknown reason, a reason which is even more perplexing because apparently all the other people involved in the assault on Mr. Boles were years younger than Mr. Ortiz.
“In any event, Mr. Ortiz was what the law would call a willing participant in the precursors to this homicide. And based on all of the evidence, I’m convinced that [defendant] chose to intervene in an attempt to protect his friend, Mr. Boles. Obviously, his judgment in view of the fact that he was using methamphetamine repeatedly and had not slept for days at a time. He was in possession of a firearm when he was an ex-felon, he was so enamored with the firearm that he wanted to show it off to the other people in the room. They were so unnerved that they asked him to un[l]oad the firearm before this happened. All those things show that his judgment was greatly impaired. And certainly the jury came to that same conclusion.
“But, nonetheless, one can’t ignore the fact that the thing that drove [defendant] to open the door and step out with a gun he shouldn’t have had was a concern for Mr. Boles.
“I agree with the probation officer that the factors in aggravation and the factors in mitigation qualitatively balance. The legislature says that the Court can impose three sentences for a violation of Penal Code Section 192, subdivision (a), voluntary manslaughter. Probation officer says that the middle term of six years should be imposed, and I agree.
“We turn then to the question of the use of the firearm. Here I part company with the probation officer. The probation officer accepted the defendant’s explanation that while he fired four shots, three of them were fired in the air. The defendant said he fired the first three shots in the air to try to disperse the group. He succeeded in getting the crowd to move away.
“He then says he fired the third shot in the direction or directly at the person who turned out to be Mr. Ortiz. Then he says he fired the fourth shot in the air.
“It is in[]conceivable to me that he fired the fourth shot in the air. Absolutely illogical to believe that he fired that fourth shot in the air. All of the evidence in this case leads me to the inescapable conclusion that he fired the fourth shot just like he fired the third shot. He fired it at the persons, people in the parking lot. So I find that the firearm was used repeatedly in the commission of this offense. And I find that that tips the balance and the upper term should be imposed for the use of the firearm.
“By law the upper term for that offense is ten years in the state prison. That offense must run consecutive to the term pronounced with regard to the voluntary manslaughter.”
Following the recommendation of the probation officer, the trial court imposed a concurrent midterm of two years for being a convicted felon in possession of a firearm, noting that such crime was “an aspect of the use of the firearm . . . .” The court imposed a consecutive one-third the midterm or one year for possession of methamphetamine while being armed with a loaded firearm and the upper term of three years, stayed pursuant to section 654, for possession of methamphetamine, citing “defendant’s prior criminal convictions . . . .” The court also imposed one year each for the two prior prison terms.
The court stayed the upper term pursuant to section 654; defendant does not challenge the upper term for the possession offense. The court had imposed a consecutive one-third the midterm or one year for possession of methamphetamine while armed with a loaded firearm. No one briefed the issue whether the possession of methamphetamine offense is necessarily included in the possession of methamphetamine while armed with a loaded firearm offense and we express no opinion concerning the same.
Analysis
Applying the Sixth Amendment to the United States Constitution, the United States Supreme Court held in Apprendi, supra, 530 U.S. 466 [147 L.Ed.2d 435] 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 [147 L.Ed.2d at p. 455].) 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, supra, 542 U.S. at pp. 303-304 [159 L.Ed.2d at pp. 413-414].) Cunningham recently reaffirmed its holdings in Blakely and Apprendi, rejecting the contrary holding in People v. Black (2005) 35 Cal.4th 1238 (Black I). (Cunningham, supra, 549 U.S. at pp. ___, ___ [166 L.Ed.2d at pp. 868, 873, 876].)
Citing Apprendi, Blakely and Cunningham, defendant contends that the trial court’s imposition of the upper term of 10 years for the firearm enhancement (§ 12022.5, subd. (a)) based on the court’s finding that defendant fired not only the third shot but also the fourth shot at or in the direction of the people in the parking lot was a fact neither found true by the jury nor found true beyond a reasonable doubt thus violating his rights to a jury trial, due process and proof beyond a reasonable doubt under the Sixth and Fourteenth Amendments to the federal Constitution.
Defendant argues that his “sentence also violated the due process clause of the federal constitution under Hicks v. Oklahoma (1980) 447 U.S. 343 [(65 L.Ed.2d 175)] . . . .” quoting, but not thereafter discussing its application, as follows: Where “‘a State has provided for the imposition of criminal punishment in the discretion of the trial jury . . . [t]he defendant . . . has a substantial and legitimate expectation that he will be deprived of liberty only to the extent determined by the jury in the exercise of its statutory discretion [citation], and that liberty interest is one that the Fourteenth Amendment preserves against arbitrary deprivation by the States.’” (At p. 346 [65 L.Ed.2d at p. 180].) The Attorney General interprets defendant’s Sixth Amendment claim under Blakely as encompassing his Fourteenth Amendment argument but argues in the alternative, that any distinct claim under Hicks is likewise forfeited. In his reply brief, defendant cites only Blakely and does not mention Hicks. Nor does defendant cite or discuss Hicks in his supplemental briefs. We likewise interpret defendant’s contention on appeal as raising only a claim under Blakely.
The Attorney General argues that defendant has forfeited his claims by failing to object on federal constitutional grounds. Recently, People v. Black (2007) 41 Cal.4th 799 (Black II) held that a defendant who failed to object at sentencing which occurred before Blakely did not forfeit the issue on appeal. (Id. at p. 812.) On February 20, 2004, defendant was sentenced and did not object to imposition of the upper term for the firearm enhancement. Blakely was decided on June 24, 2004, after defendant was sentenced. The issue is not forfeited. We thus reach the merits.
The firearm enhancement carried a triad. Although Cunningham did not discuss a triad for a statutory enhancement, the same rationale discussed in Cunningham applicable to a triad for a crime would apply to a triad for an enhancement. Section 1170.1, subdivision (d), provides, in relevant part, as follows: “If an enhancement is punishable by one of three terms, the court shall impose the middle term unless there are circumstances in aggravation or mitigation, and state the reasons for its sentence choice, other than the middle term, on the record at the time of sentencing.” (See also Cal. Rules of Court, former (2006) rule 4.428(b).)
As amended to conform with Cunningham, section 1170, subdivision (b), now provides, in relevant part: “When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court.” Due to an apparent legislative oversight, section 1170.1, subdivision (d) was not similarly amended. California Rules of Court, rule 4.428, however, was amended, effective May 23, 2007, to provide, in relevant part, that “[n]o reason need be given for imposing a term for an enhancement that was charged and found true.”
The Attorney General claims that the upper term for the firearm enhancement was validly imposed because the “aggravating circumstances were inherent in the jury’s findings and fully satisfied the constitutional requirement in Blakely, i.e.: ‘great violence and acts disclosing a high degree of callousness.’” The trial court did not cite this factor in aggravation to impose the upper term for the firearm enhancement. We disagree that such factor is inherent in the jury’s verdicts of guilt for voluntary manslaughter with personal use of a firearm, convicted felon in possession of a firearm, possession of methamphetamine and possession while armed with a loaded firearm. Even had the court cited such factor, the factor is neither a prior conviction nor a recidivism factor. (See Black II, supra, 41 Cal.4th at pp. 818-820 [the “fact of a prior conviction” broadly construed encompasses a defendant’s criminal history as reflected in records of the prior convictions].)
In support of his claim, the Attorney General cites volume 5 and page 1465 of the reporter’s transcript. As defendant claims, there is no such volume/page in the record.
Black II held that “imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (Black II, supra, 41 Cal.4th at p. 816.) In Black II, a jury convicted the defendant of continuous sexual abuse of a child and two counts of lewd and lascivious conduct with a child. In connection with the continuous sexual abuse count, the jury found true two allegations relevant to probation or a suspended sentence, that is, the offense was committed with force, violence, duress, menace and fear of injury and that the defendant had engaged in substantial sexual conduct. (Id. at pp. 806-807.) In imposing the upper term for the continuous abuse offense, the trial court cited the nature, seriousness and circumstances of the offense, noting the use of force on many occasions, victim vulnerability, abuse of a position of trust and the infliction of emotional and physical harm. (Id. at p. 807.) “The trial court stated that it considered not only the circumstances of the crime but also the other aggravating circumstances set out in the district attorney’s sentencing brief” which included the factor that defendant’s prior convictions were numerous and increasingly serious. The probation report set forth defendant’s criminal history. (Id. at p. 818.) Black II concluded that the “defendant’s constitutional right to a jury trial was not violated by the trial court’s imposition of the upper term sentence for his conviction of continuous sexual abuse” because “the ‘statutory maximum’ sentence to which defendant was exposed by the jury’s verdict was the upper term. . . .” (Id. at p. 816.) The trial court’s citation of the nature of the offense, specifically noting the use of force, was supported by the jury’s probation ineligibility finding (force, violence, duress, menace, and fear of injury) and rendered the defendant eligible for the upper term for the continuous sexual abuse offense. (Id. at pp. 816-817.) Black II also concluded that the trial court’s reliance upon the defendant’s criminal history by reference to the prosecutor’s sentencing brief in imposing sentence for the continuous sexual abuse offense was an additional aggravating factor which rendered the defendant eligible for the upper term. (Id. at pp. 818-820.)
Here, the jury determined that defendant personally used a firearm. While the court found defendant’s prior convictions sufficient reason to impose the upper term on one count, a count which was stayed, the court found the aggravating and mitigating factors “qualitatively” balanced to impose the midterm for voluntary manslaughter to which the use of a firearm attached. The trial court imposed the upper term for the firearm enhancement, citing its finding of fact that defendant fired the fourth shot, in addition to the third shot, at people rather than into the air. The court’s finding was not inherent in the jury’s determination. The trial court expressly stated that the factors qualitatively balanced for purposes of imposition of the midterm for voluntary manslaughter and that the only fact for imposition of the upper term for defendant’s personal use of the firearm was the number of times he shot at the crowd of people in the parking lot. The trial court’s finding in aggravation is neither a prior conviction nor a recidivism factor and imposition of the upper term based on such fact violated defendant’s right to a jury trial (Cunningham, supra, 549 U.S. at pp. ___, ___ [166 L.Ed.2d at pp. 868, 873, 876]).
People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval), citing Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705], held that denial of a right to a jury trial on aggravating circumstances is reviewed for harmless error. (Sandoval, supra, 41 Cal.4th at pp. 838-839.) “[W]e must determine whether, if the question of the existence of an aggravating circumstance or circumstances had been submitted to the jury, the jury’s verdict would have authorized the upper term sentence.” (Id. at p. 838.) “[I]f 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.” (Id. at p. 839.)
In Sandoval, a jury convicted the defendant of two counts of voluntary manslaughter and one count of attempted voluntary manslaughter. The trial court imposed the upper term for one of the counts of voluntary manslaughter and consecutive terms on the other two counts. (Sandoval, supra, 41 Cal.4th at p. 832.) In imposing the upper term, the trial court found in aggravation: “(1) the crime involved a great amount of violence; (2) defendant engaged in callous behavior; (3) defendant lacked any concern regarding the consequences of her actions; (4) the victims were particularly vulnerable because they were unarmed, inebriated, and ambushed from behind; (5) defendant was the ‘motivating force’ behind the crimes; and (6) defendant’s actions reflected planning and premeditation.” (Id. at p. 841.) Sandoval concluded that none of the factors fell within the Blakely exceptions. (Id. at pp. 837-838.) Although the factors were based upon the evidence adduced at trial, Sandoval noted that the factors “were not part of the charge and were not directly at issue in the trial” and that the defendant had no reason or opportunity “during trial to challenge the evidence supporting these aggravating circumstances unless such a challenge also would have tended to undermine proof of an element of an alleged offense.” (Id. at p. 839.) Sandoval further noted that “a reviewing court cannot always be confident that the factual record would have been the same had aggravating circumstances been charged and tried to the jury” and further that “it may be difficult for a reviewing court to conclude with confidence that, had the issue been submitted to the jury, the jury would have assessed the facts in the same manner as did the trial court.” (Id. at p. 840.) Sandoval could not find the Cunningham error harmless, reversed the upper term sentence imposed for the one count of voluntary manslaughter and remanded for resentencing “in a manner consistent with the amendments to the DSL [Determinate Sentencing Law] adopted by the Legislature.” (Id. at pp. 832, 843, 846, 858.)
As applied here, we conclude that the Apprendi/Blakely/Cunningham error was not harmless beyond a reasonable doubt. While the evidence adduced at trial may be sufficient to support a finding as to the number of shots fired into the crowd, the jury did not so determine and a rational jury may have reached a conclusion other than the court’s conclusion. As defendant notes, “[n]o percipient witness testified to the fourth shot being fired at persons as opposed to in the air.” On this record, we cannot confidently say that the jury, applying the beyond-a-reasonable-doubt standard, would have reached the same conclusion as the trial court, that is, defendant shot the fourth, as well as the third, time into the crowd. We thus conclude that the error was not harmless.
Defendant argued in his opening brief that this court should remand to the trial court “with orders to impose” the midterm. In his supplemental letter briefs, defendant argues that this court should impose the midterm because it is the “only permitted result” and remand is prohibited by the federal and state double jeopardy clauses.
Sandoval concluded otherwise, finding remand appropriate, and set forth a judicially declared procedure for cases remanded for resentencing, relying upon the newly amended DSL and amended California Rules of Court as guidelines. (Sandoval, supra, 41 Cal.4th at pp. 816-847.) Sandoval rejected the defendant’s claims that resentencing under such scheme violated her right to due process and the prohibition against ex post facto laws. (Id. at pp. 853-857.) The remand procedure does not include a jury trial on aggravating factors so double jeopardy with respect to guilt or innocence is not a concern. With respect to penalizing defendant for a successful appeal (People v. Batts (2003) 30 Cal.4th 660, 686-687, citing People v. Collins (1978) 21 Cal.3d 208, 216 [construing California constitutional prohibition against double jeopardy to bar greater sentence on retrial after successful appeal]), defendant received the upper term for the firearm enhancement and is not at risk of receiving a greater sentence for the enhancement on remand.
Defendant’s contention with respect to the abstract of judgment and sentencing minute order requiring correction to reflect the court’s oral pronouncement of judgment is rendered moot by our conclusion.
DISPOSITION
The upper term sentence for the firearm enhancement is reversed and the matter is remanded to the trial court for resentencing consistent with Sandoval. The judgment is otherwise affirmed.
We concur: HULL, J., BUTZ, J.
“Rule 4.421: [¶] (a)(1) Although death occurred within the meaning of great bodily harm, it is not considered the product of a high degree of cruelty, viciousness or callousness. This criterion is given no weight. [¶] (a)(2) The defendant used a firearm in the commission of the crime, but that has been charged and found true as an enhancement; therefore, not considered in aggravation. [¶] (a)(3) The victim participated with others in an assault upon the defendant’s friend immediately outside the motel room where the defendant was lodged. Firearm use was in direct response to thwart the attack. The victim was not particularly vulnerable. This criterion is not considered in aggravation. [¶] (b)(1) The defendant has record of one violent felony, assault upon a fellow inmate, while imprisoned in 1999. This criterion is recognized but not given substantial weight. [¶] (b)(2) Twenty-eight years old, the defendant has three felonies, the first of which for drugs in 1996, the second for same in 1997 followed by the 1999 assault in prison. [¶] (b)(3) The defendant has served three prison terms, but this criterion is not considered in aggravation since general enhancements which allege the priors have been found to be true. [¶] (b)(5) The defendant has record of probation violation which resulted in the first two prison sentences, and multiple violations of parole.”
“Rule 4.423: [¶] (a)(2) The victim was a willing participant in the assault upon Mr. Boles which led to firearm use and the victim’s demise. [¶] (a)(4) Although given minimal weight, the defendant apparently used the firearm to stop the assault upon Mr. Boles. [¶] (b)(1) The defendant’s record is remarkable by the level of prior crimes and consequent dispositions, not by the number.”
Concluding that the factors balanced, the probation officer recommended the midterm for both voluntary manslaughter and the use of the firearm.