Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. BA255819.Craig E. Veals, Judge. Affirmed and remanded with instructions.
Gregory L. Cannon, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson and Dane R. Gillette, Chief Assistant Attorneys General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Mary Sanchez, Michael R. Johnsen and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
ZELON, J.
Appellant and defendant Oscar Medina was convicted by a jury of possessing a controlled substance. He was convicted by the court of two counts of assault with a firearm with gang enhancements. Medina was sentenced to a total term of four years on one of the assault counts, with a four-year sentence on the other assault count and a three-year sentence on the possession count, all ordered to run concurrently. On appeal, he argued: 1) the trial court failed to announce the judgment before imposing sentence and did not make the true findings as to the enhancements; 2) the enhancements should have been stricken according to the terms of the jury waiver; and 3) the sentence violates Blakely v. Washington (2004) 542 U.S. 296 (Blakely). We previously affirmed the judgment and conviction with instructions to the trial court concerning custody credits; now, on remand from the United States Supreme Court, we again affirm and remand with instructions.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
We summarize the evidence in the light most favorable to the judgment. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
One summer night, victim Elizabeth Zacharias and two friends, James Perez and Daisy Bonilla, were in front of an apartment building. A red Chevy Blazer drove by with its windows closed. Minutes later, the Blazer drove by a second time with a long barrel shotgun protruding from the open window of the front passenger seat. Perez saw the forehead of the person in the passenger seat. The passenger fired the gun two to five times at the group. Zacharias was hit in the head, arm and back.
At the hospital, Zacharias told police she had been shot by Medina, who was known as Shadow in the Headhunters gang. She and Perez identified Medina as the shooter in a photographic lineup. A week later, Zacharias removed pellets from her arm that were found to be consistent with the shotgun shells recovered from the scene of the shooting.
The shooter and the victim lived in the same neighborhood and were acquaintances. Although she was evasive at trial, Zacharias had told police that Medina allegedly attempted to shoot her in 2002, but she did not report it because she had not been hit. Police believed the shooting was gang related, because it took place in gang territory, Medina possessed gang paraphernalia, and Zacharias was likely affiliated with the rival Diamond Street gang.
At the time of Medina’s arrest, two baggies of methamphetamine were found on his person.
The information charged Medina with attempted murder of Zacharias (Pen. Code, §§ 664, 187, subd. (a)) (count 1); assault with a firearm as to Zacharias, Perez and Bonilla (§ 245, subd. (a)(2)) (counts 2 to 4); and possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)) (count 5). It also alleged that Medina personally inflicted great bodily injury (GBI) in counts 1 and 2, within the meaning of section 12022, subdivision (a). As to counts 1 through 4, the information alleged Medina: personally used a firearm (§§ 12022.5, 12022.53, subd. (b)); personally discharged a firearm (§ 12022.53, subd. (c)); personally discharged a firearm that caused great bodily injury (§ 12022.53, subd. (d).) It further alleged that the crimes in counts 1 through 4 were committed for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further and assist in criminal conduct by gang members. (§ 186.22, subd. (b)(1).)
All further statutory references are to the Penal Code unless otherwise indicated.
The case was tried to a jury. Pursuant to section 1118.1, the court granted Medina’s motion to dismiss count 4. The jury convicted Medina of count 5 but deadlocked on the remaining counts. The trial court declared a mistrial on counts 1 through 3 and denied Medina’s motion to dismiss. Sentencing was stayed pending retrial of the remaining counts.
On retrial, Medina waived his right to jury trial in exchange for a guarantee that he would not receive a sentence in excess of five years. The prosecutor explained and the court agreed that the sentence limit would mean having to strike the premeditation language in count 1 as well as the GBI, gang, and personal weapons use allegations. However, the People did not move to strike, and the court did not strike, the special allegations in the information.
At the retrial’s conclusion, while the court acknowledged defense counsel’s reminder that no actual judgment had been pronounced, it nonetheless imposed sentence on Medina without orally pronouncing its verdicts or making any reference to the special allegations. It found no factors in mitigation and the following factors in aggravation: 1) the crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness (Cal. Rules of Court, rule 4.421(a)(1)); 2) the defendant was armed with or used a weapon at the time of the commission of the crime; (rule 4.421 (a)(2)); 3) the victim was particularly vulnerable; (rule 4.421(a)(3)); 4) the defendant induced others to participate in the commission of the crime or occupied a position of leadership or dominance of other participants in its commission; (rule 4.421(a)(4)); 5) the defendant was convicted of other crimes for which consecutive sentences could have been imposed but for which concurrent sentences are being imposed (rule 4.421(a)(7)); and 6) the manner in which the crime was carried out indicates planning, sophistication, or professionalism (rule 4.421(a)(8)).
The minute order showed that Medina was acquitted of attempted murder in count 1 and convicted of assault with a firearm in counts 2 and 3. It further showed two of the aggravating factors the court recited orally: that Medina induced others to participate in the assaults and that he committed the crimes with premeditation. The court selected count 2 as the base term and imposed the high term of four years. The court also imposed the high terms of four years on count 3 and three years on count 5 to run concurrently to the sentence imposed on count 2. Probation was denied as to count 5. The abstract of judgment did not list any enhancements.
Medina appealed. In an unpublished opinion issued after the California Supreme Court had decided People v. Black (2005) 35 Cal.4th 1238 (Black I) but before the United States Supreme Court disapproved Black I in Cunningham v. California (2007) 549 U.S. ___, 127 S.Ct. 856 (Cunningham), this court affirmed the conviction and sentence as mandated by Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455. (People v. Medina (Nov. 15. 2005, B177854) [nonpub. opn.].)) On February 20, 2007, the United States Supreme Court granted Medina’s petition for certiorari, vacated the judgment, and remanded the cause to this court for further consideration in light of Cunningham.
DISCUSSION
I. UNDER THE CIRCUMSTANCES OF THIS CASE, THE VERDICTS ON COUNTS 2 AND 3 NEED NOT BE REVERSED FOR LACK OF AN ORAL PRONOUNCEMENT
Medina contends the trial court’s failure to make and enter express verdicts operates as an implied acquittal as a matter of law both on counts 2 and 3 of the information.
“A general verdict upon a plea of not guilty is either ‘guilty’ or ‘not guilty.’” (§ 1151.) “When a jury trial is waived, the judge or justice before whom the trial is had shall, at the conclusion thereof, announce his findings upon the issues of fact, which shall be in substantially the form prescribed for the general verdict of a jury and shall be entered upon the minutes.” (§ 1167, italics added.)
Here, the court asked and the parties affirmed that there was no legal cause why sentence should not be pronounced. They waived arraignment for judgment. When the court began to impose the sentence, defense counsel interposed and the following colloquy occurred:
“[DEFENSE COUNSEL]: The court hasn’t pronounced his actual judgment on the case.”
“THE COURT: No, I haven’t yet, but I’m noting –“
“[DEFENSE COUNSE]: I’m sorry.”
The court then imposed sentence without orally pronouncing its verdicts on counts 2 and 3. However, the court’s statements and act of sentencing clearly demonstrated that it convicted Medina on those counts. Defense counsel appeared satisfied at the close of the hearing that the verdicts had been pronounced. When the court repeatedly asked if there was anything further, defense counsel requested only an order for Medina to have an eye examination. The sentencing minute order recorded that Medina was convicted of assault with a firearm in counts 2 and 3.
As the parties recognize, the trial court did not use the language of a formal verdict. The court did not expressly state Medina was guilty in counts 2 and 3 or that the allegations regarding firearm use alleged in the information were true. The trial court, nevertheless, imposed sentence on counts 2 and 3 along with count 5 for which Medina had already been found guilty by the jury. Linking the three counts and imposing the sentences implied that the court found Medina guilty on counts 2 and 3.
These statements of the trial court and the waiver for a jury trial on the remaining counts distinguish the present case from our decision in People v. Gutierrez (1993) 14 Cal.App.4th 1425. In Gutierrez, there was not a single mention of the yet-untried prior felony conviction allegations until after the trial court had pronounced sentence and had advised the defendants of their appeal rights. There was no attempt to prove the truth of the allegations and the trial court made no findings whether the allegations were true or not. The trial court simply decided to resolve the problem by staying punishment on the enhancements. We held the trial court’s failure to make findings was the same as finding the allegations were “not true.” (Id. at p. 1440.)
In this case we are able to affirm the court’s imposition of the guilty verdicts only due to the unique combined circumstances of the extensive prior jury trial, a waiver of a jury on retrial, and the court’s statement linking the guilty jury verdict on count 5 to counts 2 and 3. We nevertheless emphasize that in other circumstances a trial court risks reversible error in the event it fails to articulate on the record an express, formal, and unambiguous verdict and finding whether special allegations are true or untrue.
II. THE TRUE FINDINGS ON THE SPECIAL ALLEGATIONS MUST BE STRICKEN
Medina contends and the People concede that the trial court did not expressly find true the special allegations of GBI, gang and personal weapons use.
Medina waived his right to be retried by a jury in exchange for a guarantee that he would not face a sentence in excess of five years. The prosecutor concluded that “[t]o stay within that range, we will also have to strike in addition to the premeditated language in count one, will strike the GBI allegations, the gang allegations, and all the personal weapon use allegations.” Although the allegations were not stricken, the parties clearly believed the allegations would no longer be considered, because defense counsel subsequently objected on the grounds of relevancy to testimony on the Headhunters’ history, because “there’s no charge that this is done for the benefit of a street gang or anything of that sort.” The prosecutor did not disagree, explaining the testimony went only to the motive for the shooting.”
The court’s oral pronouncements, the sentencing minute order and abstract of judgment do not make reference to the special allegations. Accordingly, the record shows that the trial court did not find the special allegations to be true.
We remand for the trial court to recalculate the custody credits pursuant to section 4019. (People v. Philpot (2004) 122 Cal.App.4th 893, 908.)
III. THE IMPOSITION OF UPPER TERMS IN SENTENCING DID NOT VIOLATE THE SIXTH AMENDMENT RIGHT TO JURY TRIAL
Medina contends that the imposition of the upper term sentence violated his Sixth Amendment right to a jury trial as set forth in Apprendi v. New Jersey (2000) 530 U.S. 466, Blakely, supra, 542 U.S. 296, and Cunningham, supra, 127 S.Ct. 856.
One of the reasons given by the trial court to justify the high term was that Medina was convicted of other crimes for which consecutive sentences could have been imposed but for which concurrent sentences were being imposed. California Rules of Court, rule 4.421(a)(7) recognizes this as a proper basis for imposing an upper term sentence. The fact that Medina had been convicted of other crimes for which consecutive sentences could have been imposed is a fact reflected in the verdicts—here both the jury verdict on the possession count and the court’s verdict after a bench trial on the assault charges. Facts reflected in the jury’s verdict may, consistent with the Sixth Amendment, be used to increase a defendant’s statutory maximum sentence (Blakely, supra, 542 U.S. at p. 303); when a defendant has waived his right to a jury trial on guilt, the fact of the court’s guilty verdict may similarly be used to increase a defendant’s statutory maximum sentence. As a matter of law, the court could have ordered the terms for the three convictions to run consecutively (§§ 669, 1170.1, 654), but the court exercised its discretion to impose them as concurrent terms.
In People v. Black (2007) 41 Cal.4th 799, 813 (Black II), the California Supreme Court ruled that “if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, [supra, 542 U.S. 296,] the defendant is not ‘legally entitled’ to the middle term sentence, and the upper term sentence is the ‘statutory maximum.’” Therefore, the Supreme Court held, it does not violate the Sixth Amendment for a trial judge to engage in additional fact finding with respect to other aggravating circumstances once a single constitutionally compliant aggravating circumstance has been identified. (Id. at p. 816 [“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”].)
We are bound by the Supreme Court’s decision in Black II, supra, 41 Cal.4th 799. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455). Accordingly, we hold that the imposition of the upper term sentence was authorized by fact that Medina was convicted of multiple crimes for which consecutive sentences could have been imposed, but for which concurrent sentences were imposed instead, and that in light of that constitutionally proper aggravating factor the court’s reliance on other aggravating factors that were neither submitted to a jury nor admitted by Medina did not violate his constitutional right to a jury trial.
DISPOSITION
Upon remand, the superior court shall recalculate the custody credits and cause its clerk to prepare an amended sentencing minute order and abstract of judgment consistent with this opinion. In all other respects, the judgment is affirmed.
We concur: JOHNSON, Acting P. J., WOODS, J.