Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. TA082603, Steven C. Suzukawa, Judge
Law Offices of Kiana Sloan-Hillier and Kiana Sloan-Hillier, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan Sullivan Pithey and Lance E. Winters, Deputy Attorneys General, for Plaintiff and Respondent.
KITCHING, J.
Freddy Ozuna (Ozuna) appeals from the judgment entered following a jury trial which resulted in his conviction of assault with a firearm (Pen. Code, § 245, subd. (a)(2)), during the commission of which he personally used a firearm (§ 12022.5, subd. (a)) and personally inflicted great bodily injury (§ 12022.7, subd. (a)). The trial court sentenced Ozuna to 14 years in prison.
All further statutory references are to the Penal Code unless otherwise indicated.
We conclude Ozuna’s contentions, that the trial court violated the mandate of Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] when it imposed the upper term sentence for his conviction of assault with a firearm and imposed the upper term enhancement for his personal use of a firearm during the offense, are without merit. Accordingly, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
1. The prosecution’s case.
Viewed in accordance with the usual rules of appellate review (People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Johnston (2003) 113 Cal.App.4th 1299, 1303-1304), the evidence established that on November 26, 2005, Ozuna spent the day at his mother’s home with his eight-year-old daughter, Kimberly (Kimberly), and his five-year-old daughter, Jocelyn (Jocelyn). That evening, Ozuna was outside of the house, having a conversation with a man. Kimberly, who was tired, went outside several times and asked Ozuna to come in so they could go to sleep. At some point, Ozuna came into the house and told Kimberly and Jocelyn to get up because he was going to take them to their mother. The two girls got into the back seat of Ozuna’s truck and he drove them to their Aunt Mago’s (Mago) house. As he was driving, Ozuna telephoned the children’s uncle, Mario Aguilar (Aguilar), to tell him to have Mago telephone their mother. Ozuna wished to have the children’s mother meet him at Mago’s house so that she could take the girls home with her. Ozuna and the girls’ mother were separated and used Mago’s house as a “drop off point for the children.” As they were driving, Kimberly noticed that a gun was “in the middle” of the truck, next to her father. The gun was between two and three feet long.
At approximately 1:00 a.m. on November 27, 2005, Aguilar was at home watching television. He was drinking a beer, but was not drunk. The telephone rang and Aguilar answered it. Ozuna, who was on the other end, told Aguilar he wished to speak with Aguilar’s mother, Mago. Aguilar refused. He thought Ozuna sounded “kind of drunk” and Aguilar’s mother was asleep. Approximately 15 minutes later, Aguilar again telephoned Mago’s home. When Aguilar answered the telephone, Ozuna said, “ ‘Let me talk to your mother, pendejo.’ ” Aguilar told Ozuna “never to call [his] house again” and that if he ever caught Ozuna, he would “kick [Ozuna’s] ass.” At 1:30 a.m., Ozuna called Mago’s house for the third time. This time Ozuna told Aguilar to come outside because he, Ozuna, “had something” for Aguilar. According to Aguilar, at no time during the telephone calls had Ozuna told Aguilar that he wished to drop off the children.
Aguilar admitted that he had suffered two convictions for unlawfully taking a vehicle and was on parole.
Aguilar testified that, in English, the word “pendejo” means “kind of like stupid.”
After hanging up the telephone, Aguilar went outside and walked out his front gate. There, Aguilar saw Ozuna standing behind his parked truck, aiming a rifle at Aguilar’s chest. The rifle was approximately three feet long and had a “banana clip.” Aguilar heard and saw Ozuna pull the trigger on the gun, but the gun did not fire. Aguilar ran toward Ozuna, who screamed and started to back up. When Aguilar reached Ozuna, Ozuna hit Aguilar in the side with the back of the gun. Aguilar lost his balance for a moment and, when he “gained control” again, saw that Ozuna was holding the rifle by the barrel and swinging the gun in Aguilar’s direction. Ozuna swung the gun and the handle hit Aguilar in the arm, then in the back of the head. Aguilar “hit the floor” and, for a moment, thought he had been shot. However, Aguilar quickly got up and saw Ozuna standing approximately three feet away attempting to cock the rifle, which was again aimed in Aguilar’s direction. Aguilar, who was bleeding profusely, ran inside the house and telephoned police. Ozuna got back into his truck and drove off.
Aguilar was transported to Martin Luther King hospital by ambulance. There, he received 17 staples in the back of his head. Since being hit on the head with the rifle, Aguilar has had difficulty hearing and his vision is “blurry sometimes.”
After the incident, Ozuna drove back to his mother’s home. There, Ozuna, his mother and his sister told Kimberly to tell her mother that Aguilar had hit Ozuna with a stick. Ozuna’s mother told Kimberly to tell her mother that Ozuna had not had a gun. All three, Ozuna, his mother and his sister, told Kimberly to lie.
2. Defense Evidence.
Los Angeles Police Officer Daniel Healy (Healy) and his partner responded to Aguilar’s 911 call. Aguilar told Healy that both he and Ozuna had been drinking that night, although Healy did not know if the two men had been drinking together. At some point Ozuna began to yell at Aguilar, then walked to his truck and produced a rifle. After Ozuna told Aguilar that he was “ ‘going to take care of business,’ ” Aguilar grabbed the barrel portion of the rifle, pushed it away and wrapped his arms around it so that Ozuna could not shoot him. Ozuna, however, pulled the rifle away from Aguilar and hit Aguilar in the back of the head with it. Aguilar did not tell Healy that Ozuna had actually attempted to pull the trigger on the gun.
3. Procedural history - sentencing.
At sentencing, the trial court found the following factors in aggravation: (1) the “crime involved the infliction of great bodily injury,” (2) Ozuna “used a weapon at the time of the offense,” and (3) Ozuna “illegally interfered with the judicial process by attempting to suborn perjury.” With regard to the factor involving perjury, the trial court commented, “Unfortunately, it was a situation where his own child was forced to take the stand.”
In mitigation, the trial court found Ozuna had “an insignificant record of prior criminal conduct.”
For Ozuna’s conviction of assault with a firearm in violation of section 245, subdivision (a)(2), the trial court imposed the upper term of four years in prison. In imposing the upper term, the court indicated it was relying on Ozuna’s “attempt to suborn perjury from a witness in this case.”
For Ozuna’s personal use of a firearm pursuant to section 12022.5, subdivision (a), the trial court imposed the high term of ten years in prison. In support of this sentence choice, the trial court indicated it was relying on the fact that Aguilar “suffered great bodily injury.” The trial court commented that Aguilar was “still suffering from the effects of the . . . incident . . . .”
With regard to the jury’s finding Ozuna inflicted great bodily injury within the meaning of section 12022.7, subdivision (a), the trial court indicated it would “impose [a three-year term] and strike it.” The court commented: “The court is using the fact of great bodily injury to impose the high base term. Under [section] 1170, [subdivision] (b) it would be inappropriate to impose a term for that, so the three years will be imposed and stricken.”
In total, the trial court sentenced Ozuna to 14 years in prison.
CONTENTIONS
Ozuna contends the trial court’s imposition of the upper term sentence for his conviction of assault with a firearm and imposition of the upper term enhancement for his personal use of a firearm during the offense violated the mandate of Cunningham v. California, supra, 549 U.S. ___ [127 S.Ct. 856] (Cunningham).
DISCUSSION
1. Ozuna did not forfeit his claim by failing to object to the imposition of the upper terms.
The People assert Ozuna forfeited any right to challenge the upper term sentence and enhancement because he failed to object to their imposition in the trial court. The contention is without merit.
In People v. Sandoval (2007) 41 Cal.4th 825, 837, fn. 4, citing People v. Welch (1993) 5 Cal.4th 228, 237-238, the court indicated an objection in the trial court is not required if the objection would have been futile. At the time Ozuna was sentenced, the California Supreme Court’s decision in People v. Black (2005) 35 Cal.4th 1238 (Black I) governed. In Black I, the court determined the judicial fact finding which occurred when a judge exercised its discretion to impose an upper term sentence did not implicate a defendant’s right to a jury trial. (Id. at p. 1254.) Since the trial court was bound by the Black I decision (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 456), trial counsel cannot be faulted for failing to have objected to the imposition of the upper terms on the ground the jury should have found the aggravating factors beyond a reasonable doubt. (People v. Sandoval, supra, 41 Cal.4th 825, 837, fn. 4.) Such an objection would have been futile.
2. The trial court properly imposed the upper term for Ozuna’s conviction of assault with a firearm.
Ozuna contends the trial court violated the mandate of Cunningham by imposing the upper term sentence for his conviction of assault with a firearm.
In Cunningham, the court, relying on its decisions in Apprendi v. New Jersey (2000) 530 U.S. 466 and Blakely v. Washington (2004) 542 U.S. 296, determined “the Federal Constitution’s jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant.” (Cunningham, supra, 127 S.Ct. at p. 860.) Further, “ ‘the relevant “statutory maximum,” ’ . . . ‘is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.’ ” (Ibid., original italics.)
In People v. Black (2007) 41 Cal.4th 799, 812 (Black II), the court determined that “as long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, [including Cunningham,] any additional factfinding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to a jury trial.” (Original italics.) Moreover, “[u]nder California’s determinate sentencing system, the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term.” (Id. at p. 813, citing People v. Osband (1996) 13 Cal.4th 622, 728.)
Here, in imposing the upper term for Ozuna’s conviction of assault with a firearm, the trial court relied on the fact Ozuna “attempt[ed] to suborn perjury from a witness in this case.” However, in imposing the upper term enhancement for Ozuna’s personal use of a firearm during the offense, the trial court relied on the fact that Aguilar “suffered great bodily injury,” a fact the jury found true beyond a reasonable doubt. The trial court’s reliance on the fact that Ozuna inflicted great bodily injury justified imposition of the upper term for Ozuna’s conviction of assault with a firearm. Moreover, any additional factfinding engaged in by the trial court did not violate Ozuna’s right to a jury trial. (Black II, supra, 41 Cal.4th at p. 812.) The Black II court explained:
“[U]nder the [determinate sentencing law] the presence of one aggravating circumstance renders it lawful for the trial court to impose an upper term sentence. [Citations.] The court’s factual findings regarding the existence of additional aggravating circumstances may increase the likelihood that it actually will impose the upper term sentence, but these findings do not themselves further raise the authorized sentence beyond the upper term. No matter how many additional . . . facts are found by the court, the upper term remains the maximum that may be imposed. Accordingly, judicial factfinding on those additional aggravating circumstances is not unconstitutional.” (Id. at p. 815.) The court continued, “Cunningham requires us to recognize that aggravating circumstances serve two analytically distinct functions in California’s current determinant sentencing scheme. One function is to raise the maximum permissible sentence from the middle term to the upper term. The other function is to serve as a consideration in the trial court’s exercise of its discretion in selecting the appropriate term from among those authorized for the defendant’s offense. Although the [determinate sentencing law] does not distinguish between these two functions, in light of Cunningham it is now clear that we must view the federal Constitution as treating them differently. Federal constitutional principles provide a criminal defendant the right to a jury trial and require the prosecution to prove its case beyond a reasonable doubt as to factual determinations (other than prior convictions) that serve the first function, but leave the trial court free to make factual determinations that serve the second function. It follows 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.” (Id. at pp. 815- 816, fn omitted.)
In the present case, the jury found beyond a reasonable doubt that Ozuna inflicted great bodily injury on Aguilar. Accordingly, “we conclude that [Ozuna’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 [assault with a firearm.] . . . [W]e conclude that the ‘statutory maximum’ sentence to which [Ozuna] was exposed by the jury’s verdict was the upper term, because at least one aggravating circumstance . . . was established by means that satisfy the requirements of the Sixth Amendment.” (Black II, supra, at p. 816, fn. omitted.)
3. The trial court properly imposed the upper term enhancement for Ozuna’s personal use of a firearm.
Ozuna contends the trial court violated the mandate of Cunningham when it imposed the upper term for his personal use of a firearm during the assault. The contention is without merit.
Ozuna’s sentence enhancement was imposed pursuant to section 1170.1, subdivision (d). That section provides in relevant part: “When the court imposes a prison sentence for a felony pursuant to Section 1170 . . ., the court shall also impose, in addition and consecutive to the offense of which the person has been convicted, the additional terms provided for any applicable enhancements. If an enhancement is punishable by one of three terms, [as is the section 12022.5 enhancement for a defendant’s personal use of a firearm,] 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.” (Italics added.) Accordingly, section 1170.1, subdivision (d) does not require the trial court to make findings of fact in support of its sentencing choice; the trial court must merely state its reasons for imposition of the upper or lower term.
Here, the trial court complied with the statutory requirement by stating its reason for imposing the upper term enhancement; Aguilar “suffered great bodily injury.”
However, even if we were to conclude that Cunningham applied to the imposition of the upper term enhancement, there was no error. The jury found true the allegation Ozuna inflicted great bodily injury on Aguilar during the assault. As explained above, the jury’s finding of this factor beyond a reasonable doubt “satisf[ied] Sixth Amendment requirements and render[ed] [Ozuna] eligible for the upper term. Therefore, he was not legally entitled to the middle term, and his Sixth Amendment right to a jury trial was not violated by imposition of the upper term [enhancement].” (Black II, supra, 41 Cal.4th at p. 820.)
DISPOSITION
The judgment is affirmed.
We concur: CROSKEY, Acting P. J., ALDRICH, J.