Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Sonoma County Super. Ct. Nos. SCR478186 & SCR488135
STEIN, J.
Antonio Medina, Jr., pleaded guilty to two counts of sale of methamphetamine and one count of possession for sale. (Health & Saf. Code, §§ 11378, 11379, subd. (a).) He further admitted an allegation in connection with the possession for sale count that he was personally armed with a firearm. (Pen. Code, § 12022, subd. (c).) In a separate case, he pleaded guilty to possession of stolen property. Under the terms of the negotiated disposition, the remaining counts were dismissed with a Harvey waiver (People v. Harvey (1979) 25 Cal.3d 754). The plea was open to the court with respect to sentencing, except for the condition that the sentence in the second case be concurrent with the sentence imposed in the first.
The court sentenced defendant to the upper term of three years for possession for sale of methamphetamine, enhanced by the upper term of five years for the personal arming enhancement. The court imposed consecutive one-third middle terms of one year for each of the two counts of selling methamphetamine, and the agreed concurrent term on the possession of stolen property count.
On appeal defendant contends (1) the court, in violation of his Sixth Amendment rights as defined in Cunningham v. California (2007) 549 U.S __ [127 S.Ct. 856] (Cunningham), imposed the upper term based upon facts neither found by a jury nor admitted by defendant; (2) the court violated the proscription against dual use of fact by relying on the fact that he had a loaded firearm in selecting the upper term because this same fact underlay the personal arming enhancement; and (3) the court failed to state separate reasons for imposing the upper range of five years for the personal arming enhancement.
We shall affirm the judgment.
Facts
On November 28, 2005, an undercover detective purchased half an ounce of crystal methamphetamine from defendant for $350 in cash. On December 1, 2005, defendant offered to sell the detective an ounce of crystal methamphetamine for $700, but when the transaction occurred he told the detective he only had one-half of an ounce. The detective paid defendant $340, but when he had the substance tested, the quantity measured considerably less than half an ounce. The detective brought the shortage to defendant’s attention. On December 6, 2005, to make up for the shortage, defendant sold the detective somewhat more than an once for $600. The largest transaction took place on December 14, 2005, when defendant agreed to sell the detective seven ounces for $3,700. The quantity he actually gave the detective measured at less than five ounces. Defendant was arrested after this transaction. A warrant search of his residence resulted in the discovery of a vacuum sealer and seal-a-meal bags, an electronic scale, packaging materials, a baggie containing a suspected cutting agent, pay/owe records, a loaded 12-gauge shotgun, and additional rounds of buckshot.
On May 19, 2006, the police conducted another search while defendant was free on bond. The officers found a new packaging machine and supplies in the kitchen, a two-and-one-half-ounce package of methamphetamine in the washing machine, and a two-gram package of methamphetamine and a functioning digital scale in a garbage can in the backyard. The officers also found a large number of vinyl records stolen in a residential burglary.
The November 28, December 6, and December 14 transactions and the first search underlay the guilty plea to two counts of selling methamphetamine and admission to the arming enhancement in case No. SCR 478186. As a result of the plea, additional counts in that case for possession for sale and arming enhancements were dismissed. The vinyl records found in the May 19, 2006 search supported the receiving stolen property count in case No. SCR 488135. The counts dismissed in that case, pursuant to a Harvey waiver, were for possession of methamphetamine and an enhancement allegation that defendant was on bail or released on his own recognizance when he committed the offense.
At the sentencing hearing the court stated the following reasons for selecting the aggravated term: “The court finds A10 [former Cal. Rules of Court, rule 421.1(a)(10)] the crime involved a large quantity of contraband]; [¶] B2 [former rule 421.1(b)(2)] . . . his prior convictions as an adult are numerous. That alone is not the reason the court is aggravating it. But they are. . . . But I would not have done that by itself. No, I would not. And your lawyer’s right [that the prior convictions were not all for serious crimes]; [¶] B4 [former rule 421.1(b)(4)], you were [on] conditional sentence at the time of the present offense. That alone I would not aggravate this case, but I’m taking these all in total. Further, as an enhancement pursuant to [Penal Code section] 12022[, subdivision] (c). [¶] B5 [former rule 421.1(b)(5)], his prior performance on a grant of conditional sentence was unsatisfactory and—now, I am accepting and I believe the court has the option of doing this, the representation by [the district attorney] that this was a form of crystalline methamphetamine. That would be pursuant to [Penal Code section] 1170.74 . . . . The court wants to make clear . . . that the crime involved a large quantity of contraband. That alone in this particular case, taking everything in account, would be . . . adequate to give an aggravated term. So that alone is the reason the court will do it. But together with all those other reasons further makes the court’s decision even easier. [¶] The court also takes into consideration he had a loaded firearm, a shotgun which was obviously for one purpose. And that also—all those reasons the court believes you were in the business of dealing dope in amounts for business purposes.”
All references to rules are to the California Rules of Court.
Discussion
I.
Cunningham Error
Defendant contends that a remand for resentencing is necessary because the court’s decision to impose the upper term was based primarily upon a single aggravating factor not found by a jury, i.e., that a large quantity of contraband was involved, in violation of his federal Sixth Amendment right to a jury trial and due process. (See Cunningham, supra, 127 S.Ct. 856.)
The California Supreme Court, in People v. Black (2007) 41 Cal.4th 799 (Black II), held “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.” (Id. at p. 813.)
“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. [Citation.] 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.” (People v. Sandoval (2007) 41 Cal.4th 825, 836-837.) The latter exception was recognized in Almendarez-Torres v. United States (1998) 523 U.S. 224 (the Almendarez-Torres exception).) Therefore, if the trial court has found at least one aggravating factor that falls within either of these exceptions, the federal Constitution does not preclude it from imposing an upper term sentence based on that and other aggravating factors that do not fall within these exceptions. (Black II, supra, 41 Cal.4th at pp. 813, 818-819.)
Here, at least one of the aggravating factors found by the trial court falls within the Almendarez-Torres exception, i.e., that defendant’s prior convictions were numerous. In Black II, supra, 41 Cal.4th at pp. 818-819, the court rejected the argument that this factor falls outside the Almendarez-Torres exception because it entails factfinding beyond the bare fact of the prior conviction. The court reasoned that, like the fact of the prior convictions, the determination whether the convictions are numerous or of increasing seriousness requires only a consideration of the number, dates, and offenses, and the range of punishment for each offense. (Id. at p. 820.) For the purpose of determining whether defendant’s federal Sixth Amendment rights were violated, it is immaterial that the court stated it would not have imposed the aggravated term based upon this factor alone, or that it placed primary importance upon the quantity of contraband involved in the offense. It is sufficient under our Supreme Court’s analysis in Black II, supra, 41 Cal.4th 799, that this factor was properly found by the court pursuant to Almendarez-Torres, supra, 523 U.S. 224, and that this factor rendered defendant eligible for the upper term. Therefore, in accordance with our Supreme Court’s holding in Black II, defendant was not legally entitled to the middle term, and his Sixth Amendment right to a jury trial was not violated by the imposition of the upper term, based upon this and other aggravating factors that do not fall within the Almendarez-Torres exception.
Black II, supra, 41 Cal.4th 799, holds the existence of only one aggravating factor properly found by the court suffices to avoid any violation of defendant’s Sixth Amendment rights. Therefore it is not necessary to reach the question whether the court’s findings that he was on a conditional sentence when he committed the offense, or that his performance on a conditional sentence was unsatisfactory, also fall within the Almendarez-Torres exception. Nor is it necessary to reach the question whether the Harvey waiver permitted the court to rely upon facts underlying the dismissed offenses.
II.
Dual Use of Facts and Failure to State Reasons for Selecting Upper Term for the Arming Enhancement
Defendant next contends that the court violated the proscription against dual use of facts by relying upon the fact that he kept a loaded shotgun with the drugs as one of the many factors it cited in support of its decision to impose the aggravated term. Defendant asserts the court could not properly rely upon the fact that the shotgun was loaded as an aggravating factor because it was also the factual basis for the arming enhancement pursuant to Penal Code section 12022, subdivision (c). (See Pen. Code, § 1170, subd. (b).)
No dual use of facts occurred. Being armed with a firearm during the commission of an offense does not require that the firearm be loaded or even operational. (See, e.g., People v. Bland (1995) 10 Cal.4th 991, 1005; People v. Nelums (1982) 31 Cal.3d 355, 359-360 [enhancement may be based on passive display of an inoperable gun].) Therefore, the aggravating fact that the gun was also loaded is not the same as the fact necessary to impose the enhancement.
Defendant also contends that the court failed to state its reasons for selecting the five-year term for the arming enhancement. (See Pen. Code, § 12022, subd. (c) [range is three, four or five years].) Defendant cannot raise this contention on appeal because defense counsel did not make a timely objection in the trial court, when the error could easily have been corrected. (People v. Scott (1994) 9 Cal.4th 331, 354 [objection to the failure of the court to state its reasons for sentencing choices is waived unless it is first raised in the trial court].) Defendant acknowledges that the issue is waived, but contends that counsel rendered ineffective assistance by failing to object. This contention fails because defendant cannot demonstrate a reasonable probability that, if counsel had objected, the sentence would have been any more favorable. (See Strickland v. Washington (1984) 466 U.S. 668, 689.) The court prefaced its statement of reasons by stating that it distinguished between individuals who commit drug offenses because of their addiction, and those who are engaged in drug sales as a business, and expressed its view that defendant fell into the latter category. It unequivocally stated its intention to sentence defendant to “the maximum . . . allowed under the law. I don’t want you out in the streets.” The court found five aggravating factors. Although defendant argued that he had pleaded guilty at an early stage of the proceedings, and the probation report stated that defendant’s prior performance on probation had been satisfactory, the court did not state that it found any mitigating factors. An objection might have caused the court to correct its oversight, by stating its reasons, but in light of the four aggravating factors cited by the court in addition to the fact that the firearm was loaded, it is not reasonably probable that an objection would have changed its sentencing choice to one more favorable to defendant
At the sentencing hearing the court started to refer to its sentencing choice and reasons as to the enhancement, but then returned to its litany of reasons for imposing the upper term, and never stated separate reasons why it chose the five-year term for the arming enhancement.
Conclusion
The judgment is affirmed.
We concur: MARCHIANO, P. J., SWAGER, J.