Opinion
NOT TO BE PUBLISHED
Super. Ct. No. MF029768A
SIMS, Acting P. J.An information accused defendant of assault with a firearm (Pen. Code, § 245, subd. (a)(2)) and murder (§ 187, subd. (a)) in which he personally used a firearm (§§ 12022.5, subd. (a), 12022.53, subds. (c)-(e)). A jury acquitted him of both charges and convicted him of the lesser included offense of voluntary manslaughter. (§ 192, subd. (a).) The jury found that defendant personally used a firearm in the commission of the offense. (§ 12022.5.) He was sentenced to state prison for 21 years, consisting of the upper term of 11 years (§ 193, subd. (a)) for the offense plus the aggravated term of 10 years (§ 12022.5, subd. (a)) for the firearm enhancement.
Undesignated statutory references are to the Penal Code.
On appeal, defendant contends (1) in selecting the upper term for the offense, the trial court violated the bar on dual use of facts and ignored factors in mitigation; and (2) in selecting the aggravated term for gun use, the trial court violated his jury trial right as enunciated in Blakely v. Washington (2004), 542 U.S. 296 [159 L.Ed.2d 403] (Blakely). We shall affirm the judgment.
FACTS
Prosecution Case-In-Chief
On June 16, 2006, Christina Coronado attended a birthday party in Lodi with her sister, Erica, and Erica’s boyfriend. Defendant, his brother Eddie Perez, and victim Javed Kahn were also at the party. Coronado and Kahn had been friends for about seven years.
At the birthday party, Kahn invited several people over to his house in Lathrop; the invitees included the Perez brothers and Coronado.
Shortly after midnight on June 17, 2006, Coronado left the birthday party and rode to Kahn’s house with the Perez brothers. En route, they stopped at several gas stations. At one station, Perez removed a handgun from under the car seat and showed it to defendant. Defendant told Perez that his “car was too hot and he couldn’t afford to get pulled over.”
Coronado, defendant and Perez arrived at Kahn’s residence about 2:00 a.m. Perez, who was drunk, said that he was going to get sick and vomit on Erica’s boyfriend. Kahn confronted Perez and told him to go outside if he was going to get sick. Perez was acting obnoxious; Kahn turned to defendant and told him that he “needed to tell his boy to calm down or leave.”
Kahn and Perez continued to argue and eventually wound up by the front of the house. Kahn challenged Perez to a fight using some boxing gloves that were in the garage. Kahn then grabbed Perez by the shirt and led him outside the house. Kahn and Perez were seen fighting in the middle of the street in front of the house.
While this confrontation was occurring, defendant was in the middle of the street waving a handgun in the air. He told Kahn, “‘Homie, I’m from Sacramento.’” Defendant then shot Kahn four times from a distance of about 12 feet. Erica went outside and saw Kahn lying on the sidewalk, bleeding. She also saw defendant’s car quickly drive away.
About 2:45 a.m. that morning, San Joaquin County Sheriff’s Deputy Steven McCulloch was advised to be on the lookout for a car occupied by two Hispanic males and matching the description of defendant’s car. McCulloch observed such a car traveling northbound on Highway 99. Defendant was the driver. The driver’s side rear window was shattered and glass from the window and a Corona beer bottle was inside the car. A loaded Taurus.380 semiautomatic handgun was in the car’s center console.
Kahn suffered four gunshot wounds and died from his wounds.
Defense
Defendant testified on his own behalf. He claimed he carried a handgun because of a prior incident in which three men had beaten and kidnapped him. He said that on June 16, 2006, he was at Kahn’s house with his brother, Perez, who was drunk and causing trouble. Defendant decided that he and Perez should leave. As they were leaving, a group of five or six men from the party followed them outside. Defendant claimed the group grew hostile and someone threw a beer bottle at him, missing him but breaking his car window. Defendant retrieved his handgun from his car and waved it in the air, telling the group, “‘Man, I’m from Sacramento. I don’t know you guys. Just let us go.’” Someone responded, “‘man, fuck you, we’re going to fuck up [sic],’” and the group approached him with Kahn in the lead. Defendant saw an item in Kahn’s hand and believed that Kahn would use it to hit or stab him. Defendant “just reacted and shot.”
DISCUSSION
I
Defendant contends the trial court abused its discretion when it selected the upper term of imprisonment for the manslaughter conviction. He claims the court (1) impermissibly used the fact of his gun use both to aggravate his sentence and to impose an enhancement, and (2) ignored factors in mitigation. We consider these points in turn.
Background
The trial court sentenced defendant for voluntary manslaughter as follows: “For a violation of... section 192(a), voluntary manslaughter, as found by the jury... the defendant is hereby sentenced to the upper term of 11 years in state prison. [¶] I am imposing the upper term for the following reasons. [¶] Mr. Perez, you performed an unnecessary act of great violence that caused the death of Javed Kahn. When I sat here and I listened to this trial, the whole thing was very difficult for the Court to understand. You had never met the victim before. You were an invited guest at his home. The victim was simply asking your brother, not you, to leave because your brother was intoxicated and belligerent. Everyone agreed upon that at trial, even yourself. [¶] You brought a gun into ultimately what was only a shoving match, and the shoving match wasn’t even between you and the victim, it was between your brother and the victim. [¶] The victim did not direct any acts of violence towards you whatsoever. Mr. Kahn just had the unfortunate circumstance of taking a step towards you when you decided to use the gun. [¶] The evidence was clear at trial and by your own admission that no one else at the party had a weapon. [¶] You have displayed such violent conduct that indicates a danger to society. That is why the Court is imposing the upper term.”
Analysis
At sentencing, defendant did not object that the trial court had violated the prohibition on dual use of facts or had ignored any applicable mitigating factors. Had he objected, the court could have responded appropriately. Thus, his claims of error are forfeited. (People v. Scott (1994), 9 Cal.4th 331, 349-350, 356.)
In any event, the trial court did not rely on defendant’s gun use both to aggravate his sentence and to impose an enhancement in violation of the prohibition on dual use of facts. (§ 1170, subd. (b); Cal. Rules of Court, rule 4.420(c).) The upper term was imposed not because defendant used a gun, but because the circumstances made his resort to any form of violence entirely unnecessary. The needless resort to violence demonstrated the high degree of viciousness or callousness contemplated by rule 4.421(a)(1). (Cf. People v. Harvey (1984), 163 Cal.App.3d 90, 117 [viciousness and callousness found where victim did not provoke the attack, had no opportunity to defend himself, and was shot without any explanation].)
Undesignated rule references are to the California Rules of Court.
Defendant disagrees, claiming the trial court “had to be cognizant of” the jury’s rejection of the murder charge in favor of the lesser included offense of voluntary manslaughter. However, the jury’s mere rejection of express malice (intent to kill) and implied malice (conscious disregard for life) does not imply a finding that defendant’s crime was neither vicious nor callous. (People v. Stone (2009), 46 Cal.4th 131, 139-140, citing People v. Bland (2002), 28 Cal.4th 313, 327-328.) Stated differently, the trial court could find that defendant’s crime was vicious or callous even though the jury did not find the mental states of intent to kill or conscious disregard for life.
Finally, defendant faults the trial court for ignoring several factors in mitigation. (Rule 4.423(a).) However, a single factor in aggravation is sufficient to support the upper term of imprisonment. (People v. Black (2007), 41 Cal.4th 799, 812 (Black II).)
In any event, the trial court could readily reject each claimed factor in mitigation. To begin with, it could find that Perez, not victim Kahn, was the provoker of the incident. (Rule 4.423(a)(2).)
The trial court could reject the notion that Perez’s obnoxious behavior and defendant’s misplaced loyalty to his brother were “unlikely to recur.” (Rule 4.423(a)(3).)
The trial court could also reject any suggestion that the crime was “partially excusable” because of the “threatening actions of the crowd.” (Rule 4.423(a)(4).) Those threats, such as they were, sent defendant to his car, not for ready transportation to safety but for a firearm, a choice that was wholly inexplicable.
Defendant claims his prior criminal record was “insignificant.” (Rule 4.423(b)(1).) But his prior offense, carrying a firearm on his person and in a vehicle, was very significant in that it landed him on probation at the time of the present crime. His probation evidently included a “firearm restriction” that precluded him from having a gun in his car, the very act that led to Kahn’s death.
Defendant claims his prior performance on probation was “satisfactory.” (Rule 4.423(b)(6).) But the probation officer reported that his “adjustment to probation has been poor,” in that “probation was revoked and a bench warrant issued for his failure to comply with the terms of his probation.”
It is not reasonably probable that the trial court would have found any of the foregoing mitigating factors to exist. Nor is it reasonably probable that the court would have found that any such mitigating factor or factors outweighed the factors in aggravation. Defense counsel’s failure to assert the mitigating factors in the trial court could not have been prejudicial. (E.g., People v. Avena (1996), 13 Cal.4th 394, 418.)
II
Defendant contends the trial court committed Blakely error when it imposed the aggravated term on the gun use enhancement. We are not persuaded.
Background
The trial court imposed the aggravated term on the gun use enhancement as follows: “For a violation of... section 12022.5, which is the personal use of a firearm, as found true by the jury..., the defendant is also sentenced to the upper term of 10 years in state prison, which will run consecutive to [the term for the manslaughter conviction]. [¶] I am imposing the upper term because at the time that you used this gun, you were on misdemeanor probation for [section] 12025(a)(3), for carrying a concealed firearm in your vehicle, which is exactly what you did in this case. [¶] One of the terms and conditions of your probation is that you do not possess, own, or carry any firearms. You violated that when you used a firearm on Javed Khan. [¶] In both Cunningham and Apprendi, the Court can use the prior conviction as a means to get to the upper term.”
Cunningham v. California (2007), 549 U.S. 270 [166 L.Ed.2d 856]; Apprendi v. New Jersey (2000), 530 U.S. 466 [147 L.Ed.2d 435].
Analysis
Although Black II did not consider whether the trial court was entitled to make findings that the defendant had received probation and that it was in effect at the time of the offense, the court in People v. Towne (2008), 44 Cal.4th 63 recently addressed this question, “in order to ensure consistency in the application of the Almendarez-Torres exception in the California appellate courts.” (Id. at p. 77; see Almendarez-Torres v. United States (1998), 523 U.S. 224 [140 L.Ed.2d 350].) The court “agree[d] with the majority of state and federal decisions holding that the federal constitutional right to a jury trial and proof beyond a reasonable doubt on aggravating circumstances does not extend to the circumstance that a defendant was on probation or parole at the time of the offense or has served a prior prison term.” (Towne, supra, at p. 79.) Thus, the trial court’s finding that defendant was on probation at the time of the offense in this case did not constitute Blakely error. (See Towne, supra, 44 Cal.4th at pp. 80-81.) No due process violation occurred.
DISPOSITION
The judgment is affirmed.
We concur: RAYE, J., CANTIL-SAKAUYE, J.