Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Los Angeles County Super. Ct. No. NA058392, Richard Romero, Judge.
Donna L. Harris, 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, Paul M. Roadarmel, Jr., and Timothy M. Weiner, Deputy Attorneys General, for Plaintiff and Respondent.
FLIER, J.
Following a jury trial, appellant Sha’reef Sheard was convicted of attempted murder (count 1), assault with a firearm (count 2), and possession of a firearm by a felon (count 3) with enhancements for firearms discharge and personal infliction of great bodily injury. He was sentenced to over 34 years in prison. On appeal, he contends: (1) His Sixth Amendment rights were violated by imposition of the upper term on count 1 and consecutive sentences on counts 1 and 3. (2) The trial court should have stricken certain enhancements that it did not mention at the sentencing hearing. (3) The abstract of judgment and minute order of the sentencing hearing do not correctly reflect the actual sentence.
We reject the Sixth Amendment issue, order the staying or striking of the enhancements that were not mentioned at the sentencing hearing, and order the corrections to the sentencing minute order and abstract of judgment.
FACTS
On August 7, 2003, Willie Dee Davis (Davis) came outside of his apartment because his son Delon was fighting with appellant. The dispute arose from Delon’s romantic involvement with appellant’s sister. Davis and another of his sons separated the combatants. Davis went back into his apartment. He soon came outside again, holding a stick, because appellant was using a cast iron skillet to break the windows on Delon’s car. When Davis confronted appellant, appellant lifted up his shirt and displayed a handgun stuck in his waistband. Davis backed away with his palms out. As he turned around to open a gate, appellant shot him in the back, near the spine. The bullet exited through Davis’s abdomen. He required surgery and spent over two weeks in the hospital. Appellant later gave the gun to his cousin, who passed it on to the police.
DISCUSSION
1. The Sixth Amendment Issue
Appellant contends that imposition of the upper term on count 1 and a consecutive sentence on count 3 violated his Sixth Amendment right to trial by jury under Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856] (Cunningham).
A. Summary of Appellant’s Sentence
The total sentence was 34 years 8 months in prison.
On count 1, appellant was convicted of attempted murder (Pen. Code, §§ 664 & 187, subd. (a)), plus firearms enhancements under section 12022.53, subdivisions (b) through (d).
Subsequent statutory references are to the Penal Code.
On count 2, he was convicted of assault with a firearm (§ 245, subd. (a)(2)), plus personal infliction of great bodily injury (§ 12022.7, subd. (a)) and personal use of a firearm (§§ 667.5, subd. (c), 1192.7, subd. (c) & 12022.5).
On count 3, he was convicted of being a felon in possession of a firearm (§ 12021, subd. (a)(1)).
The information further alleged four prior prison convictions for the purpose of section 667.5, subdivision (b). The convictions included Health and Safety Code violations in 1996, 2000, and 2002, and a conviction in 1997 for being a felon in possession of a firearm. No finding was made on the prior convictions during the trial, but they are described in the probation report.
The trial court selected the upper term of nine years on count 1 based on appellant’s prior record. Its exact words were: “On count 1, which I select as the principal term, the defendant has prior convictions, more -- becoming more serious, has been to prison. In mitigation, the defendant has cared for family members, done his best to help raise the younger children, but the circumstances in aggravation outweigh those in mitigation. So the defendant is sent to state prison for nine years, the high term on count 1.”
The court then added to count 1 a consecutive term of 25 years to life for firearms discharge pursuant to section 12022.53, subdivision (d). It then imposed a consecutive eight-month sentence for count 3 as one-third of the midterm. Count 2 was stayed pursuant to section 654. It did not mention the remaining enhancements.
B. Analysis
We reject appellant’s attack on the upper term and consecutive sentence based on the interpretation of Blakely, supra, 542 U.S. 296 and Cunningham, supra, 549 U.S. __ [127 S.Ct. 856] that the California Supreme Court provided in People v. Black (2007) 41 Cal.4th 799 (Black II).
Under Black II, “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.” (Black II, supra, 41 Cal.4th at p. 816.)
Black II identified two aggravating circumstances, each of which was sufficient to support the upper term. One was the jury’s finding that the defendant used force, which was made in the context of a finding that the defendant was ineligible for probation due to the use of force. The other was the defendant’s criminal history.
Here, as in Black II, the lengthy criminal history shown in the appellant’s probation report justified imposition of the upper term.
Appellant argues, however, that the recidivism exception of Almendarez-Torres v. United States (1998) 523 U.S. 224, must be limited to the “fact” of a prior conviction. He maintains that the scope of the exception was exceeded here because the trial court relied on the facts that his convictions were of increasing seriousness, and he had been on parole. The California Supreme Court rejected that limitation of the recidivism exception in Black II, supra, 41 Cal.4th at pages 819-820, and we are required to follow that ruling here.
In the reply brief, appellant argues that Black II was wrongly decided. We do not address that argument, as we are required to follow the decisions of our Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
There also is no merit in appellant’s issue regarding the consecutive term on count 3. Under Black II, supra, 41 Cal.4th at pages 820-823, imposition of consecutive sentences does not implicate a defendant’s Sixth Amendment rights.
2. Failure To Strike the Enhancements That Were Not Imposed
On count 1 (attempted murder), the court imposed the firearms discharge enhancement of section 12022.53, subdivision (d), but did not mention that the jury made true findings for subdivisions (b) and (c) of section 12022.53. Similarly, the court stayed count 2 (assault with a firearm) pursuant to section 654, without mentioning that count 2 included findings of personal infliction of great bodily injury (§ 12022.7, subd. (a)) and personal use of a firearm (§ 12022.5).
Appellant maintains that the enhancements that were not mentioned must be stricken.
It was error not to mention the enhancements that the jury found true.
As to count 1, the issue arises because section 12022.53, subdivision (f) permits imposition of only one section 12022.53 enhancement, but section 12022.53, subdivision (h) prohibits the striking of any section 12022.53 enhancement. We recently resolved a similar issue in People v. Garcia (2007) 155 Cal.App.4th 929, by adopting the solution prescribed in People v. Bracamonte (2003) 106 Cal.App.4th 704, 713 (Bracamonte). The solution is to impose each section 12022.53 enhancement that was found true, but then stay all except the longest one. Utilizing that solution here, we remand with directions to impose the subdivision (d) enhancement on count 1, but stay the enhancements pursuant to subdivisions (b) and (c). (Bracamonte, at p. 714.)
Section 12022.53, subdivision (f) states: “Only one additional term of imprisonment under this section shall be imposed per person for each crime. If more than one enhancement per person is found true under this section, the court shall impose upon that person the enhancement that provides the longest term of imprisonment. An enhancement involving a firearm specified in Section . . . 12022.55 shall not be imposed on a person in addition to an enhancement imposed pursuant to this section. An enhancement for great bodily injury as defined in Section 12022.7 . . . shall not be imposed on a person in addition to an enhancement imposed pursuant to subdivision (d).”
Count 2 presents a different issue, as there are no section 12022.53 findings on that count. The problem is that the trial court stayed count 2 pursuant to section 654, but ignored the jury’s true findings for that count for section 12022.5, subdivision (a) (firearms use) and section 12022.7, subdivision (a) (great bodily injury).
The general rule is that “ ‘an enhancement must necessarily be stayed where the sentence on the count to which it is added is required to be stayed [under section 654].’ ” (Bracamonte, supra,106 Cal.App.4th at p. 711, quoting People v. Guilford (1984) 151 Cal.App.3d 406, 411.) However, subdivision (f) of section 12022.53 precludes imposition of a section 12022.5 or section 12022.7 enhancement “on a person,” if a section 12022.53, subdivision (d) enhancement has been imposed. (See fn. 2, ante & Bracamonte, at pp. 712-713.) The solution is that, on remand, the trial court must strike the section 12022.5 and section 12022.7 findings that it failed to mention on count 2. (Bracamonte, at p. 714.)
3. Correction of Clerical Error
The abstract of judgment and minute order of the sentencing hearing incorrectly state that the trial court imposed a consecutive sentence of 25 years to life on count 2. In fact, count 2 was stayed, pursuant to section 654, and the consecutive 25-year-to-life sentence was imposed as an enhancement on count 1 pursuant to section 12022.53, subdivision (d). The parties agree that those clerical errors must be corrected.
DISPOSITION
The matter is remanded with directions to (1) impose and stay the section 12022.53, subdivisions (b) and (c) findings on count 1; (2) strike the section 12022.5 and section 12022.7, subdivision (a) findings on count 2; and (3) correct the minute order of the sentencing hearing and the abstract of judgment to show that count 2 was stayed pursuant to section 654, and a consecutive sentence of 25 years to life was imposed on count 1 pursuant to section 12022.53, subdivision (d). In all other respects, the judgment is affirmed.
We concur: RUBIN, Acting P. J., EGERTON, J.
A judge of the Superior Court of Los Angeles County, appointed by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Section 12022.53, subdivision (h) states: “Notwithstanding Section 1385 or any other provision of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section.”