Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CRF04-557
DAVIS, P.J.
Acquitting him of murder, a jury convicted defendant David Wayne Norton, Jr., of the lesser included offense of involuntary manslaughter (sustaining an allegation that he was personally armed with a firearm), and of being a convicted felon in possession of a firearm. The court imposed the upper term for the manslaughter conviction (based in part on his serving a prior prison term, and numerous or increasingly serious previous convictions), the upper term for the firearm enhancement (based on his “status . . . as a convicted felon” and the manner in which he used the firearm), and imposed a consecutive sentence for the possession conviction (finding, inter alia, that he had antecedent possession for a purpose independent of the commission of manslaughter).
On appeal, the defendant contends the court erred in failing to instruct the jury that it must unanimously agree on facts underlying the possession conviction, and to require the jury to make express findings on these facts. He also contends that the facts as developed at trial preclude imposing the firearm enhancement because the manslaughter conviction involved a firearm. Finally, he asserts that imposition of the upper terms and consecutive sentences violate his right to a jury trial. We shall affirm.
FACTS
Given the nature of the issues on appeal, we decline to provide an exhaustive recitation of the facts developed at trial.
In response to a confrontation with one relative, which involved a statement perceived as a threat of violence against a second relative, the defendant and several others (including the victim, who was yet another relative) drove in a white Oldsmobile Achieva owned by the victim’s grandmother to the street where the maker of the threat lived. A melee ensued. Someone by the Achieva fired a gun four or five times at the opponents. The victim was shot in the neck from behind, dying from a torn carotid artery. The pathologist retrieved a .22-caliber bullet from the victim’s jaw. The opponents denied possessing or firing any weapons. The victim’s brother and another member of their party both claimed they were unaware of any guns being in the car.
Police recovered a damaged .22 revolver with a broken ivory-colored plastic handle a short distance from the scene of the shooting. There were five expended rounds in the chamber. The barrel’s characteristics were consistent with the markings on the bullet retrieved from the victim. Broken pieces of plastic left in the street at the scene of the shooting were consistent with the handle of the .22 revolver. The police found a .22 cartridge on the floor of the Achieva, and a box of .22 cartridges were in the glove box (which had characteristics similar to the bullet retrieved from the victim). In a search of the trunk, the police located a .32-caliber revolver under the spare tire in the wheel well. It was operable, but did not appear to have been fired since its last cleaning.
The defendant phoned a detective about a week after the shooting. He said the victim “had two guns that day, and he had sold them to me just a little while before . . . .” He had not planned on using the guns, which were still in the victim’s car, in confronting his other cousin’s opponents. The defendant fired the gun in defense of himself and the others when their opponents rushed at them, believing them to be armed. He emptied his gun shooting in their direction. Initially, he thought the others had shot his cousin, and only discovered, in the next day or so, that he had instead shot his cousin by accident, whom he thought of as a brother. A jailhouse informant testified that the defendant had told him he had pulled a gun from under the car seat to shoot at someone threatening the victim with a baseball bat, but the victim had gotten in the way.
DISCUSSION
I
The defendant contends that the presence of a .32 revolver in the car in addition to the recovered .22 revolver, and his antecedent possession of both guns, required the trial court to instruct the jury on the need for unanimous agreement on the basis of his possession conviction. Admixed into this argument appears to be the distinct claim that Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi) required the trial court to obtain express jury findings on the facts relevant in deciding whether Penal Code section 654 (hereafter, undesignated section references are to this code) allowed imposition of sentence on both the possession conviction and the gun-use enhancement.
As the heading for this claim adverts (albeit adumbratively) to the need for jury findings, we do not impose the forfeiture sanction for a “‘lurking’” argument. (Imagistics Internat., Inc. v. Department of General Services (2007) 150 Cal.App.4th 581, 593, fn. 10.) We postpone consideration of this latter assertion until part III of the Discussion.
The possession of multiple guns can give rise to the need for a unanimity instruction if there are facts unique as to the possessory aspect surrounding each weapon. (People v. Wolfe (2003) 114 Cal.App.4th 177, 184-185.) A failure to comply with this requirement can be harmless beyond a reasonable doubt if the defense as to each gun is the same. (Id. at p. 188.)
The amended information alleged only that the defendant was a convicted felon in possession of “a certain firearm.” The instructions did not specify which gun underlay the possession count and the use enhancement. The prosecutor argued only about the circumstantial evidence connecting the .22 revolver with the shooting (and excluding the .32), and evidence that the defendant had grabbed that gun from under his seat. Neither party referred to the possession count in the course of argument.
For this reason, the People’s claim that the unanimous verdict on the use enhancement necessarily determined that they agreed on a single gun for the possession conviction is not dispositive.
The defendant admitted to the detective that he had acquired ownership of both guns from the victim earlier on the day of the shooting. The defendant does not identify any evidence of any division of his possession of the two guns into distinct criminal acts, so the unanimity requirement does not apply to the temporal component of his possession of them. (Cf. People v. Spirlin (2000) 81 Cal.App.4th 119, 130-131 [a felon’s possession of same gun on different occasions is one continuous offense for purposes of § 654].) As to the possession of distinct firearms, there cannot be any possible prejudice to the defendant in the failure to require unanimous jury agreement on the gun underlying the possession count, because he did not present distinct defenses. To the contrary, he did not present any defense as to either possession. Therefore, we are convinced beyond a reasonable doubt that a unanimity instruction would not have made any difference in the outcome.
II
In a nutshell, the defendant contends the jury necessarily determined that he was guilty under the “unlawful act” theory of involuntary manslaughter (also known as misdemeanor manslaughter (see People v. Boyer (2006) 38 Cal.4th 412, 473)), because his status as a convicted felon precluded any reliance on a lawful act under the “gross negligence” theory. Since the underlying misdemeanor in this case was the threatening exhibition of a gun, he contends Apprendi compels the conclusion that this gun use became an element of involuntary manslaughter on the facts of this case, which prevents the imposition of the enhancement for using a gun in the commission of the killing. (See § 12022.5, subd. (a) [cannot impose enhancement where “use of a firearm is an element of th[e] offense”].)
The trial court instructed the jury on both theories and the underlying misdemeanor.
Whatever the merits of the defendant’s reasoning regarding the necessary basis of the jury’s verdict, he recognizes that both People v. Read (1983) 142 Cal.App.3d 900, 906 and People v. Quesada (1980) 113 Cal.App.3d 533, 540, look only at statutory elements of involuntary manslaughter in the abstract in deciding whether gun use is a necessary element precluding imposition of the enhancement for gun use; since involuntary manslaughter in theory does not require a gun for its commission, enhancing the conviction is permissible even where the underlying misdemeanor is for gun use. (Cf. People v. Hansen (1994) 9 Cal.4th 300, 317 [second degree felony murder premised on firearm felony; the phrase “‘element of the offense’” signifies essential component of legal definition of crime “considered in the abstract”]; People v. Ross (1994) 28 Cal.App.4th 1151, 1156 [voluntary manslaughter in the abstract does not have gun use as an element]; cf. People v. Reed (2006) 38 Cal.4th 1224, 1230-1231 [in determining elements of offense for identifying lesser included offenses, examine only the statutory elements without regard for charged enhancements].) However, he once again waves his Apprendi wand and insists that his right to a jury trial supersedes the reasoning of these cases, and we must now focus on the facts supporting the verdict.
People v. Izaguirre (2007) 42 Cal.4th 126 (Izaguirre) held that the sole effect of Apprendi with respect to enhancements is to preclude retrial under principles of double jeopardy, because for that purpose the enhancement must be considered an element of the offense; however, Apprendi does not compel the consideration of an enhancement as an element of the underlying offense for the purpose of identifying lesser included offenses. (Izaguirre, supra, 42 Cal.4th at pp. 130-134.) It therefore rejected the defendant’s claim that it must strike his gun-use enhancements as being included in the underlying special-circumstance murder conviction (for a drive-by shooting).
Under the authority of Izaguirre, we reject the defendant’s claim that the body of authority allowing a gun-use enhancement for a killing that happened to involve a gun is no longer viable. As a result, he is not entitled to the relief he seeks.
III
Based on Apprendi, Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] held that the use of a sentencing factor (other than recidivism) to increase a prison term beyond the statutory maximum for the facts necessarily reflected in the jury’s verdict violates the defendant’s constitutional right to a jury trial. (Blakely, supra, at pp. 301, 303-304.) People v. Black (2005) 35 Cal.4th 1238 (Black I), vacated and remanded sub nom. Black v. California (2007) ___ U.S. ___ [167 L.Ed.2d 36], reiterated People v. Black (2007) 41 Cal.4th 799 (Black II), initially concluded that this principle did not apply to the selection of the upper term under our sentencing laws. (Black I, supra, 35 Cal.4th at p. 1244.) Cunningham v. California (2007) 549 U.S. ___, ___ [166 L.Ed.2d 856, 874-875] made short shrift of Black I’s efforts to distinguish our sentencing procedures, and found them to suffer the same constitutional infirmity identified in Blakely. On remand, Black II held that as 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,” it does not violate the defendant’s constitutional rights for a court to consider other factors in sentencing him. (Black II, supra, 41 Cal.4th at p. 816.)
In imposing the upper term for the manslaughter conviction, the trial court relied on facts related to the recidivism of the defendant. Under Black II, these are legally sufficient to expose the defendant to the upper term (41 Cal.4th at pp. 816, 819-820), at which point the trial court could properly consider any other factors without violating his right to a jury trial. Black II also found that a jury does not need to determine the sentencing factors underlying the imposition of a consecutive term. (Id. at p. 823.) We therefore reject these contentions.
In his reply brief, the defendant expresses his disagreement at length with Black II’s conclusions on various grounds. He may take these criticisms up with the authors of Black II; we are not empowered to diverge from their pronouncements. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
As for the upper term for the enhancement, the defendant argues that the trial court could not rely on his possession conviction to impose an upper term on the enhancement for his use of the gun (citing § 654). He correctly maintains that the only other factor on which the court relied represents a vague, subjective criterion that is unlikely to withstand the test for harmless error. (People v. Sandoval (2007) 41 Cal.4th 825, 839-840 (Sandoval).) He therefore contends we must reduce his sentence on the enhancement to the middle term. We disagree, however, with the defendant’s interpretation of the record.
He bases this result on arguments rejecting the procedures established in Sandoval for remanding and resentencing. As we ultimately do not find any reversible sentencing error, we do not need to consider these contentions.
Initially, the trial court stated that it would impose the upper term because it “took into account the fact that he was a felon in possession of a firearm.” After listening to argument, the court stated (as we noted at the outset) it would base the upper term on the manner the defendant used the gun “in addition to the status of the [d]efendant as a convicted felon.” We do not read this as relying on his possession conviction to aggravate the use enhancement. Rather, it was his status as a previously convicted felon which made his use of the gun in his possession merit an upper term. The defendant does not provide a cogent argument that his acquisition of the gun was an indivisible part of a transaction (Neal v. State of California (1960) 55 Cal.2d 11, 19, reaffirmed in People v. Latimer (1993) 5 Cal.4th 1203, 1216 [interpreting § 654]) ending with his fatal shooting of his cousin for reasons arising after his purchase of the gun, such that he could not be punished both for the possession and the use despite the common neutral factor of his status as a convicted felon. (Cf. In re Hayes (1969) 70 Cal.2d 604, 610 [driving is simply neutral factor common to two distinct criminal acts of lacking a valid license and being under the influence of alcohol, so § 654 does not preclude multiple punishment].) As a result, the court gave a constitutionally valid factor to support the upper term for the use enhancement, allowing it to rely on any other factor as well.
Given that the court relied on the prior prison term as well as prior convictions to impose the upper term for manslaughter, there would not be any dual use of facts in relying on the prior conviction to impose the upper term for the enhancement. (People v. Velasquez (2007) 152 Cal.App.4th 1503, 1515-1516 & fn. 12; cf. People v. Hurley (1983) 144 Cal.App.3d 706, 709 [prior prison term is a factor distinct from prior conviction].)
This leaves his argument (the consideration of which we deferred in part I, ante) that the trial court’s decision to impose sentence on both the possession conviction and the use enhancement required express jury findings on the facts pertinent to the criteria of section 654. As Black I noted in the course of its conclusion that Apprendi did not apply to the decision to impose consecutive sentences, “Apprendi does not apply to the factual determinations made by the trial judge in connection with the decision whether to stay sentences on particular counts under the provisions of section 654 prohibiting multiple punishment. [Citations.] Nothing in Blakely or Booker undermines the conclusions reached in these cases.” (35 Cal.4th at pp. 1263-1264 [citations deleted].) And Black II noted, “. . . Cunningham does not call into question the conclusion we previously reached regarding consecutive sentences.” (Black II, supra, 42 Cal.4th at p. 823.) In one of the cases Black I cited with approval, the opinion emphasized that section 654 acts only to reduce the maximum sentence that a court might otherwise impose on a defendant based on a jury’s verdicts; Apprendi’s focus is limited to judicially determined sentencing factors that increase a defendant’s sentence for the underlying conviction. (People v. Cleveland (2001) 87 Cal.App.4th 263, 270-271; cf. People v. Benitez (2005) 127 Cal.App.4th 1274, 1278 [no need for jury findings on eligibility for probation].) Nothing in Cunningham holds to the contrary on federal constitutional grounds. We therefore adhere to this authority and reject the defendant’s argument.
United States v. Booker (2005) 543 U.S. 220 [160 L.Ed.2d 621].
DISPOSITION
The judgment is affirmed.
We concur: BUTZ, J., CANTIL-SAKAUYE, J.