Summary
In People v. Velasquez (2007) 152 Cal.App.4th 1503, the court concluded that the upper term was justified where the probation officer's report was "considered" by the trial court at sentencing and that report indicated that there were two recidivist factors justifying imposition of the aggravated term, although the trial court did not articulate on the record its specific reasons for imposing the upper term.
Summary of this case from People v. NunezOpinion
No. B171476.
July 6, 2007. [CERTIFIED FOR PARTIAL PUBLICATION ]
Pursuant to California Rules of Court, rules 8.1100 and 8.1110, this opinion is certified for publication with the exception of parts 1, 2, 4, 5 and 6 of Discussion.
Appeal from the Superior Court of Los Angeles County, No. BA241537, George R. Gonzalez-Lomeli, Judge.
Alan Siraco, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Dane R. Gillette and Robert R. Anderson, Chief Assistant Attorneys General, Pamela C. Hamanaka, Assistant Attorney General, Marc E. Tuchin, Lawrence M. Daniels, David A. Wildman and Donald E. de Nicola, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Cesar Velasquez appeals from the judgment entered after a jury convicted him of 10 offenses ranging from petty theft to attempted murder that was willful, deliberate and premeditated. In our original nonpublished opinion, filed February 16, 2005, we affirmed Velasquez's convictions on all counts but reversed the sentence imposed on count 3 for assault with a firearm and the enhancement related to that count and remanded for resentencing consistent with our understanding of the constitutional requirements for trial by jury articulated in Blakely v. Washington (2004) 542 U.S. 296 [ 159 L.Ed.2d 403, 124 S.Ct. 2531] ( Blakely). We also directed the trial court on remand to strike the firearm enhancements under Penal Code section 12021.5, subdivision (a), imposed on counts 5, 10 and 12.
Statutory references are to the Penal Code unless otherwise indicated.
On June 8, 2005 the California Supreme Court granted the People's petition for review (S132402, petn. for review filed Mar. 21, 2005) and deferred further action in the matter pending consideration and disposition of a related issue in People v. Black (2005) 35 Cal.4th 1238 [ 29 Cal.Rptr.3d 740, 113 P.3d 534] ( Black) and People v. Towne, review granted July 14, 2004, S125677. On September 7, 2005 the Supreme Court transferred the matter to this court pursuant to California Rules of Court, former rule 29.3(d) (now rule 8.528(d)) with directions to vacate our prior decision and to reconsider the cause in light of Black. Accordingly, on October 18, 2005, we filed a new opinion in which we modified Velasquez's sentence by striking the firearm enhancements under section 12021.5, subdivision (a), imposed on counts 5, 10 and 12 and, as modified, affirmed the judgment.
On February 20, 2007 the United States Supreme Court, after granting Velasquez'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. 270 [ 166 L.Ed.2d 856, 127 S.Ct. 856] ( Cunningham). We requested and received supplemental briefing from the parties on the effect, if any, of Cunningham on Velasquez's sentence. Although for reasons somewhat different from those contained in our October 18, 2005 opinion, we again conclude that imposition of the upper term sentence on count 3 for assault with a firearm and the enhancement related to that count did not violate Velasquez's Sixth Amendment right to a jury trial. Accordingly, we modify Velasquez's sentence by striking the firearm enhancements under section 12021.5, subdivision (a), imposed on counts 5, 10 and 12 and, as modified, affirm the judgment.
Except for our discussion of the constitutionality of the trial court's imposition of the upper term sentence on count 3 and the related enhancement, the opinion we now file is substantially the same as our nonpublished opinion of October 18, 2005.
FACTUAL AND PROCEDURAL BACKGROUND
1. The ChargesVelasquez was charged with multiple crimes arising from his participation in four separate incidents: (1) two counts of attempted second degree robbery (§§ 211, 664) (counts 1 and 2); (2) two counts of assault with a firearm (§ 245, subd. (a)(2)) (counts 3 and 4); (3) two counts of possession of a short-barreled shotgun (§ 12020, subd. (a)) (counts 5 and 6); (4) three counts of possession of a firearm by a felon (§ 12021, subd. (a)(1)) (counts 7, 8 and 12); (5) attempted murder that was willful, deliberate and premeditated (§§ 187, subd. (a), 664, subd. (a)) (count 9); (6) second degree robbery (§ 211) (count 10); and (7) petty theft (§ 484, subd. (a)) (count 11). The information specially alleged firearm enhancements as to counts 1, 2, 3 and 9 and in addition a great-bodily-injury enhancement as to count 9. As to all counts except the petty theft charge in count 11, the information specially alleged the offenses were committed for the benefit of, at the direction of and in association with a criminal street gang (§ 186.22, subd. (b)(1)). As to counts 7, 8 and 12 the information specially alleged Velasquez carried a firearm on his person during the commission of a street gang crime (§ 12021.5, subd. (a)).
2. Summary of the Evidence at Trial
a. Petty theft (count 11)
On or about August 20, 2002 Velasquez, a member of the 18th Street gang, and some of his fellow gang members were at Thudo Billiards on West Sixth Street in Los Angeles, territory claimed by the 18th Street gang. Velasquez was caught on videotape taking something from the cash register drawer at the pool hall while the manager, Chuc Tran, was distracted by one of Velasquez's associates. Tran discovered between $60 and $70 missing from the drawer. Tran identified Velasquez from a photographic lineup as the person who had removed something from the register.
b. Robbery (count 10)
A few weeks later, on or about September 13, 2002, Velasquez was shooting pool at Thudo Billiards when Tran requested he come to the counter and pay for his table time. In response Velasquez grabbed Tran by the shirt and punched him in the face. Velasquez then took money from the cash register and asked Tran where he kept additional money. After Tran showed Velasquez that he hid money in a refrigerator in the back of the pool hall, Velasquez took that money as well. Velasquez took a total of approximately $200.
c. Attempted murder (count 9); firearm possession by a felon (count 12)
Concerned about these episodes, Tran hired Hazeem Ismail to work as a security guard. Velasquez approached Ismail on his second day of work, September 29, 2002, and asked if Ismail was a police officer. Ismail responded, "I am not a police officer. I am security for this area." Velasquez then said, "I am a gang member. Watch out." Later that evening Tran went to the table where Velasquez and his friends were shooting pool and asked them to pay for their beer and table time. Tran was ignored. Ismail then asked for payment, but Velasquez and his friends refused. Tran and Ismail then went to the table together to ask for payment. Velasquez told Tran to leave him alone and said he would pay later. Tran became angry, threw a pool cue and told Velasquez and his friends to either pay or leave.
Tran and Ismail then went back to the counter, and Ismail called his supervisor at the security company. One of Velasquez's friends asked Ismail if he was calling the police. Ismail responded, "Yes I am talking to my manager." Suddenly, Ismail saw Velasquez coming toward him and heard someone yell, "Shoot him. Shoot him." Velasquez shot Ismail several times from approximately nine feet away, wounding him in the stomach, thigh, arm and finger. The bullets lacerated Ismail's liver and a major vein in his intestine and shattered one of his kidneys. Ismail identified Velasquez in a photographic lineup as the person who had shot him.
d. Attempted second degree robbery (counts 1 and 2); assault with a firearm (counts 3 and 4); possession of a short-barreled shotgun (counts 5 and 6); firearm possession by a felon (counts 7 and 8)
Several months later, on or about January 3, 2003, Velasquez and two other men entered Read's Liquor on Alvarado Street in Los Angeles, also 18th Street gang territory. One of the men pointed a gun at Meeja Ahn, one of the store's owners. The man said, "Give me the money," and motioned toward the cash register with the gun. In the meantime Velasquez went behind the counter with a shotgun and pointed it at Yho Ahn, Meeja Ahn's husband and co-owner of the store. Yho Ahn grabbed his own gun from under the counter and shot Velasquez, wounding him in the head. Velasquez and the two other men fled on foot.
When police arrived at the scene, they followed a trail of blood beginning behind the counter of the liquor store that led them to Velasquez, who was sitting on the curb in front of his apartment building less than a block away. Velasquez had suffered a gunshot wound to his head. The police arrested Velasquez and transported him to a hospital. Velasquez told a detective he had just been injured in a driveby, gang-related shooting while standing in front of his apartment building. Velasquez, however, immediately changed his story, telling the detective he had gone to Read's Liquor to buy beer and had been mistakenly shot by the owner when two other men wearing masks tried to rob the store. A shotgun was found in Velasquez's apartment.
The parties stipulated Velasquez had previously been convicted of a felony.
e. Expert testimony on gang activity
In addition to evidence of the substantive offenses, Los Angeles Police Department Officer Jonathan Pultz testified as an expert on the 18th Street gang. According to Officer Pultz, the primary activities of the 18th Street gang, one of the largest in the nation with more than 30,000 members, are robbery, murder, carjacking, burglary, extortion and narcotics sales. Gang members are identifiable by hand signs, symbols and tattoos. Within two years prior to the crimes charged against Velasquez, 18th Street gang members had been convicted of attempted robbery and assault with a deadly weapon. Velasquez had 18th Street gang paraphernalia in his apartment when he was arrested and 18th Street gang tattoos on his body.
Officer Pultz opined the offenses at Thudo Billiards on September 13, 2002 and September 29, 2002 and the crimes at Read's Liquor on January 3, 2003 were committed for the benefit of the 18th Street gang. The robbery of Tran on September 13, 2002 at the pool hall enhanced the reputation of the gang by sending a message that one should not "mess with" its members. The shooting of Ismail on September 29, 2002 demonstrated the gang, not law enforcement, was in control of its turf. The ruthless and violent manner in which the shooting occurred helped the gang rule its turf by intimidating people in the community who might try to turn to law enforcement for protection against the gang. Regarding the January 3, 2003 robbery at Read's Liquor, Pultz testified that robbery benefits the gang because the money obtained is frequently used to bail gang members out of jail or otherwise help them and that the display of the shotgun enhanced the gang's reputation for dangerousness and promoted its ability to intimidate. Moreover, having three gang members undertake the robbery benefited the gang by showing other members the importance of teamwork.
f. Defense theory
Velasquez did not present any evidence in his defense but argued the People had not proved the intent-to-kill element for the attempted murder of Ismail in count 9 and reasonable doubt existed as to whether it was indeed Velasquez who had committed the charged offenses.
3. The Jury's Verdict and Sentencing
The jury found Velasquez guilty on counts 1 and 2 for attempted second degree robbery, counts 3 and 4 for assault with a firearm, count 5 for possession of a short-barreled shotgun, counts 7 and 12 for possession of a firearm by a felon, count 9 for attempted murder that was willful, deliberate and premeditated, count 10 for second degree robbery and count 11 for petty theft. The jury found Velasquez not guilty on count 6 for possession of a short-barreled shotgun and on count 8 for possession of a firearm by a felon. The jury found true the special allegations regarding firearm use with respect to counts 1, 2, 3 and 9 and the special allegation that Velasquez had inflicted great bodily injury on the victim in committing the attempted murder in count 9. The jury also found true the special allegation that Velasquez had committed all offenses (except the petty theft charge in count 11) for the benefit of, at the direction of or in association with a criminal street gang. The jury did not make findings on the firearm enhancement under section 12021.5, subdivision (a), alleged with respect to counts 7 and 12.
The trial court sentenced Velasquez to a principal term of 24 years on count 3 for assault with a firearm (the upper term of four years, plus the upper term of 10 years for the firearm enhancement under section 12022.5, subdivision (a), and 10 years for the criminal street gang enhancement under section 186.22, subdivision (b)(1)), plus a consecutive life term on count 9 for attempted murder, with a minimum parole eligibility date of 15 years under section 186.22, subdivision (b)(5), plus 25 years to life for the firearm enhancement under section 12022.53, subdivision (d). The court imposed concurrent terms on all other counts; and the sentences on counts 1, 4 and 7 were stayed pursuant to section 654. The court struck all remaining special allegations pursuant to section 1385.
CONTENTIONS
Velasquez contends the trial court erred by denying his motion to bifurcate the trial of the substantive offenses from the trial of the criminal street gang enhancement because the introduction of evidence on the 18th Street gang prejudiced his case. He also contends the evidence is insufficient to support the jury's finding that the crimes for which he was convicted (except the petty theft offense) were committed for the benefit of, at the direction of or in association with a criminal street gang. With respect to sentencing, Velasquez asserts: (1) the imposition of upper terms on his sentence on count 3 for assault with a firearm and on the related firearm enhancement is improper because the trial court failed to state on the record its reasons for imposing upper terms and, additionally, violated his right to a jury trial under Blakely and Cunningham; (2) his sentences on counts 5 and 12 should have been stayed under section 654; and (3) firearm enhancements under section 12021.5, subdivision (a), should not have been imposed on counts 5, 10 and 12.
DISCUSSION
1., 2. 1. The Trial Court Did Not Err By Declining to Bifurcate the Trial of the Offenses from the Trial of the Criminal Street Gang Enhancement Prior to trial Velasquez moved to bifurcate the guilt phase of the trial from the trial on the criminal street gang enhancement under section 186.22, subdivision (b)(1), which the People had specially alleged as to all counts except the petty theft offense in count 11. The trial court denied Velasquez's motion, finding evidence of gang affiliation and activity was admissible on the substantive offenses, as well as necessary to prove the street gang enhancement, and could be used to establish a motive for the attempted murder charged in count 9. The trial court's ruling is consistent with the Supreme Court's decision in People v. Hernandez (2004) 33 Cal.4th 1040 ( Hernandez). In Hernandez the Court recognized the authority of the trial court to bifurcate trial of a gang enhancement from trial of guilt in a case in which the evidence necessary to establish the requirements of section 186.22, subdivision (b), may be unduly prejudicial. The Court, however, held that "evidence of gang membership is often relevant to, and admissible regarding, the charged offense. Evidence of the defendant's gang affiliation — including evidence of the gang's territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like — can help prove identity, motive, modus operandi, specific intent, means of applying force or fear or other issues pertinent to the guilt of the charged crime. [Citations.] To the extent the evidence supporting the gang enhancement would be admissible at a trial of guilt, any inference of prejudice would be dispelled, and bifurcation would not be necessary. [Citation.]" ( Id. at pp. 1049-1050.) In this case, as in Hernandez, "[m]uch of the gang evidence . . . was relevant to the charged offense[s]." ( Hernandez, supra, 33 Cal.4th at p. 1050.) Indeed, with respect to the attempted murder charged in count 9, Velasquez injected his gang status into the crime by identifying himself as a gang member to Ismail, the victim of the attempted murder charge, on the same day as the shooting. More generally, Velasquez's gang-related tattoos were visible both to his victims and those witnessing his crimes. Velasquez's gang affiliation, including his gang's territory, was highly relevant to prove the intent behind and motive for the crimes to intimidate non-gang members in gang territory, establish the gang's dominance on its turf and demonstrate the degree of violence to which the gang would resort to achieve those objectives. In addition, the prior crimes of attempted robbery and assault with a deadly weapon committed by members of Velasquez's gang, used to establish a "pattern of gang activity" as required by section 186.22, subdivision (e), were not particularly inflammatory. ( Hernandez, at p. 1051 [evidence admitted solely to prove gang enhancement does not require bifurcation unless it is "so minimally probative on the charged offense, and so inflammatory in comparison, that it threatened to sway the jury to convict regardless of the defendants' actual guilt"].) In any event, considering the overwhelming evidence of Velasquez's guilt, the denial of Velasquez's motion to bifurcate trial of the gang enhancement from trial of guilt was not prejudicial under any harmless error standard of review. (See Chapman v. California (1967) 386 U.S. 18, 24 [ 87 S.Ct. 824, 17 L.Ed.2d 705]; People v. Watson (1956) 46 Cal.2d 818, 836.) Tran and Ismail positively identified Velasquez as the person who committed the crimes at the pool hall. Tran knew Velasquez because he frequented the pool hall two or three times a week, had identified Velasquez as the person shown on the surveillance tape taking something from the cash register and was necessarily within inches of Velasquez when Velasquez grabbed his shirt, struck him and demanded money. Ismail had met Velasquez prior to the shooting that led to the attempted murder charge; and Velasquez was only nine feet from Ismail when he fired shots. As to the attempted robbery and other offenses at the liquor store, the undisputed evidence showed Yho Ahn shot one of the robbers and a trail of blood led directly from the store to Velasquez, who was found less than a block away bleeding from the head. Velasquez, moreover, admitted his presence in the liquor store at the time of the attempted robbery after first giving a false explanation that he had been the victim of a drive-by shooting. Based on this significant amount of largely undisputed evidence, the joint trial of the charged offenses and the criminal street gang enhancement did not prejudice Velasquez in the jury's verdicts of guilt. 2. Substantial Evidence Supports the Jury's True Finding on the Criminal Street Gang Enhancement As discussed, to obtain a true finding on an allegation of a criminal street gang enhancement, the People must prove the crimes at issue were "committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members. . ." (§ 186.22, subd. (b)(1).) Velasquez contends the evidence is insufficient to satisfy that standard and, therefore, the punishment imposed under the criminal street gang enhancement on each of his convictions (except count 11 for petty theft) must be reversed. In reviewing a claim of insufficient evidence in a criminal case, we determine whether, on the entire record viewed in the light most favorable to the People, any rational trier of fact could find the defendant guilty beyond a reasonable doubt. ( People v. Ochoa (1993) 6 Cal.4th 1199, 1206; see also People v. Holt (1997) 15 Cal.4th 619, 667.) "In making this assessment the court looks to the whole record, not just the evidence favorable to the [defendant] to determine if the evidence supporting the verdict is substantial in light of other facts. [Citations.]" ( Holt, at p. 667.) "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 (1998) 17 Cal.4th 800, 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.) The evidence here was sufficient to support the jury's findings on the criminal street gang enhancement. Officer Pultz, testifying as an expert, opined that the robbery on September 13, 2002 and the attempted murder and possession of a firearm by a felon on September 29, 2002, which all occurred at Thudo Billiards, were committed for the benefit of the 18th Street gang. Officer Pultz explained the pool hall was notorious for the housing, meeting and loitering of 18th Street gang members, particularly the clique of the gang to which Velasquez belonged. Velasquez's actions in response to requests for payment by the pool hall manager and security guard sent a message that he and his associates could not be told what to do on their own turf and that they would retaliate against community members who confronted them. The attempted murder, committed with a firearm, also furthered the reputation of the gang as violent and ruthless and allowed the gang to "thrive on intimidation." With respect to the offenses at the liquor store on January 3, 2003, Officer Pultz also opined they benefited Velasquez's gang. The attempt to rob the store by Velasquez with two other individuals showed teamwork among the gang members and also promoted name recognition for the gang. Moreover, the use of a short-barreled shotgun during the commission of the crimes at the liquor store demonstrated intimidation; and the dangerousness of that particular firearm made the gang a greater threat. Contrary to Velasquez's contention, his failure to shout the name of his gang or flash the gang's sign just before committing any of the crimes does not negate the jury's findings that the crimes he committed were for the benefit of his gang. The pool hall was a well-known hangout for 18th Street gang members; and the liquor store also was in 18th Street gang territory. Moreover, Velasquez "announced" his status as an 18th Street gang member by wearing gang tattoos on his arm, chest, ear, wrist and on the back of his head, which were visible to his victims and witnesses of his crimes. With respect to the attempted murder, Velasquez had previously told Ismail on the day of the shooting, "`I am a gang member. Watch out.'" And his confederate at the pool hall yelled to Velasquez just before the shooting of Ismail, "Shoot him. Shoot him.'" Thus, the location and circumstances of the crimes, indeed Velasquez's own actions, constitute sufficient statements that the crimes were committed "to put local residents on notice of the gang's control of the neighborhood." ( People v. Castenada (2000) 23 Cal.4th 743, 753.) Velasquez also argues substantial evidence is lacking because Officer Pultz's opinions were based on assumptions that other gang members were present during the commission of his crimes. With respect to the attempted murder and related gun-carrying offense, Officer Pultz had in fact witnessed Velasquez and other gang members at the pool hall on the videotape of the pool hall shooting; and one of Velasquez's associates had encouraged him to shoot Ismail. As to the other crimes, given that each had occurred in known 18th Street gang territory while Velasquez was either playing pool with friends or acting with associates, Officer Pultz's inferences were not unreasonable. Moreover, any assumption made by Officer Pultz regarding the presence of other gang members at the scene of Velasquez's crimes was not the only basis for his opinion that the crimes benefited the 18th Street gang. Indeed, more central to Officer's Pultz's opinion was the ruthlessness and violent nature of the attacks, which served to intimidate the community. The gang expert's opinion is thus directly in accord with the legislative finding accompanying the enactment of section 186.22 "that the State of California is in a state of crisis which has been caused by violent street gangs whose members threaten, terrorize, and commit a multitude of crimes against the peaceful citizens of their neighborhoods." (§ 186.21.) Velasquez's final contention the People failed to offer any evidence on section 186.22's separate requirement that the perpetrator specifically intended to promote, further or assist in the gang's criminal conduct lacks merit. In People v. Gardeley (1996) 14 Cal.4th 605 the Supreme Court held that, based on an expert's testimony that the details of an assault conveyed a "`classic' example of gang-related activity" to frighten residents of an area where the gang members sell drugs, a jury "could reasonably conclude that the attack on [the victim] by [gang members] was committed `for the benefit of, at the direction of, or in association with' that gang, and with the specific intent to promote, further, or assist in . . . criminal conduct by gang members' as specified in the STEP Act." ( Id. at p. 619, italics added.) Similarly, in this case Officer Pultz testified the crimes at issue were consistent with the gang's desire to demand respect on its turf and to intimidate community members. Based on that testimony, the jury reasonably could have concluded Velasquez committed the crimes with the specific intent "to promote, further, or assist in . . . criminal conduct by gang members." (§ 186.22, subd. (b)(1).)
See footnote, ante, page 1503.
Section 186.22, subdivision (b)(1), provides for an additional sentence to "any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members." A "criminal street gang" is one whose members "engage in or have engaged in a pattern of criminal street gang activity." (§ 186.22, subd. (f).) A "`pattern of criminal street gang activity'" is "the commission of [listed offenses] provided at least one of these offenses occurred after the effective date of this chapter and the last of those offenses occurred within three years after a prior offense, and the offenses were committed on separate occasions, or by two or more persons." (§ 186.22, subd. (e).)
3. No Reversible Sentencing Error Occurred in Imposing Upper Terms on the Conviction for Assault with a Firearm and the Related Firearm Enhancement
a. Velasquez forfeited his claim the upper terms are improper because the trial court failed to state on the record its reasons for imposing those terms
Velasquez contends the imposition of upper terms on count 3 for assault with a firearm and the firearm enhancement related to that count is improper because the trial court failed to state on the record its reasons for imposing the upper terms. (See former § 1170, subd. (b); Stats. 2004, ch. 747, § 1 ["court shall set forth on the record the facts and reasons for imposing the upper or lower term"].) He, however, made no objection when the trial court failed to state reasons for imposing the upper terms. The record is clear that Velasquez's counsel was well aware of the court's sentencing choices and had a meaningful opportunity to object. Indeed, counsel did object to the court's use of an aggravating factor in ordering the sentence on count 3 to run consecutively with the sentence for attempted murder on count 9. Thus, by failing to object, Velasquez has forfeited his claim the upper terms are improper because the trial court did not state its reasons for selecting those terms. ( People v. Scott (1994) 9 Cal.4th 331, 353 [ 36 Cal.Rptr.2d 627, 885 P.2d 1040] ["waiver doctrine should apply to claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices"]; People v. Zuniga (1996) 46 Cal.App.4th 81, 84 [ 53 Cal.Rptr.2d 557] [finding waiver when counsel had a meaningful opportunity to object to court's sentencing choice but failed to do so].)
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 respond to the Cunningham decision by making the selection of the appropriate prison term from the triad specified by statute entirely discretionary with the trial court. As amended, the section provides, in part, "The court shall set forth on the record the reasons for imposing the term selected. . . ."
Failure to present a claim or objection in a timely fashion results in a "forfeiture," rather than a "waiver," of the point. ( In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2 [ 13 Cal.Rptr.3d 786, 90 P.3d 746].)
b. Imposition of the upper terms did not violate Velasquez's right to a jury trial
Velasquez's determinate sentence of 24 years on count 3 for assault with a firearm consisted of the upper term of four years, plus the upper term of 10 years for the firearm enhancement under section 12022.5, subdivision (a), and an additional 10 years for the criminal street gang enhancement. As discussed, in selecting the upper terms the trial court failed to articulate on the record its reasons for doing so; and Velasquez failed at that time to object. However, in deciding to impose the sentence on count 3 consecutively with the sentence on count 9 (attempted murder), the trial court stated on the record five aggravating circumstances: (1) the crimes involved great violence, great bodily injury or threat of great bodily injury (Cal. Rules of Court, rule 4.421(a)(1)); (2) the victims were particularly vulnerable (rule 4.421(a)(3)); (3) Velasquez was armed with a firearm during the commission of some of the crimes (rule 4.421(a)(2)); (4) Velasquez has engaged in a pattern of violent conduct, which presents a danger to society (rule 4.421(b)(1)); and (5) Velasquez had served a prior prison term (rule 4.421(b)(3)). The probation report provided to the court prior to sentencing identified some of the same aggravating factors mentioned by the trial court and also that Velasquez's prior convictions as an adult or adjudication of commission of crimes as a juvenile were numerous or of increasing seriousness (rule 4.421(b)(2)). In their sentencing memorandum the People identified additional factors they believed applicable to the case: (1) Velasquez induced others to participate in the commission of the crime or occupied a position of leadership or dominance of other participants in its commission (rule 4.421(a)(4)); and (2) the manner in which the crime was carried out indicates planning, sophistication or professionalism (rule 4.421(a)(8)).
References to a rule or rules are to the California Rules of Court.
Velasquez objected in the trial court to the court's reliance on his use of a firearm in committing some of the offenses in connection with the imposition of consecutive sentences on counts 3 and 9 because his sentence on both counts had been enhanced for firearm use. (Rule 4.425(b) [any circumstances in aggravation may be considered in deciding whether to impose consecutive rather than concurrent sentences except (i) "[a] fact used to impose the upper term," (ii) "[a] fact used to otherwise enhance the defendant's prison sentence," and (iii) "[a] fact that is an element of the crime. . . .") It would be equally improper for the trial court to rely on the fact Velasquez had used a firearm in committing an assault with a firearm at Read's Liquor, as alleged in count 3, to impose upper terms. (Former § 1170, subd. (b) ["The court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law"].)
As he did in his supplemental opening brief filed shortly after Blakely, supra, 542 U.S. 296, was decided in late June 2004, in his letter brief on remand from the United States Supreme Court for reconsideration of this case in light of Cunningham, supra, 549 U.S. 270 [ 127 S.Ct. 856], Velasquez contends imposition of the upper term sentences for assault and the related firearm use enhancement based on factual determinations made by the court, not the jury, violated his right to a jury trial guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution.
Velasquez's sentencing hearing was held on November 14, 2003, more than seven months before Blakely was decided. Although Velasquez did not object on constitutional grounds in the trial court to the imposition of the upper term sentence on count 3 and the related gun enhancement, in their supplemental briefing on remand from the United States Supreme Court, the People do not contend Velasquez has forfeited his Blakely/Cunningham argument, implicitly recognizing (as we had held in our February 16, 2005 opinion) any such objection based solely on Apprendi v. New Jersey (2000) 530 U.S. 466 [ 147 L.Ed.2d 435, 120 S.Ct. 2348] would have been futile. (See People v. Boyette (2002) 29 Cal.4th 381, 432 [ 127 Cal.Rptr.2d 544, 58 P.3d 391] [timely objection not required to preserve issue for appeal if objection would be futile]; see also People v. Vera (1997) 15 Cal.4th 269, 276-277 [ 62 Cal.Rptr.2d 754, 934 P.2d 1279] [constitutional claim, including denial of right to a jury trial, may be raised for first time on appeal]; People v. Scott, supra, 9 Cal.4th at p. 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].)
In Cunningham the Supreme Court reaffirmed Apprendi v. New Jersey, supra, 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 [ 160 L.Ed.2d 621, 125 S.Ct. 738], overruled Black, supra, 35 Cal.4th 1238, and held California's determinate sentencing law (DSL) violates a defendant's constitutional right to a jury trial 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, 549 U.S. at pp. ___-___ [ 127 S.Ct. at pp. 863-864].)
On February 20, 2007, the United States Supreme Court vacated the judgment in 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. 270 [ 127 S.Ct. 856].) On February 21, 2007 the California Supreme Court directed the parties on remand to submit additional briefs addressing the effect of Cunningham on the issues in the case. ( People v. Black, 35 Cal.4th 1238, overruled and cause remanded for further consideration in light of Cunningham, supra, 549 U.S. 270 [ 127 S.Ct. 856] (order on remand Feb. 21, 2007, S126182).)
"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 (`The "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, 549 U.S. at p. [ 127 S.Ct. at p. 868].)
Although Cunningham invalidated a significant part of the DSL and generally precludes the trial judge from finding facts or circumstances in aggravation that expose a defendant to an elevated or upper term sentence, the Supreme Court also reaffirmed its prior holdings that the trial court may increase the penalty for a crime based upon the defendant's prior convictions without submitting that question to a jury. ( Cunningham, supra, 549 U.S. at p. [ 127 S.Ct. at p. 868]; see Almendarez-Torres v. United States (1998) 523 U.S. 224 [ 140 L.Ed.2d 350, 118 S.Ct. 1219]; Blakely, supra, 542 U.S. at p. 301; Apprendi, supra, 530 U.S. at pp. 488, 490.) Prior to the decision in Cunningham (and before the California Supreme Court's decision in Black, supra, 35 Cal.4th 1238), this prior conviction exception to Apprendi and Blakely was construed broadly by California appellate courts to apply not only to the fact of the prior convictions 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. ( People v. Thomas (2001) 91 Cal.App.4th 212, 221-222 [110 Cal.Rptr.2d 571] ["courts have held that no jury trial right exists on matters involving the more broadly framed issue of `recidivism' "]; see People v. McGee (2006) 38 Cal.4th 682, 706-707 [ 42 Cal.Rptr.3d 899, 133 P.3d 1054] ["numerous state and federal court decisions have interpreted the Almendarez-Torres exception more broadly than defendant urges here, and have concluded that Apprendi does not preclude a court from making sentencing determinations related to a defendant's recidivism"].)
The question whether this is a proper interpretation of the prior conviction exception of Almendarez-Torres v. United States, supra, 523 U.S. 224, as set forth in Cunningham, is currently pending before the California Supreme Court. ( People v. Towne, review granted July 14, 2004, S125677, supplemental briefing ordered Feb. 7, 2007 [parties to address the following issue, among others: "Do Cunningham v. California, supra, and Almendarez-Torres v. United States[, supra,] 523 U.S. 224, 239-247, 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.)
As discussed, in selecting the upper terms the trial court did not articulate on the record its reasons for doing so; and Velasquez failed at that time to object. Based on a review of the various presentencing reports and the People's sentencing memorandum submitted to the trial court in connection with its sentencing decision in this case, however, it is apparent that two of the aggravating factors present in this case — that Velasquez had served a prior prison term and that his prior adult convictions were numerous — directly relate to Velasquez's recidivism, as that term has been construed by California appellate courts. (See People v. Tim (2007) 152 Cal.App.4th 366 [ 60 Cal.Rptr.3d 887] [post- Cunningham case; imposition of upper term sentence based on court's finding of recidivism-related factors does not violate defendant's Sixth Amendment right to jury trial]; People v. Abercrombie (2007) 151 Cal.App.4th 585, 591 [ 59 Cal.Rptr.3d 920] [same].) Accordingly, the trial court could properly rely on those two aggravating factors to impose an upper term for assault and the related firearm enhancement.
To be sure, the other factors the trial court may in fact have considered in imposing the upper term sentences — that the assault at the liquor store involved great violence, great bodily harm or threat of bodily harm, that the victim was particularly vulnerable, that Velasquez induced others to participate in the crime or occupied a position of leadership over other participants in its commission, that the manner in which the crime was carried out involved planning, sophistication or professionalism and that Velasquez has engaged in violent conduct indicating a serious danger to society — were not established by means that satisfy the Sixth and Fourteenth Amendments under Blakely and Cunningham. And we acknowledge we cannot be certain whether, particularly in light of the lengthy indeterminate sentence imposed on Velasquez on count 9 (life, with a minimum parole eligibility date of 15 years, plus 25 years to life), the trial court would have chosen a lesser sentence for count 3 had it considered only the two recidivist factors. Nonetheless, those two factors alone — Velasquez's prior prison term and his numerous prior adult convictions, each established by means that satisfy the governing Sixth Amendment authorities — "exposed" Velasquez to an upper term sentence under the DSL on the assault charge and the related firearm enhancement. The upper terms were thus fully authorized as the statutory maximum based on the jury's verdict and the court's findings on the recidivism factors. (See People v. Osband (1996) 13 Cal.4th 622, 730 [ 55 Cal.Rptr.2d 26, 919 P.2d 640] [single valid factor in aggravation supports imposition of upper term].) As a result, even though the trial judge may have relied more broadly on the nature of his past and current crimes as aggravating factors in exercising his discretion to impose the two upper terms, Velasquez's Sixth and Fourteenth Amendment rights under Cunningham were not violated. (See Cunningham, supra, 549 U.S. at pp. ___ — ___[ 127 S.Ct. at pp. 863-864] ["[t]his 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 . . ."]; People v. Reyes (2007) 150 Cal.App.4th 735, 739 [ 58 Cal.Rptr.3d 692] [because existence of single aggravating circumstance established by constitutionally permissible means is sufficient to support imposition of upper term as statutory maximum for offense, "trial court properly made its own additional findings regarding aggravating circumstances not submitted to the jury in support of its discretionary sentencing decision"].)
Failure to obtain jury determinations as to the aggravating factors that implicate Blakely and Cunningham may be harmless beyond a reasonable doubt. (See Washington v. Recuenco (2006) 548 U.S. 212 [ 165 L.Ed.2d 466, 126 S.Ct. 2546] [ Apprendi/Blakely error not "structural error" requiring automatic reversal]; People v. Sengpadychith (2001) 26 Cal.4th 316, 327 [ 109 Cal.Rptr.2d 851, 27 P.3d 739] [ Apprendi error reviewable under the harmless error standard of Chapman v. California (1967) 386 U.S. 18, 24 [ 17 L.Ed.2d 705, 87 S.Ct. 824]].) Here, however, despite the severity of the assault with a firearm, which also involved an attempted robbery of the liquor store during which Velasquez went behind the counter and pointed a shotgun at one of the store's owners, we cannot say beyond a reasonable doubt the jury would have made the findings necessary to support any of the remaining aggravating factors, although the evidence is certainly sufficient to sustain such findings if they had been made by the jury.
The same fact cannot be used to impose an upper term on a base count and an upper term for an enhancement. ( People v. Scott, supra, 9 Cal.4th at p. 350.) Accordingly, both recidivism factors are necessary to support the two upper term sentences imposed in this case.
Had the Supreme Court intended to hold that all aggravating factors upon which the trial court bases its decision to impose the upper term must be established by means that satisfy the Sixth Amendment, we have no doubt Justice Ginsburg would have written the court's opinion in Cunningham to clearly impose that requirement, rather than speaking in terms of the existence of a constitutionally proper aggravating factor that exposes the defendant to the upper term sentence or situations in which the upper term is authorized, language that plainly connotes the existence thereafter of a sentencing determination to be made by the trial court after reviewing circumstances in aggravation and mitigation not submitted to the jury. This interpretation of Blakely and Cunningham, which we believe is compelled by the plain language of those cases, no more trivializes the significance of those decisions than does the Legislature's passage of Senate Bill No. 40 (2007-2008 Reg. Sess.), which now "exposes" a defendant to the upper term sentence in the discretion of the trial court without any further factual findings that satisfy the governing Sixth Amendment authorities. (See fn. 4, ante.)
Indeed, Justice Kennard in her concurring and dissenting opinion in Black, supra, 35 Cal.4th 1238, made just this argument: "Under California law, the existence of a single aggravating circumstance is sufficient to support imposition of an upper term. [Citation.] In this case, the jury's findings pertaining to defendant's probation eligibility, and the trial court's findings pertaining to defendant's criminal record, were each sufficient to satisfy this statutory requirement, thereby making the upper term the statutory maximum for the offense. [Citation.] Once the upper term became the statutory maximum in this manner, defendant's right to jury trial under the federal Constitution's Sixth Amendment was satisfied, and the trial court on its own properly could — and did — make additional findings of offense-based aggravating circumstances in support of its discretionary sentence choice to impose the upper term." ( Black, at p. 1270 (cone. dis. opn. of Kennard, J.).)
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 also currently pending before the California Supreme Court. (E.g., People v. Black, supra, S126182; People v. Towne, supra, S125677.)
In sum, the trial court did not commit sentencing error in imposing the upper term on count 3 and the related firearm enhancement.
4.-6. 4. Velasquez's Contention the Sentences on Counts 5 and 12 Should Have Been Stayed Pursuant to Section 654 Lacks Merit The trial court imposed sentences of 14 years on both counts 5 and 12, each composed of the middle term of two years, plus two years for the gun enhancement under section 12021.5, subdivision (a), and 10 years for the criminal street gang enhancement. Velasquez contends the sentences imposed on counts 5 and 12, to be served concurrently to the consecutive sentences imposed on counts 3 and 9, should have been stayed pursuant to section 654 because the charge of possession of a short-barreled shotgun in count 5 was indivisible from the robbery charge in count 10 and the charge of possession of a firearm by a felon in count 12 was indivisible from the attempted-murder charge in count 9. a. General principles governing application of section 654 Section 654 prohibits punishment for two offenses rising 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.) 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 ( Jones); 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].) b. Application of section 654 to firearm possession offenses Section 654's application to a defendant who unlawfully possessed a firearm and used the weapon to commit a separate offense has been analyzed in a number of appellate decisions. As Division Three of this court explained in Jones, supra, 103 Cal.App.4th at page 1144, "multiple punishment is improper where the evidence `demonstrates at most that fortuitous circumstances put the firearm in the defendant's hand only at the instant of committing another offense. . . .' [Citation.]" (Italics added.) For example, in People v. Bradford (1976) 17 Cal.3d 8, after being stopped by a highway patrol officer for speeding, the defendant, who had just robbed a bank, snatched the officer's handgun and shot at the officer and another motorist before fleeing. ( Id. at p. 13.) Because the defendant's possession of the revolver was not antecedent to and separate from the use of the firearm in assaulting the officer, the Supreme Court held punishment for both assault with a deadly weapon upon a peace officer and possession of a firearm by a felon was prohibited by section 654. On the other hand, in People v. Hudgins (1967) 252 Cal.App.2d 174 the defendant, a felon, broke into his wife's house, shot and killed a male guest and threatened to kill his wife. The Court of Appeal rejected defendant's argument section 654 barred punishments for both murder and gun possession in violation of section 12021, holding, "The acts constituting the offenses were separable. Possession of the gun constituted one offense, and this was an act separate and apart from any use that was made of the gun, and would have been a completed offense even if no use had been made of it." ( Hudgins, at p. 185.) Similarly, in Jones, supra, 103 Cal.App.4th 1139, the court upheld imposition of concurrent sentences for shooting at an inhabited dwelling and possession of a firearm by a felon, holding that, when a felon commits a crime using a firearm and there is no suggestion the defendant accidentally came upon the weapon at the precise moment the primary offense occurred, "it may reasonably be inferred that the firearm possession is a separate and antecedent offense, carried out with an independent, distinct intent from the primary crime." ( Id. at p. 1141.) The court explained, "[T]he evidence was sufficient to allow the inference that Jones's possession of the firearm was antecedent to and separate from the primary offense of shooting at an inhabited dwelling. It strains reason to assume that Jones did not have possession for some period of time before firing shots at the [victim's] home. . . . Section 12021 is violated whenever a felon intentionally has the weapon in constructive or actual possession. [Citation.] Jones necessarily must have had either actual or constructive possession of the gun while riding in the car, as evidenced by his control over and use of the gun during the shooting. Jones's violation of section 12021 was complete the instant Jones had the firearm within his control prior to the shooting." ( Id. at p. 1147.) c. Substantial evidence in this case supports imposition of additional sentences on the gun-possession charges Based on the principles summarized in Jones, supra, 103 Cal.App.4th 1139, and the well-established rules limiting the scope of our review in cases questioning the sufficiency of the evidence to support a criminal judgment, substantial evidence supports the trial court's implied findings that Velasquez's possession of the two guns were acts separate and apart from the use that was made of the guns in the attempted murder of Ismail at the pool hall and the robbery of the liquor store. (See People v. Blake (1998) 68 Cal.App.4th 509, 512 [trial court's implied finding that defendant harbored a separate intent and objective for each offense will be upheld on appeal if supported by substantial evidence].) With respect to the attempted murder of the security guard Ismail, the evidence established that, following a heated argument concerning payment for beer and use of the pool table and while Ismail was telephoning his manager for assistance, Velasquez advanced toward him with the gun in his possession. Velasquez, however, fired only after one of his confederates called out, "`Shoot him. Shoot him.'" Whether Velasquez had the gun with him all night or removed it from a hidden location at the pool hall, he plainly intended to possess the firearm when he first obtained it, which necessarily occurred before he actually shot Ismail. That Velasquez may not have possessed "the weapon for a lengthy period before commission of the primary crime is not determinative." ( Jones, supra, 103 Cal.App.4th at pp. 1147-1148.) Similarly, with respect to the robbery of the liquor store, the evidence established that one of Velasquez's two accomplices pointed a black handgun at the husband-and-wife owners of the store, demanding money and motioning toward the cash register. While the robbery was in progress, Velasquez went behind the counter with the short-barreled shotgun and pointed it at the husband, who grabbed his own gun and shot Velasquez. Based on these facts, even if the shotgun might have been transported to the scene by one of Velasquez's accomplices, Velasquez necessarily had actual or constructive possession of the short-barreled shotgun antecedent to his personal use of it during the robbery. (See Jones, supra, 103 Cal.App.4th at pp. 1148-1149.) Accordingly, the trial court did not err by failing to stay pursuant to section 654 the sentences imposed on counts 5 and 12. 5. The Enhancements Imposed Under Section 12021.5, Subdivision (a), on Counts 5, 10 and 12 Must Be Stricken The November 14, 2003 minute order of the sentencing hearing and the abstract of judgment reflect that the trial court imposed a two-year firearm enhancement under section 12021.5, subdivision (a), on each of counts 5, 10 and 12. Velasquez argues imposition of those two-year enhancements is error because a special allegation under section 12021.5, subdivision (a), was not pleaded as to counts 5 and 10 and was not found true by the jury as to any of the three counts. "All enhancements shall be alleged in the accusatory pleading and either admitted by the defendant in open court or found to be true by the trier of fact." (§ 1170.1, subd. (e).) As to counts 5 and 10, the section 12021.5, subdivision (a), enhancements were neither alleged in the information nor found true by the jury or admitted by Velasquez. Indeed, the robbery of Tran, the pool hall manager, alleged in count 10 did not involve the use of a gun, rendering section 12021.5, subdivision (a), wholly inapplicable. As to count 12, although the enhancement was pleaded in the information, it was not submitted to the jury. Thus, the section 12021.5, subdivision (a), enhancements must be stricken as to counts 5, 10 and 12. ( Cunningham, supra, 127 S.Ct. at pp. 863-864 ["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"].) Relying on People v. Chevalier (1997) 60 Cal.App.4th 507 ( Chevalier), the People contend it was not necessary for the jury to specifically find the section 12021.5, subdivision (a), enhancement allegations true as to count 12 because a true finding can be inferred from the jury's verdict that Velasquez possessed a firearm as charged in count 12 and its true finding on the criminal street gang enhancement as to that count. Whatever the validity of Chevalier in light of Apprendi, Blakely, and Cunningham, it plainly is distinguishable from the circumstances of this case. In Chevalier the defendant argued the weight enhancement imposed on him under Health Safety Code section 11370.4, subdivision (a)(6), could not be sustained because, although the jury made a finding on the weight of the substance involved, it did not make a specific finding that he "was substantially involved in the planning, direction, execution, or financing of the underlying offense." (Health Saf. Code, § 11370.4, subd. (a).) The Court of Appeal held the fact the jury had been properly instructed as to the substantial-involvement requirement of the enhancement and had found the weight allegations true was sufficient to support imposition of the enhancement. ( Chevalier, at p. 513; see also People v. Williams (2002) 99 Cal.App.4th 696, 701 [enhancement could be imposed when based on same prior conviction specifically found true by the jury].) Here, in contrast, the jury was neither instructed under section 12021.5, subdivision (a), nor did it make any specific findings as to the requirements of the enhancement. Accordingly, no basis exists for imposing an enhancement under section 12021.5, subdivision (a). 6. The Abstract of Judgment Must Be Modified to Reflect the Stay of the Sentences on Counts 4 and 7 In sentencing Velasquez the trial court stayed execution of the sentences imposed on counts 1, 4 and 7 pursuant to section 654. As the People note, the abstract of judgment fails to indicate the stay of the sentences on counts 4 and 7. Accordingly, a corrected abstract of judgment must be prepared to reflect that stay.
See footnote, ante, page 1503.
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."
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. Velasquez does not argue to the contrary.
Section 12021.5, subdivision (a), provides: "Every person who carries a loaded or unloaded firearm on his or her person, or in a vehicle, during the commission or attempted commission of any street gang crimes described in subdivision (a) or (b) of Section 186.22, shall, upon conviction of the felony or attempted felony, be punished by an additional term of imprisonment in the state prison for one, two, or three years in the court's discretion."
The People concede a special allegation under section 12021.5, subdivision (a), was not pleaded in the information as to counts 5 and 10. They suggest, however, that the trial court did not impose the section 12021.5, subdivision (a), enhancements as to those counts but that the abstract of judgment incorrectly identifies the imposition of such enhancements as to counts 5 and 10. Although it is unclear from the reporter's transcript of the sentencing hearing whether the trial court imposed the section 12021.5, subdivision (a), enhancements as to counts 5 and 10, the imposition of those enhancements is reflected not only in the abstract of judgment but also in the trial court's minute order detailing Velasquez's sentence. Accordingly, we treat the matter as if the enhancements had been imposed. The parties appear to agree the trial court misspoke when it imposed the section 12021.5, subdivision (a), enhancement as to "count 4" instead of count 12.
A section 12021.5, subdivision (a), enhancement was pleaded as to count 7. That enhancement, however, was not imposed by the trial court, as it is not reflected in either the minute order from the sentencing hearing or the abstract of judgment
DISPOSITION
The judgment is modified to strike the firearm enhancements imposed on counts 5, 10 and 12. As modified, the judgment is affirmed. The superior court is directed to prepare a corrected abstract of judgment deleting the firearm enhancements imposed under section 12021.5, subdivision (a), on counts 5, 10 and 12 and reflecting the stay of sentence on counts 4 and 7 and to forward the corrected abstract of judgment to the Department of Corrections.
Woods, J., concurred.
I concur in all portions of the majority opinion, with the exception of part 3b. of that opinion which upholds imposition of upper term sentences despite the U.S. Supreme Court's opinion in Cunningham v. California. I do so for reasons recited previously in both majority and dissenting opinions and repeat here only because the California Supreme Court already has or is likely to grant review, as it appears to have done in all Cunningham cases.
Cunningham v. California (2007) 549 U.S. 270 [ 166 L.Ed.2d 856, 127 S.Ct. 856].
In my view, on this record we cannot conclude the trial court would have imposed the high terms on each and all of these counts based solely on its assumed findings appellant had served a prior prison term and had "numerous" convictions. Indeed, because the trial court failed to put its findings on the record, we have to speculate whether it would have made those findings and also whether it would have considered them worthy of mention to say nothing of determinative of its decision to impose the high term sentences on these counts.
For purposes of this dissent, I accept the test the California Supreme Court announced in People v. Avalos. That is, in reviewing a sentence based on both proper and improper aggravating factors we "must . . . reverse where [we] cannot determine whether the improper factor was determinative for the sentencing court." It is not what could have been determinative if the trial court had known some of the factors it used would turn out to have been improper. Rather, it is what the sentencing court did use that " was determinative" in fixing the sentence the trial court actually meted out.
People v. Avalos (1984) 37 Cal.3d 216 [207 Cal.Rptr. 549, 689 P.2d 121].
People v. Avalos, supra, 37 Cal.3d at page 233, italics added.
Here we have only speculation to guide us in seeking to divine which factors the trial court used at all and which of those factors were determinative in raising the sentences on these counts to the upper term. From the majority opinion itself, we do know most of the available aggravating factors were ones only a jury not a judge could properly find true under Cunningham.
The majority opinion cites a passage from the Supreme Court's opinion in People v. Osband to the effect "[o]nly a single aggravating factor is required to impose the upper term." But this pre- Apprendi case has little relevance to the case before this court. After upholding the death sentence Osband received for a rape-murder, the court turned to the determinate prison sentences the trial court imposed for other offenses occurring during the crime. Finding the trial court violated the "dual use" prohibition by using one of the aggravating factors to both make the sentences consecutive and to impose the high term on one of those offenses, the court had to decide whether the high term could be affirmed on the basis of other aggravating factors. "`Improper dual use of the same fact for imposition of both an upper term and a consecutive term or other enhancement does not necessitate resentencing if "[i]t is not reasonably probable that a more favorable sentence would have been imposed in the absence of the error."' [Citation.]. . . . In this case, the court could have selected disparate facts from among those it recited to justify the imposition of both a consecutive sentence and the upper term, and on this record we discern no reasonable probability that it would not have done so." Osband and its statement saying a single aggravating factor will suffice is readily distinguishable. In that case, only Watson error was involved — dual use of an aggravating factor in violation of a statutory prohibition. Thus, the reviewing court only remands for resentencing if it finds a "reasonable probability" the trial court would not have imposed the high term had the improper factor been unavailable. Furthermore, in Osband only one of several strong aggravating factors had been found improper. It was as if in the case before this court somehow only the trial court's finding of victim vulnerability had violated Cunningham and its predecessors, while any of the several other aggravating factors relating to violence, appellant's leadership position, and the planning, sophistication or professionalism of the crime had remained available to upgrade the sentences on these offenses. While it is true even a single legitimate aggravating factor can support an upper term, that is true only if the trial court indeed found that single legitimate factor sufficient by itself to impose the upper term sentence it did — or definitely would have if it were the only aggravating factor in the case. The mere presence of a legitimate aggravating factor does not justify upholding an upper term sentence.
People v. Osband (1996) 13 Cal.4th 622 [ 55 Cal.Rptr.2d 26, 919 P.2d 640], upholding the death penalty as well as upper term and consecutive sentences for related crimes in a rape-murder case.
People v. Osband, supra, 13 Cal.4th at page 728.
People v. Osband, supra, 13 Cal.4th at pages 728-729, italics added.
In the case before this court, in contrast to Osband, the nonrecidivist factors the trial court, rather than the jury, found to be true were not just improper, but constitutionally improper. Consequently, the Chapman standard applies and we must remand for resentencing unless we can determine beyond a reasonable doubt the improper factor or factors were not determinative in the sense of tipping the scale toward the upper term. Here we have nothing but speculation about what the judge might have done to make that evaluation.
Chapman v. California (1967) 386 U.S. 18 [ 17 L.Ed.2d 705, 87 S.Ct. 824].
The majority suggests the presence of any prior conviction in a defendant's past effectively negates Apprendi-Blakely-Cunningham. In this case, as long as the trial court had before it a prior conviction or some other recidivist factor which it might have used to elevate defendant's punishment defendant is to be considered "exposed" to that aggravated term and thus it does not violate Cunningham and its predecessors. Furthermore, because appellant was "exposed" to the high term by the mere presence of a prior in his record (even though that prior may not have been determinative in the trial court's imposition of the high term) the trial court was free to itself find and use other aggravating factors the jury otherwise would be required to find when the court was making the court's decision whether or not in fact to elevate the sentence from the midterm to the high term. (Maj. opn., ante, at p. 1514.)
According to this line of reasoning, a conviction or other recidivist factor a trial court did not consider serious enough by itself to warrant an upper term nonetheless trumps Cunningham and its predecessors. The mere presence of that prior conviction in a defendant's record permits a trial judge rather than the jury to find the factors the court deems the true reason for raising the sentence beyond that permitted by the findings the jury made. The result? Apprendi-Blakely-Cunningham would only apply when trial courts are sentencing defendants who have no prior convictions. Even a single prior conviction, or a single juvenile adjudication many years in the past, would be enough to disable the requirement aggravating factors be decided by a jury not the sentencing judge.
In my view, this position represents the sort of narrow reading of Apprendi which would force the United States Supreme Court to once again emphasize it meant what it said in that opinion, as it did in Blakely and now in Cunningham. I find nothing in Apprendi, Blakely or Cunningham to suggest the requirement of jury findings as to aggravating factors other than prior convictions is disabled in any and all cases where the defendant had a prior conviction. Yes, a prior conviction can be used to elevate a sentence without a jury finding. Yes, a trial judge can use a prior conviction alone as the sole grounds for elevating a sentence — at least when that is appropriate. But this does not mean the prior conviction can serve as a smokescreen behind which the trial judge in fact employs other factors as the true reasons for determining the higher term is warranted.
Perhaps it will be helpful to clarify the limited point of this dissent in the context of the case before this court. I am not saying remand would necessarily be required had the trial judge expressly said he would elevate the sentence to the upper term based solely on the prior convictions and related behavior. (Such a statement would compel a reviewing court to determine whether this represented an abuse of discretion, however, something I need not address here.) Had the judge made this clear during the sentencing hearing, reversal might not be required even though he had gone on to say he also found the other aggravating factors to be enough by themselves to impose the high term.
But the trial judge here did something entirely different. He imposed the upper terms without stating why he was doing so, and without even making any findings as to any of those factors.
Accordingly, I would remand for resentencing. At that hearing, without any further findings, the trial court could impose the midterm on any or all of the offenses on which it previously imposed the high term. As to any of the offenses on which it proposes to impose the high term once again, however, the trial court would be required to ignore the factors it improperly found true and determine whether it would still elevate the sentence to the high term as to that offense based solely on (1) the elements of the offense charged and found true beyond a reasonable doubt by the jury, and (2) appellant's prior convictions for which no jury finding is required.
Appellant's petition for review by the Supreme Court was denied October 17, 2007, S155357. George, C. J., did not participate therein.