Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court, Charles L. Peven, Judge, Los Angeles County Super. Ct. No. PA041324
Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., and Bill Lockyer, Attorney Generals, Dane R. Gillette, and Robert R. Anderson, Chief Assistant Attorneys General, Pamela C. Hamanaka, Senior Assistant Attorney General, Margaret E. Maxwell and Susan S. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
PERLUSS, P. J.
Jason Adrian Perry appeals from the judgment entered after a jury convicted him of six offenses in connection with two attempted robberies of a fast-food restaurant in Northridge. Perry challenges several pretrial rulings, the sufficiency of the evidence to support two of his convictions, the trial court’s refusal to instruct the jury on principles of self-defense in relation to two of the counts for assault with a firearm and multiple aspects of his sentence. We reverse the judgment as to the sentences imposed on counts 2, 3 and 6 and remand for resentencing on those counts. We also direct the new abstract of judgment reflect the trial court’s oral pronouncement of sentence on counts 4 and 5. In all other respects, we affirm the judgment.
Our original opinion in this case was filed on October 11, 2005. On February 20, 2007 the United States Supreme Court, after granting Perry’s petition for writ of certiorari, vacated the judgment and remanded the matter to us for further consideration in light of Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856]. We requested and received supplemental briefing from the parties on the effect, if any, of Cunningham on Perry’s sentence. Except for our analysis of the constitutionality of imposition of the upper term on count 2 and consecutive terms on counts 1, 4 and 5 of Perry’s sentence (part 6 of the discussion section), the opinion we now file is substantially the same as our opinion of October 11, 2005.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Charges
Perry was charged with six counts arising from two separate incidents: (1) two counts of attempted second degree robbery (Pen. Code, §§ 211, 664) (counts 1 and 2); (2) three counts of assault with a firearm (§ 245, subd. (a)(2)) (counts 3, 4 and 6); and (3) one count of making a criminal threat (§ 422) (count 5). The information specially alleged a firearm enhancement under section 12022.53, subdivision (b), as to counts 1 and 2 and under section 12022.5, subdivision (a), as to counts 3, 4 and 6. The information also specially alleged a great-bodily-injury enhancement under section 12022.7, subdivision (a), as to counts 2, 3, 5 and 6.
Statutory references are to the Penal Code unless otherwise indicated.
2. Summary of the Evidence at Trial
a. Attempted robbery (count 1)
On the night of June 17, 2002 Pedro Gonzalez was a supervisor working at a fast-food restaurant in Northridge. He was standing at the front counter near the cash registers when a man, identified at trial as Perry, walked into the restaurant. After Gonzalez approached Perry to take his order, Perry lifted his shirt, showed Gonzalez the gun he had inside his waistband and directed Gonzalez to open the register. Gonzalez told Perry he needed to retrieve the keys. Nohemi Gutierrez, who also identified Perry at trial as the perpetrator, was working in the kitchen and saw the exchange at the counter between Gonzalez and Perry. Gonzalez walked to the restaurant’s office and called 911. While talking to the 911 operator, Gonzalez looked at Perry, who signaled to him to return to the front counter. Gonzalez turned around and continued his conversation with the 911 operator. When Gonzalez looked back a few seconds later, Perry was gone. Sergio Medrano, who had been working in the drive-through window, saw Perry leave the restaurant.
b. Attempted robbery (count 2); assault with a firearm (counts 3, 4 and 6); criminal threats (count 5)
On the night of June 19, 2002 Gonzalez, Gutierrez and Medrano were all working at the restaurant again, along with Ana Portillo and Maria Guadalupe Garcia. About 10:00 p.m. Garcia noticed a man, identified at trial as Perry, walk by the kitchen into the office, where Gonzalez was sitting. Perry partially closed the office door, pointed a gun at Gonzalez’s back and told him to open the safe. Gonzalez did so and, at Perry’s direction, placed money from the safe into Perry’s bag. After Portillo opened the office door, Perry pointed his gun at her and directed her into the office. Perry again closed the office door and asked Gonzalez for money in a separate container within the safe, which Gonzalez gave him. Thinking it was odd the office door was closed, Medrano listened from outside and heard an unfamiliar male voice. He then loudly told Garcia to call the police and held the office door closed from the outside.
Perry told Portillo to open the office door, which she could not do because Medrano was holding the door closed. Perry then pushed the office door open with both hands, causing Medrano to lose his hold on the door. Gonzalez shoved Perry and then grabbed his right hand. Perry pointed his gun at Gonzalez and said, “You are going to die.” Gonzalez replied, “We will see who will die first.” Perry hit Gonzalez in the head with the gun three to five times and then in the chest and shoulder four to six times. Gonzalez was bleeding.
As Perry then approached the office door, he pointed his gun at Medrano’s chest. Medrano grabbed the gun with both of his hands and pushed it away. A struggle over the gun ensued between Perry and Medrano. Eventually, Medrano slid the gun across the floor toward the ice machine. Gutierrez saw the gun and kicked it out of sight. Gonzalez grabbed Perry around the neck; and Medrano squeezed Perry’s testicles. Perry bit Gonzalez’s forearm and stepped on Medrano’s leg. Perry continued to fight with Gonzalez, while Medrano attempted to grab Perry’s feet. Perry kicked Medrano both at his knee and underneath his eye and later bit his finger. The struggle continued until ultimately Medrano and Gonzalez detained Perry by tying his feet with Gonzalez’s belt and held him until the police arrived at the restaurant. The police arrested Perry.
That night, Gonzalez was taken to a hospital and treated for his injuries, which included blows to the head, chest and shoulder, a bite on the arm and a cut on the head requiring 14 stitches. At the time of trial Gonzalez had a scar on his head and suffered from dizziness, headaches, periodic nosebleeds, problems with his neck and shoulder and difficulty writing for a long period of time. Medrano also received treatment at a hospital, suffering a bleeding and damaged fingernail, a cut underneath his left eye, damage to his eye and cuts on his chest and arm. At trial Medrano reported he still had trouble with his left eye when reading for more than 15 minutes and had pain in his left leg. Perry was treated for injuries at a hospital as well, appearing to be suffering from blunt force trauma in his abdomen, head and neck. He had lost blood and was vomiting blood.
Early the next morning, after being advised of his right to remain silent, to the presence of an attorney and, if indigent, to appointed counsel (Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694]), Perry told a police detective his friend had dropped him off at the restaurant about 10:00 p.m. the previous night and he had planned to rob the restaurant because it was located in a dark place. Perry explained to the detective his gun had been unloaded, which was determined to be true. Perry described his efforts to rob the restaurant and said he had struggled with two employees of the restaurant and had hit both of them with his gun. Perry maintained one of the employees had hit him with a mop three or four times in the upper body, causing him to fall to his knees and pass out. When he awoke, the two employees and a customer were beating him, which they did until the police arrived. Perry denied both that he had previously attempted to rob the restaurant, saying he had visited the restaurant before June 19, 2002 but only as a customer, and that he had told an employee that he was “going to die.”
3. The Jury’s Verdict and Sentencing
The jury found Perry guilty on counts 1 and 2 for attempted second degree robbery, counts 3, 4 and 6 for assault with a firearm and count 5 for criminal threats. The jury found true the special allegations regarding firearm use under section 12022.53, subdivision (b), with respect to counts 1 and 2 and under section 12022.5, subdivision (a), with respect to counts 3 and 6. The jury also found true the special allegation that Perry inflicted great bodily injury on the victim of counts 2, 3 and 5. The jury found not true the firearm-use enhancement under section 12022.5, subdivision (a), related to count 4.
Although a great-bodily-injury enhancement under section 12022.7, subdivision (a), was alleged in the information with respect to count 6, the jury was not directed by the verdict form to make a finding on such an allegation.
The trial court sentenced Perry to an aggregate state prison term of 22 years eight months: (1) the upper term of three years on count 2 for attempted second degree robbery, plus 10 years for the firearm enhancement under section 12022.53, subdivision (b), and three years for the great-bodily-injury enhancement under section 12022.7, subdivision (a); (2) a consecutive term of eight months (one-third the midterm of two years) on count 1 for attempted second degree robbery, plus three years four months (one-third the 10-year term) for the firearm enhancement under section 12022.53, subdivision (b); (3) a consecutive term of one year (one-third the midterm of three years) on count 4 for assault with a firearm; (4) a consecutive term of eight months (one-third the midterm of two years) on count 5 for making criminal threats; and (5) a consecutive term of one year (one-third the midterm of three years) on count 6 for assault with a firearm.
The court imposed but stayed pursuant to section 654 a consecutive term of one year (one-third the midterm of three years) on count 3 for assault with a firearm, plus one year four months (one-third the midterm of four years) for the firearm enhancement under section 12022.5, subdivision (a), and one year (one-third the midterm of three years) for the great-bodily-injury enhancement under section 12022.7, subdivision (a). The court also imposed but stayed pursuant to section 654 a term of one year (one-third the midterm of three years) for the great-bodily-injury enhancement related to count 5 and a term of one year four months (one-third the midterm of four years) for the firearm enhancement under section 12022.5, subdivision (a), related to count 6.
CONTENTIONS
Perry contends (1) he was improperly denied the right to counsel of his choice by the trial court’s refusal to permit him to substitute privately retained counsel for his appointed counsel prior to trial; (2) the trial court abused its discretion by denying his second motion under People v. Marsden (1970) 2 Cal.3d 118 (Marsden) and rejecting appointed counsel’s request to be relieved as his attorney; (3) a review of the in camera proceedings conducted on his motion for discovery under Evidence Code sections 1043 and 1045 and Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess) is necessary to determine whether the trial court abused its discretion by concluding none of the information presented was relevant to his case; (4) the evidence is insufficient to support his convictions for assault with a firearm on counts 4 and 6; (5) the trial court committed reversible error by declining to instruct the jury on principles of self-defense with respect to the assault-with-a-firearm offenses in counts 3 and 6; (6) imposition of an upper term on count 2 and consecutive sentences on counts 1, 4 and 5 violated his Sixth and Fourteenth Amendment right to a jury trial under Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham) and Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403] (Blakely); and (7)the trial court erred by failing to stay pursuant to section 654 his sentence on count 5 for criminal threats. We requested supplemental briefing on whether the sentence on count 6 for assault with a firearm was improper because, notwithstanding the mandatory language of section 12022.5, subdivision (d), the trial court imposed a consecutive term for the underlying offense but stayed pursuant to section 654 the firearm-use enhancement under section 12022.5, subdivision (a).
DISCUSSION
1. Perry Was Not Improperly Denied the Right to Counsel of His Choice
At a pretrial hearing on May 9, 2003 Perry, who was represented by appointed counsel, appeared with a retained attorney and asked leave to have the new attorney substituted in as his counsel. The court indicated the case was overdue for trial, having been continued numerous times during the preliminary hearing stage, and said the new attorney could substitute in only if he was ready to try the case without a further continuance. Indeed, the trial court at two prior pretrial hearings, one on February 11, 2003 and one on April 9, 2003, had indicated there would be no further continuances of trial. The private attorney represented he had two other cases that were set for trial the following week but thought he might be able to continue one of the matters. After a discussion among the trial court, the prosecutor and Perry’s appointed counsel regarding trial scheduling, the court determined trial would commence on May 19, 2003 and, if private counsel were able to reschedule his other matters to try the case on that date, it would allow the substitution.
On May 15, 2003 at another pretrial hearing the trial court observed Perry in his cell kneeling on the floor in a fetal-like position. Perry was not responding to commands; and the court deputy stated Perry could be brought into court only by force. On those grounds the trial court found a question as to Perry’s competency, suspended the trial proceedings and ordered an evaluation of Perry’s competency by two experts. At a subsequent hearing on July 9, 2003, based on the experts’ reports, the court found Perry “is a malingerer, and . . . is malingering this morning to attempt to delay the criminal proceedings against him. Mr. Perry, the court does find that you are malingering. The court does find that you are competent to stand trial.” The court made an additional competency finding at another hearing on July 15, 2003, stating, “The court has read and considered both of the [experts’] reports, and finds [Perry] to be competent to stand trial. The court finds beyond a reasonable doubt that [Perry] is malingering, and he is competent to stand trial.” After further pretrial hearings jury selection ultimately began on September 19, 2003.
A continuance in a criminal proceeding is to be granted only upon a showing of good cause. (§ 1050, subds. (b)-(e).) Although generally a defendant must be given a reasonable opportunity to employ and consult with counsel of his choice, the trial court has discretion whether to grant a continuance to allow a defendant to retain private counsel. (People v. Courts (1985) 37 Cal.3d 784, 790.) “The right of a defendant to appear and defend with counsel of his choice is not absolute.” (People v. Rhines (1982) 131 Cal.App.3d 498, 506; People v. Blake (1980) 105 Cal.App.3d 619, 624.) “A continuance may be denied if the accused is ‘unjustifiably dilatory’ in obtaining counsel, or ‘if he arbitrarily chooses to substitute counsel at the time of trial.’ [Citation.]” (Courts, at pp. 790-791.) In deciding whether the trial court’s denial of a continuance was so arbitrary as to deny due process, this court “looks to the circumstances of each case, ‘“particularly in the reasons presented to the trial judge at the time the request [was] denied.”’ [Citations.]” (Id. at p. 791.)
Perry contends the trial court’s refusal to continue the trial to allow his privately retained counsel to represent him amounted to a denial of his due process rights. The trial court, however, acted well within its discretion in finding no good cause to continue the trial in light of the fact Perry’s motion to substitute counsel was not made until the eve of trial, even though Perry had previously expressed dissatisfaction with his appointed counsel, the court had stated twice on the record no further continuances would be granted and the proceedings against Perry had already been delayed for a significant period of time, giving him ample opportunity to retain private counsel. Perry concedes granting the continuance at the time it was requested “would likely have inconvenienced some witnesses.” Indeed, the prosecutor stated on the record that a further continuance of trial would disrupt the case, which consisted primarily of civilian witnesses and included identification issues. (See People v. Ortiz (1990) 51 Cal.3d 975, 982 [“A criminal defendant’s right to decide how to defend himself should be respected unless it will result in ‘significant prejudice’ to the defendant or in a ‘disruption of the orderly processes of justice unreasonable under the circumstances of the particular case’”].)
Moreover, although the trial court did not continue the trial on May 9, 2003 to accommodate the schedule of Perry’s private attorney, it did state it would grant the substitution request if retained counsel appeared ready on the date set for trial. The trial date was subsequently suspended for a number of additional months because Perry refused to cooperate with the court and its personnel, requiring a competency evaluation (with the ultimate finding that Perry was malingering in order to delay the proceedings). Jury selection did not begin until September 19, 2003, months after Perry’s May 9, 2003 request to substitute new, retained counsel. Perry, therefore, actually obtained a four-month continuance of trial, yet private counsel never appeared again, nor did Perry make any further request for a substitution. No basis exists to reverse the judgment on the ground Perry was improperly denied the right to counsel of his choice.
2. The Trial Court Acted Within Its Discretion By Denying Perry’s Second Marsden Motion
At a pretrial hearing on April 9, 2003 Perry moved under Marsden, supra, 2 Cal.3d 118 to relieve his appointed counsel. In the absence of the prosecutor, Perry expressed his belief a conflict of interest had arisen between him and his appointed counsel, who had failed to move to dismiss the firearm-enhancement allegations under section 12022.53, subdivision (b), related to counts 1 and 2. In response, appointed counsel explained no basis existed to move to dismiss the firearm-enhancement allegations as Perry had been urging him to do and said, “I have done everything I could possibly do in this case. I’ve done everything he’s asked me to do in this case.” The trial court denied Perry’s motion.
After a suspension of the proceedings due to Perry’s malingering, trial eventually began on September 19, 2003. On the following court day, jury selection was completed; and the People presented their opening statement. The next day, just before opening statement on Perry’s behalf, defense counsel requested a hearing out of the presence of the prosecutor and represented to the court that, if he tried the case according to the strategy requested by Perry, a conflict of interest would exist between Perry and him. Defense counsel stated that, if Perry were to testify and did so as anticipated, then he would have a problem representing Perry. The trial court responded that, if counsel was referring to the possibility of perjured testimony by Perry, the court would deal with the matter in an appropriate manner at the time the testimony was presented. Counsel then asked to be relieved as Perry’s attorney, stating, “It’s a conflict with me personally and I would imagine it would be one with my office as far as our policies are concerned.” Perry agreed, explaining he had a problem with counsel’s prepared opening statement and his testimony would conflict with the opening statement. The trial court interpreted Perry’s statement as a Marsden motion and denied it as untimely because trial already had begun and the People had made their opening statement.
“‘“‘When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorney’s inadequate performance. [Citation.] A defendant is entitled to relief if the record clearly shows that the first appointed attorney is not providing adequate representation [citation] or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result [citations].’ [Citations.]”’” (People v. Barnett (1998) 17 Cal.4th 1044, 1085.) New counsel should not be appointed unless the defendant makes a proper showing that failure to replace the appointed attorney would substantially impair his right to assistance of counsel. (Ibid.) The determination whether the defendant has made a showing that entitles him to substitution of counsel lies in the exercise of the trial court’s discretion and will not be overturned on appeal absent a clear abuse of discretion. (Ibid.)
Perry contends the trial court abused its discretion by denying his second Marsden motion because an irreconcilable conflict existed between him and his appointed counsel that made effective representation impossible. As an initial matter, the trial court was well within its discretion to deny Perry’s second Marsden motion as untimely because it was made after a jury had been empanelled and the People had presented their opening statement. (See, e.g., People v. Williamson (1985) 172 Cal.App.3d 737, 745 [trial court had “abundant justification” for denying Marsden motion made on the third day of jury selection]; People v. Jackson (1981) 121 Cal.App.3d 862, 871-872 [no abuse of discretion in denying Marsden motion made on day of trial as untimely].) In addition to the fact the motion was made after trial had begun, it followed a prior Marsden motion that was, in appointed counsel’s words, “totally frivolous and baseless,” as well as a suspension of the trial date due to Perry’s malingering to delay the proceedings against him.
Moreover, the record does not reveal an irreconcilable conflict of interest likely to result in ineffective representation. As the trial court explained, defense counsel, not Perry, was to make tactical decisions regarding opening statement and strategy for the case. (People v. Welch (1999) 20 Cal.4th 701, 728-729 [counsel’s job to create defense strategy: “‘When a defendant chooses to be represented by professional counsel, that counsel is “captain of the ship” and can make all but a few fundamental decisions for the defendant.’ [Citation.]”].) Perry’s displeasure with the strategy employed by appointed counsel is simply insufficient to justify a change in attorneys. (People v. Berryman (1993) 6 Cal.4th 1048, 1070 [lack of trust in appointed counsel insufficient basis for court to relieve counsel], overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 822-823 & fn. 1; People v. Molina (1977) 74 Cal.App.3d 544, 549 [court has no duty to inquire into defendant’s reasons for dissatisfaction with counsel unless defendant shows or implies that counsel’s performance has been so inadequate that his constitutional right to effective assistance of counsel is jeopardized]; see also People v. Earp (1999) 20 Cal.4th 826, 876.) Indeed, Perry does not contend that his representation by appointed counsel during trial was constitutionally inadequate or ineffective.
Although at the Marsden hearing appointed counsel said he wished to be relieved as counsel, nothing he stated on the record reveals an irreconcilable conflict or a state of affairs likely to result in ineffective representation. To the extent the record of the Marsden hearing suggests the disagreement between Perry and his appointed counsel was based on counsel’s anticipation that Perry would testify and commit perjury, the trial court rightly described the manner in which defense counsel and the court could handle such testimony. (See People v. Johnson (1998) 62 Cal.App.4th 608, 628-629 [defendant who intends to testify and commit perjury may testify in form of a narrative].) Thus, no basis existed to relieve Perry’s appointed counsel as counsel of record.
3. The Trial Court Did Not Err By Determining Based on Its In Camera Review That Perry Was Not Entitled to Disclosure of the Pitchess Material
“For approximately a quarter-century our trial courts have entertained what have become known as Pitchess motions, screening law enforcement personnel files in camera for evidence that may be relevant to a criminal defendant’s defense.” (People v. Mooc (2001) 26 Cal.4th 1216, 1225 (Mooc) fn. omitted; see Pitchess, supra, 11 Cal.3d 531.) To balance the defendant’s right to discovery of records pertinent to his or her defense with the peace officer’s reasonable expectation that his or her personnel records will remain confidential, the Legislature has adopted a statutory scheme requiring a defendant to meet certain prerequisites before his or her request may be considered. (See §§ 832.5, 832.7, 832.8; Evid. Code, §§ 1043-1047 [statutory scheme governing Pitchess motions].) Specifically, a defendant seeking discovery of a peace officer’s confidential personnel record must file a written motion describing the type of records or information sought (Evid. Code, § 1043) and include with the motion an affidavit demonstrating “good cause” for the discovery and the materiality of such evidence relative to the defense. (Mooc, at p. 1226; see also Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1019 (Warrick).) The information must be requested with “sufficient specificity to preclude the possibility of a defendant’s simply casting about for any helpful information.” (Mooc, at p. 1226.)
Once the trial court concludes the defendant has satisfied these prerequisites and made a showing of good cause, the custodian of records is obligated to bring to court all documents “potentially relevant” to the defendant’s motion. (Mooc, supra, 26 Cal.4th at p. 1226.) The trial court must then examine the information in chambers, outside the presence of any person except the proper custodian “and such other persons the custodian of records is willing to have present.” (Evid. Code, §§ 915, subd. (b), 1045, subd. (b); see Warrick, supra, 35 Cal.4th at p. 1019.) Subject to certain statutory exceptions and limitations, the trial court must then disclose to the defendant “‘such information [that] is relevant to the subject matter involved in the pending litigation.’ [Citation.]” (Mooc, at p. 1226; Warrick, at p. 1019.) “A trial court’s ruling on a motion for access to law enforcement personnel records is subject to review for abuse of discretion. [Citation.]” (People v. Hughes (2002) 27 Cal.4th 287, 330.)
The trial court must exclude from discovery: “(1) Information consisting of complaints concerning conduct occurring more than five years before the event or transaction that is the subject of the litigation in aid of which discovery or disclosure is sought. [¶] (2) In any criminal proceeding the conclusions of any officer investigating a complaint filed pursuant to Section 832.5 of the Penal Code. [¶] (3) Facts sought to be disclosed that are so remote as to make disclosure of little or no practical benefit.” (Evid. Code, § 1045; see also Mooc, supra, 26 Cal.4th at pp. 1226-1227.)
Perry requests that we review the in camera proceedings on his Pitchess motion to determine whether the trial court properly ruled he was not entitled to disclosure of any material. At a pretrial hearing defense counsel represented Perry was requesting disclosure under Pitchess because “the officers used flagrantly coercive misconduct to obtain involuntary statements from [him].” Specifically, counsel stated that a Hispanic officer told Perry that, “if he didn’t cooperate and make statements, that there was a very good chance he was going to get life on the case.” The trial court found Perry had demonstrated good cause for it to conduct an in camera review of the personnel and administrative records of the Hispanic officers present at Perry’s interrogation.
Although Perry requested the trial court find good cause to review the personnel and administrative files of all officers present at his interrogation, he does not argue on appeal the court’s limitation of the review proceedings to the files of the Hispanic officers based on defense counsel’s representations at the hearing, or the means for determining which officers were Hispanic, was improper.
At the in camera hearing the trial court made the appropriate inquiries concerning whether the custodian had produced all potentially responsive documents and described thoroughly in the sealed transcript of the hearing the documents produced. (Mooc, supra, 26 Cal.4th at p. 1229.) We have reviewed the sealed record of the in camera proceedings and conclude the trial court appropriately exercised its discretion in finding none of the incidents reviewed was relevant to Perry’s case and, therefore, disclosure of material from the officers’ personnel files was not appropriate. (See ibid.)
4. Substantial Evidence Supports Perry’s Convictions for Assault with a Firearm on Counts 4 and 6
a. Standard of review
In reviewing a challenge to the sufficiency of the evidence, we “consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt. [Citations.]” (People v. Mincey (1992) 2 Cal.4th 408, 432; People v. Staten (2000) 24 Cal.4th 434, 460; People v. Hayes (1990) 52 Cal.3d 577, 631.) Our sole function is to determine if any rational trier of fact could have found the essential elements of the crime present beyond a reasonable doubt. (People v. Bolin (1998) 18 Cal.4th 297, 331; People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) The Supreme Court has held, “Reversal on this ground is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’” (Bolin, at p. 331, quoting People v. Redmond (1969) 71 Cal.2d 745, 755.)
“Substantial evidence” in this context means “evidence which is reasonable, credible, and of solid value -- such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578; accord, People v. Hill, supra, 17 Cal.4th at pp. 848-849 [“‘“When the sufficiency of the evidence is challenged on appeal, the court must review the whole record in the light most favorable to the judgment to determine whether it contains substantial evidence -- i.e., evidence that is credible and of solid value -- from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt.”’ [Citations.]”].) “Although the jury is required to acquit a criminal defendant if it finds the evidence susceptible of two reasonable interpretations, one of which favors guilt and the other innocence, it is the jury, not the appellate court, which must be convinced of his guilt beyond a reasonable doubt.” (People v. Millwee (1998) 18 Cal.4th 96, 132.)
b. Perry’s use of the unloaded gun constituted an assault with a firearm
Perry contends the evidence is insufficient to support the jury’s finding he assaulted Portillo with a firearm as charged in count 4 and assaulted Medrano with a firearm as charged in count 6 because his gun was unloaded and he did not strike either Portillo or Medrano with the gun. The evidence, viewed in the light most favorable to the judgment, reasonably justifies the jury’s verdict on both counts.
“Assault requires the willful commission of an act that by its nature will probably and directly result in injury to another (i.e., a battery), and with knowledge of the facts sufficient to establish that the act by its nature will probably and directly result in such injury.” (People v. Miceli (2002) 104 Cal.App.4th 256, 269, citing People v. Williams (2001) 26 Cal.4th 779, 782.) A “threat to shoot with an unloaded gun is not an assault, since the defendant lacks the present ability to commit violent injury. [Citations.]” (People v. Fain (1983) 34 Cal.3d 350, 357, fn. 6.) Nevertheless, a defendant who uses, or has the present ability to use, an unloaded gun as a club or bludgeon may be convicted of assault with a firearm. (Ibid.; see also Miceli, at p. 270 [“A person may commit an assault under [§ 245, subd. (b)] by using the gun as a club or bludgeon, regardless of whether he could also have fired it in a semiautomatic manner at that moment”].) In other words, nothing in the statute providing for an assault with a firearm requires that the firearm be loaded. (§ 245, subd. (a)(2).)
“An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” (§ 240.)
With respect to count 4, the evidence shows that, when Portillo opened the office door, Perry pointed his gun at her and directed her inside. After Gonzalez gave Perry additional money from the safe, Perry told Portillo to open the office door, which she could not do because of Medrano’s hold on the door from the outside. Perry then pushed the door open and, after struggling with Gonzalez and telling him he was “going to die,” hit Gonzalez in the head with his gun three to five times and then in the chest and shoulder four to six times. Based on this evidence, Perry had the present ability to use his gun as a club or bludgeon against Portillo. (People v. Fain, supra, 34 Cal.3d at p. 357, fn. 6 [sufficient evidence supported conviction for assault with a deadly weapon based on defendant’s present ability to use gun as a club or bludgeon when defendant pointed his gun at victim from distance of about five feet and struck two others with the gun, sufficiently near the victim to have the present ability to injure him in the same manner].) In other words, we cannot say that no rational trier of fact reasonably could have concluded from such evidence that Perry had the present ability to use his gun against Portillo as a club or bludgeon, as he in fact had used it against Gonzalez.
The jury’s seemingly inconsistent verdicts in convicting Perry of assault with a firearm on Portillo as charged in count 4 yet finding not true the firearm-use enhancement under section 12022.5, subdivision (a), related to that count do not require a different result. (People v. Williams (2001) 25 Cal.4th 441, 449 [“A jury in a criminal case may return inconsistent verdicts”]; People v. Lewis (2001) 25 Cal.4th 610, 656 [“It is well settled that, as a general rule, inherently inconsistent verdicts are allowed to stand. . . . An inconsistency may show no more than jury lenity, compromise, or mistake, none of which undermines the validity of a verdict”].)
With respect to count 6, Perry himself told the police detective that he had struggled with two male employees in the restaurant and had hit both with his gun, providing a description of the employees that plainly identified one of the employees as Gonzalez and one as Medrano. Although Medrano testified Perry did not strike him with the gun, Perry’s testimony alone that he had used his gun to hit Medrano is sufficient to support his conviction for assault with a firearm in count 6. (People v. Elwood (1988) 199 Cal.App.3d 1365, 1372 [testimony of even a single witness, unless physically impossible or inherently improbable, is sufficient to support the verdict]; see also People v. Cudjo (1993) 6 Cal.4th 585, 608; Evid. Code, § 411.) In any event, aside from Perry’s statements to the detective, the evidence shows that, after striking Gonzalez both in the head, chest and shoulder with his gun, Perry pointed his gun at Medrano and struggled with Medrano over the gun. Perry plainly had the present ability to use his gun as a club or bludgeon against Medrano, providing sufficient evidence to support his conviction for assault with a firearm in count 6. (People v. Fain, supra, 34 Cal.3d at p. 357, fn. 6; People v. Miceli, supra, 104 Cal.App.4th at p. 270.)
5. The Trial Court Properly Refused Self-defense Instructions
During trial defense counsel requested the trial court instruct the jury on principles of self-defense on the theory that Gonzalez and Medrano both testified that, during their struggles with Perry, Perry had tried to defend himself. The trial court declined to give the requested instructions, finding, “Basically it’s been tried to be portrayed [by the defense] up to now that basically that [Perry is] the victim in this case, and that, and that these people assaulted and beat him up and therefore everything he did he was entitled to do. I don’t see it. I don’t think you have the facts there to support that. And therefore [I’m] not going to instruct this jury as to any self-defense. And so that’s not going to go before the jury, so you are not to argue any issue of self-defense.” The court then stated, “You can quote the witness’s testimony, whatever you want to do. You want to put your spin on that, that’s fine. . . . Whatever the witnesses have said, you certainly can quote that and put a spin on it, if you want. But this is not a self-defense case.” On appeal Perry contends that, with respect to counts 3 and 6 for assault with a firearm, the trial court committed prejudicial error by refusing to instruct the jury on principles of self-defense, thereby violating his constitutional right to present a defense.
Defense counsel requested the trial court instruct the jury pursuant to CALJIC Nos. 5.30 (self-defense against assault), 5.31 (assault with fists -- when use of deadly weapon not justified), 5.40 (defense of property -- ejection of trespasser), 5.43 (force that may be used in defense of property), 5.50 (prior threats/assaults by victim), 5.51 (self-defense -- actual danger not necessary), 5.52 (self-defense -- when danger ceases), 5.53 (self-defense not an excuse after adversary disabled) and 5.54 (self-defense by an aggressor).
“A trial court has no duty to instruct the jury on a defense -- even at the defendant’s request -- unless the defense is supported by substantial evidence. [Citations.]” (People v. Curtis (1994) 30 Cal.App.4th 1337, 1355.) “‘The justification of self-defense requires a double showing: that defendant was actually in fear of his life or serious bodily injury and that the conduct of the other party was such as to produce that state of mind in a reasonable person.’” (People v. Watie (2002) 100 Cal.App.4th 866, 877; see also Curtis, at p. 1357 [“Traditional self-defense applies where the defendant believes he or she is facing an imminent and unlawful threat of death or great bodily injury, and believes the acts which cause the victim’s death are necessary to avert the threat, and these beliefs are objectively reasonable. [Citation.]”].) “It is well established that the ordinary self-defense doctrine -- applicable when a defendant reasonably believes that his safety is endangered -- may not be invoked by a defendant who, through his own wrongful conduct (e.g., the initiation of a physical assault or the commission of a felony), has created circumstances under which his adversary’s attack or pursuit is legally justified.” (In re Christian S. (1994) 7 Cal.4th 768, 773, fn. 1.)
With respect to count 6, the assault against Medrano, the timing of the events alone demonstrates a theory of self-defense was wholly unjustified. The evidence shows Perry pointed his gun at Medrano’s chest in his initial contact with Medrano upon exiting the office before Medrano touched him in any way.
Although the issue is a bit more complex as to the assault on Gonzalez in count 3, no substantial evidence supports Perry’s proposed theory of self-defense. According to the evidence, after Perry had obtained money from the safe and opened the office door, Gonzalez pushed Perry and grabbed his right hand. Perry then told Gonzalez, “You are going to die.” After Gonzalez lost his hold on Perry, Perry struck Gonzalez multiple times with his gun. Thus, when Perry repeatedly struck Gonzalez with his gun, Gonzalez had no hold on him whatsoever; and Perry plainly was not acting in self-defense. Moreover, there was absolutely no evidence that Perry “‘was actually in fear of his life or serious bodily injury and that the conduct of [Gonzalez] was such as to produce that state of mind in a reasonable person.’” (People v. Watie, supra, 100 Cal.App.4th at p. 877.) The testimony by Gonzalez and Medrano that Perry was trying to defend himself was in relation to their later struggles with Perry, which occurred well after Perry had hit Gonzalez with his gun -- indeed, when Perry no longer had the gun. In any event, by attempting to rob the restaurant with a gun, Perry created circumstances under which Gonzalez’s hold on Perry was legally justified, rendering Perry unable to invoke the doctrine of self-defense. (In re Christian S., supra, 7 Cal.4th at p. 773, fn. 1.)
6. Imposition of an Upper Term on Count 2, but not Imposition of Consecutive Terms on Counts 1, 4 and 5, Violated Perry’s Right to a Jury Trial
In his original briefing in this court, Perry, who was sentenced to an aggregate state prison term of 22 years eight months, argued his sentence violated his right to a jury trial under Blakely, supra, 542 U.S. 296 because the trial court imposed the upper term of three years for the attempted second degree robbery in count 2 and consecutive terms for the offenses in counts 1, 4 and 5 using aggravating factors that had not been found true by the jury beyond a reasonable doubt. We rejected that argument under the authority of People v. Black (2005) 35 Cal.4th 1238, 1244 (Black), in which the California Supreme Court held, notwithstanding Blakely, the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence or consecutive terms under California law does not implicate a defendant’s Sixth Amendment right to a jury trial. As directed by the United States Supreme Court, we reconsider our initial conclusion in light of its recent decision in Cunningham, supra, 549 U.S. ___ [127 S.Ct. 856]. (See fn. 1, above.)
Perry’s sentencing hearing was held on November 21, 2003. Blakely, supra, 542 U.S. 296, was decided June 24, 2004, while Perry’s case was on direct appeal to this court.
The crime of attempted second degree robbery is punishable by imprisonment in the state prison for one, two or three years. (§§ 213, subd. (a)(2), 664, subd. (a).) In selecting the upper term of three years for the attempted robbery in count 2, the trial court found “that there are no mitigating factors, that there are aggravating factors in that the crime involves great violence, great bodily harm, threat of great bodily harm. There was no great bodily harm, itself, but there was threat of great bodily harm. And other acts disclosing a degree of viciousness. . . . There appears to be a great deal of planning, sophistication, indicating premeditation; and so, therefore, I find that the aggravating factors outweigh the mitigating factors which are none.” The court then imposed consecutive sentences for the attempted robbery in count 1, the assault with a firearm in count 4 and the criminal threats offense in count 5 on the basis that “these crimes were independent of each other. They were separate acts of violence. There is a pattern of violent conduct indicating that the defendant is a serious danger to society.” (See § 669; Cal. Rules of Court, rule 4.425.)
In Cunningham, supra, 127 S.Ct. 856, the United States Supreme Court reaffirmed Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435] (Apprendi), Blakely, supra, 542 U.S. 296 and United States v. Booker (2005) 543 U.S. 220 [125 S.Ct. 738, 160 L.Ed.2d 621] (Booker), overruled Black, supra, 35 Cal.4th 1238, and held California’s determinate sentencing law (DSL) violates a defendant’s right to a jury trial guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution to the extent it authorizes the trial judge to find facts (other than a prior conviction) that expose a defendant to an upper term sentence by a preponderance of the evidence. “This Court has repeatedly held that, under the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence.” (Cunningham, supra, 127 S.Ct. at pp. 863-864.)
On February 20, 2007 the United States Supreme Court vacated the judgment in People v. Black, supra, 35 Cal.4th 1238, and remanded the case to the California Supreme Court for further consideration in light of Cunningham, supra, 549 U.S. ___ [127 S.Ct. 856].)
“Under California’s DSL, an upper term sentence may be imposed only when the trial judge finds an aggravating circumstance. . . . [A]ggravating circumstances depend on facts found discretely and solely by the judge. In accord with Blakely, therefore, the middle term prescribed in California’s statutes, not the upper term, is the relevant statutory maximum. [Blakely, supra,] 542 U.S., at 303 (‘[T]he “statutory maximum” for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.’ (emphasis in original)). Because circumstances in aggravation are found by the judge, not the jury, and need only be established by a preponderance of the evidence, not beyond a reasonable doubt [citation], the DSL violates Apprendi’s bright-line rule: Except for a prior conviction, ‘any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.’ [Citation.]” (Cunningham, supra, 127 S.Ct. at p. 868.)
The People urge Perry forfeited this argument by not objecting on constitutional grounds in the trial court to the imposition of the upper term and consecutive term sentences. Because Blakely had not yet been decided at the time Perry was sentenced, and thus an objection to the imposition of the upper term on count 2 on Apprendi grounds would have been futile, Perry may properly raise his constitutional claim of Cunningham-Blakely error on appeal notwithstanding the lack of objection in the trial court. (See People v. Vera (1997) 15 Cal.4th 269, 276-277 [constitutional claim, including denial of right to a jury trial, may be raised for the first time on appeal]; People v. Scott (1994) 9 Cal.4th 331, 353 [purpose of requiring defendant to object to sentencing choices at time sentence is imposed is to allow trial court to immediately address and remedy correctible errors].)
Under Cunningham, supra, 127 S.Ct. 856 the trial court’s imposition of the upper term of three years for the attempted second degree robbery in count 2, based on its own factual findings of aggravating circumstances in accordance with the DSL, none of which involved a prior conviction (see Cunningham, supra, 127 S.Ct. at p. 868; Almendarez-Torres v. United States (1998) 523 U.S. 224 [118 S.Ct. 1219, 140 L.Ed.2d 350]) or even more broadly the defendant’s recidivism (see People v. Thomas (2001) 91 Cal.App.4th 212, 221-222 [“courts have held that no jury trial right exists on matters involving the more broadly framed issue of ‘recidivism’”]; see also People v. McGee (2006) 38 Cal.4th 682, 706-707), violated Perry’s constitutional right to a jury trial.
The question whether there is a violation of the defendant’s rights under Cunningham if the defendant is eligible for the upper term based on a single aggravating factor established by means that satisfy the governing Sixth Amendment authorities even if the trial judge relies on other aggravating factors not established by such means in exercising his or her discretion to impose an upper term sentence is currently pending before the California Supreme Court. (E.g., People v. Towne, review granted July 14, 2004, S125677, supp. briefing ordered, Feb. 7, 2007.)
Whether the prior conviction exception of Almendarez-Torres v. United States, supra, 523 U.S. 224, as set forth in Cunningham, is properly interpreted to apply not only to the fact of a prior conviction but also to other issues relating to the defendant’s recidivism, including the defendant’s status as a probationer or parolee at the time the current offense was committed and the existence of “numerous” or increasingly serious prior convictions is also currently pending before the California Supreme Court. (People v. Towne, supra, S125677, supp. briefing ordered, Feb. 7, 2007 [parties to address the following issue, among others, “Do Cunningham v. California, supra, and Almendarez-Torres v. United States (1998) 523 U.S. 224, 239-247 [118 S.Ct. 1219, 140 L.Ed.2d 350], permit the trial judge to sentence defendant to the upper term based on any or all of the following aggravating factors, without submitting them to a jury: the defendant’s prior convictions as an adult are numerous and of increasing seriousness; the defendant has served a prior prison term; the defendant was on parole when the crime was committed; the defendant’s prior performance on probation or parole was unsatisfactory (California Rules of Court, Rule 4.421, subds. (b)(2) - (b)(5))?”]; People v. Hernandez, review granted Feb. 7, 2007, S148974; People v. Pardo, review granted Feb. 7, 2007, S148914.)
In their supplemental brief on remand from the United States Supreme Court, the People argue there was no Cunningham error because the jury necessarily found Perry’s crimes involved great bodily harm when it found true the great bodily injury enhancements as to counts 2, 3 and 5 and the trial court’s findings regarding aggravating circumstances reflected that jury finding. However, as discussed in the text, the court specifically disclaimed any reliance on a finding of great bodily harm in imposing the upper term on count 2: “There was no great bodily harm, itself, but there was threat of great bodily harm. And other acts disclosing a degree of viciousness or callousness. . . . There [also] appears to be a great deal of planning, sophistication, indicating premeditation.”
In contrast, the imposition of consecutive term sentences on counts 1, 2 and 5 did not violate Perry’s constitutional rights. First, even if Cunningham and Blakely were held to apply to California’s consecutive sentencing scheme, their requirement for jury findings has been satisfied in this case as to three of the four consecutive terms imposed by the trial court. The jury by its verdicts expressly found beyond a reasonable doubt that the two attempted robberies of Gonzalez charged in counts 1 and 2 were committed on separate occasions (June 17, 2002 and June 19, 2002) and the assault with a firearm charged in count 4 was committed against a different victim (Ana Portillo). Those jury findings support imposition of consecutive sentences because, as the trial court noted on the record, the crimes in counts 1, 2 and 4 necessarily were committed at different times and separate places and involved crimes of violence against separate victims. (See Cal. Rules of Court, rule 4.425(a)(2) & (a)(3) [criteria affecting the decision to impose consecutive sentences include that “[t]he crimes involved separate acts of violence or threats of violence” and “were committed at different times or separate places”]; see also People v. Calhoun (2007) 40 Cal.4th 398, 407 [imposition of upper term sentence based on defendant’s commission of crimes of violence against separate victims “does not implicate Cunningham because in convicting [defendant] of two counts of gross vehicular manslaughter, and two counts of reckless driving causing bodily injury, the jury necessarily found there were multiple victims”].)
The United States Supreme Court in Cunningham, supra,127 S.Ct. 856 did not address a trial court’s decision under section 669 to impose concurrent or consecutive sentences. In its order requesting supplemental briefing on remand from the United States Supreme Court in Black, supra, S126182, the California Supreme Court directed the parties to address whether “Cunningham affect[s] this court’s conclusion in [Black] that Blakely v. Washington (2004) 542 U.S. 296 does not apply to the imposition of consecutive sentences under Penal Code section 669.” (People v. Black, order on remand Feb. 21, 2007, S126182.)
More fundamentally, the principles articulated in Cunningham and Blakely, as well as in Apprendi,regarding a defendant’s constitutional right to a jury trial with respect to the existence of any facts (other than a prior conviction) that expose him or her to a potentially greater sentence for the crime charged do not apply to the trial court’s discretionary determination whether several sentences are to run concurrently or consecutively under section 669. Unlike the mandatory language of section 1170, subdivision (b), prior to its amendment as of March 30, 2007, which directed the trial court to impose the middle term whenever three possible terms were specified in the statute “unless there are circumstances in aggravation or mitigation of the crime” -- a provision central to the United States Supreme Court’s determination the middle term, not the upper term, is the relevant statutory maximum for purposes of Blakely (see Cunningham, supra, 127 S.Ct. at p. 868) -- there is no statutory presumption in favor of concurrent or consecutive sentencing under section 669. (See People v. Bradford (1976) 17 Cal.3d 8, 20 [“trial court has discretion to determine whether several sentences are to run concurrently or consecutively”].) The exercise of the trial court’s broad discretion within the range of punishment authorized by section 669 for multiple crimes is functionally identical to the discretion available to a federal judge in the post-Booker system in which the federal sentencing guidelines are merely advisory. (See Booker, supra, 543 U.S. at pp. 248-258.) Any judicial decisionmaking that occurs in the course of selecting a sentence within that legislatively authorized range does not infringe the defendant’s Sixth and Fourteenth Amendment right to a jury trial under Blakely and Cunningham. (See People v. Diaz (2007) 150 Cal.App.4th 254 [because fact finding required to impose consecutive terms under § 667.6, subd. (d), did not increase defendant’s statutory maximum sentence, no Blakely/Cunningham error in imposing of full consecutive sentences without submitting issue to jury].)
Section 669 provides in part, “When any person is convicted of two or more crimes, whether in the same proceeding or court or in different proceedings or courts, and whether by judgment rendered by the same judge or by different judges, the second or other subsequent judgment upon which sentence is ordered to be executed shall direct whether the terms of imprisonment or any of them to which he or she is sentenced shall run concurrently or consecutively. . . . .”
Senate Bill No. 40 (2007-2008 Reg. Sess.), signed into law by the Governor as an urgency measure on March 30, 2007, amended section 1170, subdivision (b), to provide, “When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court. . . . .”
To be sure, if the judge directs a determinate term is to run consecutively to another term, he or she must state on the record “the primary factor or factors that support the exercise of discretion.” (Cal. Rules of Court, rule 4.406(b)(5); see People v. Tran (1996) 47 Cal.App.4th 759, 774.) But the requirement that the decision to impose consecutive sentences be explained is quite different from a requirement that consecutive sentences cannot be imposed absent specific factual determinations. (People v. Hernandez, supra, 147 Cal.App.4th at p. 1271 [“the requirement that reasons for a sentence choice be stated does not create a presumption or entitlement to a particular result”]; see People v. Diaz, supra, 150 Cal.App.4th at p. 269 [although decision to impose fully consecutive sentences under § 667, subd. (c), generally requires statement of reasons, no factual findings are required; decision to impose consecutive terms is wholly discretionary].)
In addition, as the California Supreme Court previously explained in People v. Black, supra, 35 Cal.4th at pages 1262 to 1263 (which, although not binding in light of the United States Supreme Court’s order vacating the judgment, remains persuasive on points not addressed in Cunningham), the underlying rationale of Apprendi, Blakely and Cunningham is that the crime, together with either a related sentence enhancement or a factual prerequisite to eligibility for a greater punishment, must be considered as the functional equivalent of a single greater crime. (See People v. Sengpadychith (2001) 26 Cal.4th 316, 326.) Apprendi, Blakely and Cunningham protect the defendant’s constitutional right to a jury trial on all elements of the crime, whether expressly identified as such or labeled by a legislature as sentencing factors. That principle, however, is inapplicable to a trial court’s decision whether to require sentences on two or more offenses be served consecutively because the jury’s verdict authorizes the statutory maximum sentence for each offense for which the defendant has been convicted. When a judge considers the circumstances of those offenses and the defendant’s criminal history in determining whether the authorized sentences are to be served consecutively, he or she simply cannot be said to be making a finding that is the functional equivalent of the jury’s determination of the existence of an element of a crime.
Perry does not contend his consecutive sentence on count 6 violates Cunningham and Blakely, although the same argument would seem to apply to that offense. For the reasons discussed in the text of our opinion, no Blakely/Cunningham violation would occur should the trial court on remand choose to impose a consecutive term on count 6, which involved a separate assault with a firearm on Medrano, the third victim of the June 19, 2002 attempted robbery. (See part 8 of discussion section.)
The only remaining question is whether imposition of the upper term sentence on count 2 in this case is harmless error. (Washington v. Recuenco (2006) 548 U.S. __ [126 S.Ct. 2546, 165 L.Ed.2d 466] [Apprendi/Blakely error not “structural error” requiring automatic reversal]; see People v. Sengpadychith, supra, 26 Cal.4th at p. 327 [Apprendi error reviewable under the harmless error standard of Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705] (Chapman).) The People suggest any error is harmless because a jury convicting Perry of the January 19, 2002 attempted robbery of Gonzalez would have likewise found additional facts in aggravation warranting imposition of the upper term. Although we have little doubt a jury could reasonably find the manner in which Perry attempted to rob Gonzalez, particularly his repeated striking of Gonzalez’s head and body with his gun, involved great violence and a high degree of viciousness, the jury in this case was not asked to find, nor did it find, expressly or even impliedly, those facts.
In his reply brief Perry argued -- correctly -- that the trial court could not properly rely on the fact the attempted robbery of Gonzalez involved great bodily harm or the threat of great bodily harm as a circumstance in aggravation because it had imposed a great bodily injury enhancement on that count. (§ 1170, subd. (b) [“court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed”]; see Cal. Rules of Court, rule 4.420(c) [“fact charged and found as an enhancement may be used as a reason for imposing the upper term only if the court has discretion to strike the punishment for the enhancement and does so”].)
Applying Chapman’sheightened beyond-a-reasonable-doubt standard for assessing harmless error in cases involving violation of a defendant’s federal constitutional rights, from this record we simply cannot conclude the jury would have found, beyond a reasonable doubt, the existence of the aggravating factors identified by the trial court. Moreover, we cannot determine from this record whether the same sentence would have been imposed by the trial court if the jury had found some but not all of the aggravating circumstances relied on by the trial court in imposing the upper term on count two. (See People v. Navarro (2004) 124 Cal.App.4th 1175, 1182-1183 [Blakely requires that jury, not sentencing judge, determine underlying facts used to enhance sentence, but decision whether to use those facts to enhance sentence remains the court’s].) In sum, the sentencing error is not harmless under Chapman.
7. The Trial Court Was Not Required to Stay the Sentence on Count 5 Pursuant to Section 654
Section 654 prohibits punishment for two offenses arising from the same act or from a series of acts constituting an indivisible course of conduct. (People v. Latimer (1993) 5 Cal.4th 1203, 1216; People v. Harrison (1989) 48 Cal.3d 321, 335.) “Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.” (Neal v. State of California (1960) 55 Cal.2d 11, 19; Latimer,at p. 1208.) On the other hand, if the defendant entertained multiple criminal objectives that were independent and not incidental to each other, he or she “may be punished for each statutory violation committed in pursuit of each objective” even though the violations were otherwise part of an indivisible course of conduct. (Harrison, at p. 335.) “‘The principal inquiry in each case is whether the defendant’s criminal intent and objective were single or multiple.’ [Citation.] ‘A defendant’s criminal objective is “determined from all the circumstances . . . .”’” (In re Jose P. (2003) 106 Cal.App.4th 458, 469.)
Section 654, subdivision (a), provides: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other.”
Whether section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination. (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312; People v. Herrera (1999) 70 Cal.App.4th 1456, 1466.) Its findings will not be reversed on appeal if there is any substantial evidence to support them. (Hutchins, at p. 1312; Herrera, at p. 1466; People v. Nichols (1994) 29 Cal.App.4th 1651, 1657.) “We review the trial court’s determination in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence.” (People v. Jones (2002) 103 Cal.App.4th 1139, 1143; see People v. Cleveland (2001) 87 Cal.App.4th 263, 271 [trial court’s finding of “‘separate intents’” reviewed for sufficient evidence in light most favorable to the judgment].)
Because section 654 potentially reduces the defendant’s aggregate sentence when it applies and does not increase the statutory maximum term for each separate offense when it does not (see People v. Cleveland (2001) 87 Cal.App.4th 263, 270), neither Cunningham, supra, 549 U.S. ___ [127 S.Ct. 856], nor Blakely, supra, 542 U.S. 296, requires that this determination be made by the jury. Perry does not argue to the contrary in this appeal.
Perry contends the trial court erred by failing to stay pursuant to section 654 his sentence on count 5 for making criminal threats to Gonzalez under section 422 because his intent and objective in committing that offense were the same as his intent and objective in committing the attempted robbery of Gonzalez. Viewed in the light most favorable to the judgment, substantial evidence supports the imposition of an unstayed term on count 5.
Section 422 provides, “Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family’s safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison.” Section 211 provides, “Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.”
According to the evidence, Perry entered the restaurant’s office demanding money from the safe, while pointing his gun at Gonzalez. After Gonzalez gave Perry money, Portillo entered the office; Perry obtained additional money from a separate container within the safe; and the robbery quickly turned into a pitched battle between Perry and Gonzalez during which Perry again pointed his gun at Gonzalez and said, “You are going to die.” This course of events supports an inference that Perry’s initial intent was to rob the restaurant to obtain money, while his intent and objective in subsequently threatening Gonzalez was to intimidate him during their hand-to-hand confrontation. Indeed, Perry later overcame Gonzalez by using his gun to strike Gonzalez multiple times. The closeness in time of the events is immaterial: “‘It is defendant’s intent and objective, not the temporal proximity of his offenses, which determine whether a transaction is indivisible. [Citation.]’” (People v. Hicks (1993) 6 Cal.4th 784, 789; see People v. Douglas (1995) 39 Cal.App.4th 1385, 1393 [“multiple punishment . . . may be imposed where the defendant commits two crimes in pursuit of two independent, even if simultaneous, objectives”].) Thus, substantial evidence supports the trial court’s decision to impose an unstayed sentence on count 5.
Although the trial court did not stay the term imposed for making a criminal threat, it did stay pursuant to section 654 the term imposed on count 3 for assault with a firearm against Gonzalez, which occurred during the same confrontation. The decision to stay the term for assault but not the term for making a criminal threat is curious, but that does not undermine the conclusion that substantial evidence supports the finding that Perry’s intent and objective in committing the attempted robbery and in making criminal threats were distinct.
8. The Sentence Imposed on Count 6 Is Unauthorized Because the Trial Court Stayed Pursuant to Section 654 the Section 12022.5, Subdivision (a), Firearm Enhancement
In sentencing Perry for his conviction on count 6 for assault with a firearm against Medrano, the trial court imposed a consecutive term of one year (one-third the middle term of three years) for the underlying offense and imposed but stayed pursuant to section 654 a term of one year four months (one-third the midterm of four years) for the firearm enhancement under section 12022.5, subdivision (a), related to that count. Staying the firearm enhancement under section 12022.5, subdivision (a), is an unauthorized sentence.
Because this issue was not raised by either party, we requested supplemental briefing. An unauthorized sentence may be corrected at any time whether or not there was an objection in the trial court. (People v. Smith (2001) 24 Cal.4th 849, 854.) “[A] sentence generally is ‘unauthorized’ where it could not lawfully be imposed under any circumstances in the particular case.” (People v. Scott, supra, 9 Cal.4th at p. 354.) In such circumstances, “[a]ppellate courts are willing to intervene in the first instance because such error is ‘clear and correctable’ independent of any factual issues presented by the record of sentencing.” (Ibid.)
At the time of Perry’s offenses in 2002, section 12022.5, subdivision (a), provided, “[A]ny person who personally uses a firearm in the commission or attempted commission of a felony shall, upon conviction of that felony or attempted felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished by an additional term of imprisonment in the state prison for 3, 4, or 10 years, unless use of a firearm is an element of th[at] offense.” Section 12022.5, subdivision (d), provided, “The additional term provided by this section may be imposed in cases of assault with a firearm under paragraph (2) of subdivision (a) of Section 245 . . . .” The Supreme Court interpreted this statutory language to mean that, when a defendant is convicted of assault with a firearm and the trier of fact finds true a firearm-use allegation under section 12022.5, subdivision (a), imposition of the enhancement is mandatory. (People v. Ledesma (1997) 16 Cal.4th 90, 97 [§ 12022.5, “[s]ubdivision (d) creates an exception to the proviso in subdivision (a) and renders imposition of a use enhancement mandatory for the enumerated offenses[,]” which include assault with a firearm].)
Section 12022.5, subdivision (d), was amended in 2002 to declare existing law and to conform the language of the statute to the Supreme Court’s decision in People v. Ledesma, supra, 16 Cal.4th 90. It now provides, “Notwithstanding the limitation in subdivision (a) relating to being an element of the offense, the additional term provided by this section shall be imposed for any violation of Section 245 if a firearm is used . . . .” (Italics added; see Stats. 2002, ch. 126, § 3.) Section 12022.5, subdivision (c), now provides, “Notwithstanding Section 1385 or any other provisions of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section.”
The trial court did not follow this statutory language and instead stayed pursuant to section 654 the term for the firearm enhancement. Accordingly, the sentence on count 6 is unauthorized. (People v. Turner (1998) 67 Cal.App.4th 1258, 1269 [failure to impose mandatory enhancement results in an unauthorized sentence]; see § 12 [court has duty “to pass sentence, to determine and impose the punishment prescribed”].)
We remand for the trial court to resentence Perry on his conviction for assault with a firearm in count 6. (People v. Irvin (1991) 230 Cal.App.3d 180, 192-193 [“As a result of the trial court’s imposition of an unauthorized sentence, the appropriate course of action is to remand this case to the trial court” for court to exercise its discretion in resentencing].) In resentencing the trial court should determine whether to impose consecutive sentences for the underlying offense of assault with a firearm in count 6 and the firearm enhancement or to exercise its discretion to order concurrent terms for those sentences. (People v. Mustafaa (1994) 22 Cal.App.4th 1305, 1311 [underlying offense and enhancement must both run consecutively or concurrently to the other terms imposed]; see People v. Bradley (1998) 64 Cal.App.4th 386, 400-402 [remand for resentencing is appropriate when sentencing choice within trial court’s discretion].)
9. On Remand the Trial Court Must Resentence Perry on Count 3
The trial court stayed pursuant to section 654 Perry’s sentence on count 3 for assault with a firearm against Gonzalez and the related enhancements for firearm use under section 12022.5, subdivision (a), and great bodily injury under section 12022.7, subdivision (a). However, in applying section 654 the trial court improperly imposed and then stayed a sentence of one year for the underlying offense, plus one year four months for the firearm enhancement and one year for the great-bodily-injury enhancement, all terms calculated at one-third the midterm. “Prior to determining whether to impose either concurrent or consecutive sentences on all counts on which the defendant was convicted, the court shall determine whether the proscription in section 654 against multiple punishments for the same act or omission requires a stay of imposition of sentence on some of the counts.” (Cal. Rules of Court, rule. 4.424.) We, therefore, reverse the sentence imposed on count 3 and remand for the trial court to impose full terms, rather than terms calculated at one-third the midterm, prior to staying the sentence pursuant to section 654.
10. The New Abstract of Judgment Must Reflect the Trial Court’s Oral Pronouncement of Sentence on Counts 4 and 5
The trial court imposed a one-year term on count 4 for assault with a firearm and imposed but stayed pursuant to section 654 a one-year term for the great-bodily-injury enhancement under section 12022.7, subdivision (a), related to count 5. The current abstract of judgment incorrectly states that the one-year term on count 4 is stayed pursuant to section 654 and fails to reflect the stay pursuant to section 654 for the one-year term for the great-bodily-injury enhancement related to count 5. After resentencing, the new abstract of judgment shall delete the reference to a stay pursuant to section 654 for the one-year term on count 4 and indicate a stay pursuant to section 654 for the great-bodily-injury enhancement related to count 5.
DISPOSITION
The judgment with respect to the sentences imposed on counts 2, 3 and 6 is reversed, and the matter is remanded for resentencing on those counts. The new abstract of judgment prepared after resentencing shall reflect the trial court’s oral pronouncement of sentence on counts 4 and 5 by deleting the reference to a stay pursuant to section 654 for the one-year term imposed on count 4 for assault with a firearm and by indicating a stay pursuant to section 654 for the great-bodily-injury enhancement of one year under section 12022.7, subdivision (a), related to count 5 for criminal threats. In all other respects, the judgment is affirmed.
We concur: JOHNSON, J., WOODS, J.