Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CM023130.
ROBIE, J.
A jury found defendant Kenny Lynn Warren guilty of two counts of assault on a peace officer with a semiautomatic firearm while personally discharging a firearm, one count of false imprisonment by violence while personally using a firearm, one count of child endangerment, and one count of possession of a controlled substance. He pled no contest to being a felon in possession of a firearm. The court sentenced him to 44 years 8 months in prison.
Defendant appeals, raising the following nine contentions: (1) the court erred in denying his motion to suppress the evidence against him; (2) the People presented insufficient evidence to support his convictions for assault on a peace officer because they failed to prove the officers were lawfully performing their duties; (3) this court should review the in camera proceedings in connection with his motion to compel disclosure of peace officer personnel records; (4) the court violated his constitutional rights by imposing the upper term for one of his convictions for assault on a peace officer; (5) the court erred in failing to stay his sentence for false imprisonment of one of the officers in light of his sentence for assault of that officer; (6) the court violated his constitutional rights in making factual findings regarding his separate intents and objectives in assaulting and falsely imprisoning one of the officers; (7) the court erred in imposing the upper term on the firearm use enhancement; (8) the court erred in denying his request for a continuance; and (9) the abstract of judgment must be amended. We order the abstract amended and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
At the time of trial, defendant and his wife P. had been married for 14 years and had been a couple for 25 years. They have two children, including one teenaged son K.
In May 2005, P. had a temporary restraining order against defendant that required he stay at least 100 yards away from her and move out of their apartment. In early June 2005, the court dissolved the restraining order because neither defendant nor P. appeared at a court hearing. Still, P. changed the locks on the apartment because she and defendant were having marital problems.
On June 13, 2005, K. woke P. to tell her there was a broken window in the kitchen. Defendant then came into P.’s bedroom and demanded to know why she had changed the locks. P. called 911.
About 1:55 a.m. that morning, Chico Police Officer Jeff Durkin responded to a domestic disturbance call. The dispatcher said that a male was breaking items inside the apartment and there might be a restraining order violation. Officers Robert Ponce and Matthew Nowicki also responded to the call.
Officer Durkin was the first officer to arrive at the apartment complex. He heard a man and a woman arguing, saw a door with a broken window pane, and came across a woman (P.) in the apartment complex corridor who seemed distraught and who told the officer in a low agitated voice that “he was inside the residence breaking items and she wanted him to leave.” Officer Durkin went to the front of the apartment and through the open door saw a man (defendant) standing inside the living room. Defendant was agitated and “moving around quite a bit.” While using profanity, he refused the officer’s repeated requests to come outside and talk with him about “the alleged domestic disturbance.”
Officer Durkin decided to go inside the apartment and detain defendant. When the officer stepped inside, defendant ran out of the living room. Officers Durkin and Nowicki chased defendant down a hallway and stood at the threshold of a poorly-lit bedroom in which defendant was standing. Defendant appeared agitated and aggressive and was in a “fighting stance” “directed towards [the officers].” He had “his fists out in front of him and a bladed sort of stance,” looking as though he was “preparing for [the officers] to engage in some kind of physical type altercation.” Officer Durkin went for his pepper spray but then heard Officer Nowicki say that he was going to use his Taser gun. Defendant reached under his shirt for a handgun that was in the waistband of his pants.
We will recount in greater detail the facts leading up to the entry into the apartment in part I of the Discussion.
Officer Durkin yelled “gun, gun, gun” and ran into the bathroom for cover. Officer Nowicki retreated toward the door. When Officer Durkin reached the bathroom, defendant fired several shots in rapid succession from the bedroom area. Officer Durkin returned fire and radioed for help.
Officer Nowicki decided to re-enter the apartment with Officer Ponce. As they ran inside, defendant fired directly at them from the bedroom. Both officers “hit the ground.” Officer Nowicki fired four shots, temporarily stopping defendant’s fire. Officer Nowicki pointed a flashlight toward the bedroom door. Defendant fired another shot toward the officers.
Meanwhile, K. escaped from the apartment through a window. Not realizing K. had escaped, defendant called out to K. and when his son did not respond, defendant yelled at the officers that they had killed K. Defendant told them to “‘Bring it on,’” because he had “‘two more clips.’” All three officers “‘hunkered down.’”
Officer Durkin, who still was in the bathroom, struck up conversation with defendant, who remained in the bedroom. When the officer told defendant that his son was okay, defendant and Officer Durkin developed a “rapport.” During their four-hour conversation, defendant told the officer he would free him in exchange for a beer or soda. The officers told defendant they could not do the exchange “right then.”
Eventually, a hostage negotiation team was called in, tear gas deployed, and Officer Durkin was able to escape by “thr[owing] [him]self outside the window.” After a long struggle, defendant was detained.
DISCUSSION
I
The Court Did Not Err In Denying Defendant’s Suppression Motion
Defendant contends the court erred in denying his motion to suppress the evidence against him because there were no exigent circumstances justifying the warrantless entry into the apartment. He is wrong.
A
Facts From The Suppression Hearing
Shortly before 2:00 a.m. in June 2005, Officer Durkin was on routine patrol in full uniform when he was dispatched to a 911 “domestic disturbance call” at unit C of an apartment complex in Chico. Also dispatched to the complex were Officers Nowicki and Ponce. While they were en route, the dispatcher told them “there was a male subject causing a disturbance at that location, breaking items within the residence” and that “there may be some kind of restraining order.”
When Officer Durkin arrived at the single-story apartment complex and headed toward apartment C, he heard male and female voices that “sounded like they were involved in some kind of argument.” He went down a side yard and noticed that a door leading into one of the apartments had a broken pane of glass. As he continued down the side yard, Officer Durkin came across a woman (P.) who “seemed agitated as well as frightened.” She stood really close to the officer and in a low whisper told the officer “he was inside, he was breaking objects, and that she wanted him to leave” because “[h]e wasn’t supposed to be there.” Officer Durkin told P. to remain in the side yard, and he went to apartment C. The front door was open. From his vantage point outside the doorway, Officer Durkin saw defendant standing inside the living room area of the apartment.
Officer Durkin could not see any physical injuries on the woman, and she did not say she had been the victim of physical violence.
“For officer safety reasons” Officer Durkin thought it “would be easier and more appropriate for [defendant] to come out to be able to deal with the situation.” According to the officer, domestic violence situations are typically one of the more difficult situations with which to be involved. Most of the time the officers do not know the layout of the residence or what had gone on inside, and they “need to control the situation to be able to figure out w[hat] ha[d] occurred prior to going in the residence . . . .”
Officer Durkin made eye contact with defendant and told him to “exit the residence” and “deal with the issue.” Defendant, who was “highly agitated” and “us[ing] various forms of expletives,” “said something to the effect that he didn’t have to come out because nothing was wrong,” and told the officer that he was “trespassing.” The back-and-forth continued with Officer Durkin repeatedly asking defendant to “‘Come out’” and defendant refusing. Meanwhile, Officer Nowicki came to the door and stood to the right of Officer Durkin.
Realizing that defendant was not going to come out, Officer Durkin believed that defendant was “resisting and obstructing [his] duty to investigate this possible crime.” “[B]ased on the window and the dispatch report that [the officers] had received,” Officer Durkin “felt it was necessary to go in to detain” defendant. He stepped inside the apartment, and defendant ran out of his view and into what looked like a hall. The officers did not have a warrant to enter the apartment.
The trial court upheld the warrantless entry and search, explaining in part as follows:
“The exigent circumstances exception to the 4th Amendment warrant requirement does apply in this case. The analysis of the cases involving possible domestic violence applies to a potential victim standing at or near the entrance to the residence. 9-1-1 call, loud voices, broken out window all provide objectives of the facts upon which to support the good faith which the officers needed to investigate.”
B
Exigent Circumstances Justified The Warrantless Entry Into The Apartment
Although a warrantless entry of a residence is presumptively unreasonable, the federal Constitution allows warrantless entry under certain types of exigent circumstances. (Mincey v. Arizona (1978) 437 U.S. 385, 393-394 [57 L.Ed.2d 290, 300-301].) Exigent circumstances include emergency situations requiring swift action to prevent physical harm to a person, serious property damage, the imminent escape of a suspect, or the destruction of evidence. (People v. Ramey (1976) 16 Cal.3d 263, 276.) Exigent circumstances justifying a warrantless entry into a residence have been found in domestic disturbance cases (see, e.g., People v. Frye (1998) 18 Cal.4th 894, 989-990 (Frye); People v. Wilkins (1993) 14 Cal.App.4th 761, 772 (Wilkins)), although there is no “domestic violence exception to the warrant requirement” (People v. Ormonde (2006) 143 Cal.App.4th 282, 295 (Ormonde)). Citing (among others) Frye and Wilkins, the People argue that the warrantless entry here was justified.
In Frye, the California Supreme Court upheld the warrantless entry into an apartment in the early morning where the victim appeared beaten, stepped out of the apartment, and identified the defendant, who was still inside, as her assailant. (Frye, supra, 18 Cal.4th at pp. 989-990.) The court explained that in light of the facts then known to the officers, “they could reasonably have concluded that immediate action was necessary.” (Id. at p. 989.) Had the officers “left the scene to obtain a warrant, there was a significant risk that [the victim] would have suffered additional harm.” (Ibid.) Moreover, “[e]ven if several officers had remained on the premises with [the victim] while a warrant was being secured, the likely delay could have posed a safety risk to not only [the victim] but the remaining officers as well.” (Id. at pp. 989-990.)
In Wilkins, this court upheld the warrantless entry into a house where the officers were summoned after midnight in response to a “domestic dispute” and “found the victim crying uncontrollably and learned she had been assaulted and injured by the defendant.” (Wilkins, supra, 14 Cal.App.4th at pp. 767, 772.) In upholding the entry, this court explained, “[t]he victim was outside the house and obviously in need of shelter” and it was reasonable for the officers to conclude that the victim’s reentry into the home or even her continuing presence on the premises outside the home would spark further violence by the defendant. (Id. at p. 772.) “Furthermore, under these circumstances, the officers were not constrained to delay until an arrest warrant could be obtained. Given the time of night, the securing of a warrant would necessarily have occasioned some delay and during this period the victim would have been vulnerable to further risk of physical harm.” (Ibid.) Therefore, “[t]he risk of imminent violence resulting in further physical harm to the victim was an exigent circumstance requiring immediate action.” (Ibid.)
Distinguishing these two cases, defendant relies primarily on one case in which the court held there were no exigent circumstances justifying entry into the apartment. (Ormonde, supra, 143 Cal.App.4th at p. 291.) In Ormonde, the court found that the seriousness of the offense for which the suspect was under investigation (domestic battery) could not by itself give rise to an exigency. (Ibid.) It found no exigency because the arrest was occurring outside the apartment, the assailant’s wife was safely away from the premises, and the officers did not articulate any reason to believe other victims or suspects were involved in the battery or were inside the apartment. (Ibid.)
Contrary to defendant’s argument that this case is like Ormonde, we agree with the People that this case is more like Frye and Wilkins, and the facts here justified entry into the apartment based on exigent circumstances. The officers were responding to an early morning 911 domestic disturbance call that a man had been breaking items inside the apartment and there might have been a restraining order. (See Wilkins, supra, 14 Cal.App.4th at p. 772.) When Officer Durkin arrived at the apartment complex, he was able to confirm that there was an ongoing domestic disturbance because he heard what sounded like a man and woman arguing and saw a broken glass pane. While the officer did not encounter a physically battered victim, he did encounter a woman who was agitated and frightened who stood close to him and whispered that “he” was inside breaking objects, and she wanted him to leave because he was not supposed to be there. At least some of what P. said was corroborated in that the officer had seen a broken glass pane and encountered a “highly agitated” man (defendant) inside the apartment who was uncooperative with the officer’s request to come outside and used profanity when responding to the officer. In light of these facts, the officers reasonably concluded that immediate action was necessary. (See Frye, supra, 18 Cal.4th at p. 989.)
Unlike Ormonde, the officers here did not base their decision to enter the apartment on the fact that this was a domestic disturbance call. (See Ormonde, supra, 143 Cal.App.4th at p. 291.) To the contrary, Officer Durkin specifically stated he wanted to talk with defendant outside the apartment for officer safety reasons given that responding to domestic violence calls was one of the more difficult situations in which to be involved. It was defendant who did not comply with the officer’s request to come out and so the officer could not arrest him in front of the apartment. If the officer had left the scene to get a warrant, there would have been some delay because of the time of day (see Wilkins, supra, 14 Cal.App.4th at p. 772), and in that delay they risked that defendant would remain in the apartment and would continue destroying it. Even if some officers could have remained at the scene, they risked violence directed at P. and themselves given defendant’s “highly agitated” state, his use of profanity toward the officers, and his refusal to come out of the apartment. It would have been unreasonable for the officers to either wait to get a warrant or leave the scene. Under these circumstances, we agree with the trial court that the exigent circumstances exception to the warrant requirement applied, and the evidence against defendant discovered after the search did not have to be suppressed.
II
The People Presented Sufficient Evidence To Support Defendant’s Convictions For Assault On A Peace Officer
Defendant contends the People presented insufficient evidence to support his convictions for assault on a peace officer because they failed to prove the officers were lawfully performing their duties. While part of his contention is based on the argument that the officers lacked exigent circumstances for the warrantless entry, an argument we have already rejected, another part of his contention is based on an argument that the officers exceeded the scope of their duties once they entered the apartment. Here, we address this latter contention.
The evidence at the suppression hearing regarding entry into the apartment paralleled in all material respects the evidence at trial.
Defendant’s argument that the officers exceeded the scope of their duties once they entered the apartment is based on the fact that Officer Durkin attempted to use pepper spray on defendant and Officer Nowicki attempted to use his Taser gun on defendant even though, according to defendant, he had “taken a defensive position” and had not “initiated any physical contact with the officers.”
Defendant misunderstands the scope of our review on appeal. “When the sufficiency of the evidence is challenged on appeal, we apply the familiar substantial evidence rule. We review the whole record in a 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 find beyond a reasonable doubt that the accused committed the offense.” (In re Ryan D. (2002) 100 Cal.App.4th 854, 859.) Whether the jury could have reached a different conclusion is not for us to decide. (People v. Bean (1988) 46 Cal.3d 919, 932-933; People v. Daya (1994) 29 Cal.App.4th 697, 702.)
Applying these rules, we find substantial evidence that the officers were engaged in the performance of their duties when they attempted to use their pepper spray and Taser gun on defendant. When Officer Durkin stepped into the apartment, defendant ran out of the room and out of view. Officers Durkin and Nowicki chased him down a hallway and stood at the threshold of a poorly-lit bedroom in which defendant was now standing. Defendant was agitated and aggressive and was in a “fighting stance” directed toward the officers in which he had “his fists out in front of him and a bladed sort of a stance” looking as though he was “preparing for [the officers] to engage in some kind of physical type altercation.” It appeared as though defendant was not going to comply with the officers’ orders. Given the small space in which the officers were standing and their unfamiliarity with the poorly-lit bedroom, Officer Durkin went for his pepper spray to detain defendant. He then heard Officer Nowicki announce that he was going to use his Taser gun. At this point, defendant went for his gun.
Officer Durkin explained that the police department’s written policy on chemical agents prohibited officers from using pepper spray when taking into custody a “passively resisting suspect” but here defendant was “actively resisting” because he was “running away, agitated, showing a fighting stan[ce].” Officer Nowicki explained that the police department’s written policy on Taser guns allowed officers to use them on suspects when their behavior posed a risk of injury to themselves, others, or the officers. Here, the evidence amply demonstrates that the officers’ actions in simply pulling out their pepper spray and Taser gun were well within these policy guidelines. The officers were faced with an agitated and aggressive suspect involved in a domestic violence incident in which a glass pane had been broken. He had just fled into a poorly-lit bedroom, had assumed a fighting stance, and was not complying with any of the officers’ orders. The officers did not act unreasonably in simply drawing their pepper spray and Taser gun. The evidence to which defendant points from which he believes a jury could have reached an opposite conclusion is not germane to our analysis on a substantial evidence review.
Even defendant appears to acknowledge that the officers’ actions were reasonable in that he argues that “had they actually deployed their weapons they would have been using excessive and unreasonable force.” (Italics added.)
III
The Court Did Not Abuse Its Discretion In Denying Defendant’s Motion To Compel Disclosure Of Peace Officer Personnel Records
Defendant asks us to review the sealed transcript and documents in connection with his motion to compel disclosure of peace officer personnel records to determine whether the trial court abused its discretion in ruling on the motion. (Pitchess v. Superior Court (1974) 11 Cal.3d 531, 535-540; People v. Mooc (2001) 26 Cal.4th 1216, 1232.) Having done so, we find no abuse of discretion. (People v. Hughes (2002) 27 Cal.4th 287, 330.)
IV
The Court Did Not Violate Defendant’s Constitutional Rights In Imposing The Upper Term For One Of His Convictions For Assault On A Peace Officer
Defendant contends the court’s imposition of the upper term for one of his convictions for assault on a peace officer violated his constitutional right to have the aggravating factors determined by a jury beyond a reasonable doubt. We disagree.
The court imposed the upper term because of a number of aggravating factors found by a preponderance of the evidence, including defendant’s “numerous� “priors� that included two felonies, five misdemeanors, and four infractions. The court found no mitigating factors.
In People v. Black (2007) 41 Cal.4th 799 (Black), the California Supreme Court held that “imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (Id. at p. 816.) Here, “[b]ecause one legally sufficient aggravating circumstance was justified based on defendant’s record of prior convictions, the trial court’s finding of additional aggravating circumstances did not violate defendant’s constitutional rights under Black.” (People v. Stuart (2008) 159 Cal.App.4th 312, 314.) There was no error.
V
The Court Did Not Err By Refusing To Stay The Sentence For False Imprisonment Of Officer Durkin In Light Of His Punishment For Assault Of Officer Durkin
Defendant contends the trial court should have stayed the sentence for false imprisonment of Officer Durkin in light of his sentence for assault of Officer Durkin because he committed those crimes during a single course of conduct in which his sole objective was to “resist[] the officers’ attempt to remove him from his home.” We disagree.
The trial court refused to stay the sentence for false imprisonment because “the following crimes and their objectives were predominantly independent of each other. The crimes . . . involve separate acts of violence or threats of violence.”
“A defendant cannot be punished multiple times for convictions that arise out of ‘an indivisible transaction’ and have a ‘single intent and objective.’ [Citation.] ‘A trial court’s . . . finding that a defendant harbored a separate intent and objective for each offense will be upheld on appeal if it is supported by substantial evidence.’” (People v. Racy (2007) 148 Cal.App.4th 1327, 1336-1337.)
Here, the trial court’s finding that defendant had a separate intent and objective for the assault of Officer Durkin and a separate intent and objective for the false imprisonment of Officer Durkin is supported by substantial evidence.
Defendant shot at Officer Durkin after the officer followed him to the bedroom and drew his pepper spray. It is a reasonable inference from this evidence that defendant’s intent in assaulting Officer Durkin with the gun was to thwart the officer’s attempt to detain him and talk about the domestic disturbance incident.
In contrast, defendant falsely imprisoned Officer Durkin in the bathroom for approximately four hours after he had shot at the officers and had refused attempts by the hostage negotiators to secure Officer Durkin’s release. It is a reasonable inference from these facts that defendant committed the false imprisonment to avoid being arrested for shooting at the officers.
The evidence we have just recounted is sufficient to support the trial court’s finding of distinct intents and objectives for the assault and false imprisonment of Officer Durkin.
VI
The Trial Court’s Finding Of Separate Intents And Objectives For Defendant’s Assault And False Imprisonment Of Officer Durkin Did Not Violate Defendant’s Federal Constitutional Rights
Defendant contends the trial court’s finding that he had separate intents and objectives in assaulting and falsely imprisoning Officer Durkin must be reversed because this type of judicial fact findings violates his federal constitutional rights. We disagree.
In Black, the California Supreme Court held that the determination whether two or more sentences should be served consecutively is a “‘sentencing decision[] made by the judge after the jury has made the factual findings necessary to subject the defendant to the statutory maximum sentence on each offense’ and does not ‘implicate[] the defendant’s right to a jury trial on facts that are the functional equivalent of elements of an offense.’” (Black, supra, 41 Cal.4th at p. 823.)
This holding applies equally to a court’s decision not to stay a sentence under Penal Code section 654. This statute “is not a mandate of constitutional law. Instead, it is a discretionary benefit provided by the Legislature to apply in those limited situations where one’s culpability is less than the statutory penalty for one’s crimes. Thus, when section 654 is found to apply, it effectively ‘reduces’ the total sentence otherwise authorized by the jury’s verdict. The rule of Apprendi [v. New Jersey (2000) 530 U.S. 466, 490 [147 L.Ed.2d 435, 455], that any fact that increases the penalty for a crime beyond the prescribed statutory maximum for the crime must be submitted to a jury and proved beyond a reasonable doubt], however, only applies where the nonjury factual determination increases the maximum penalty beyond the statutory range authorized by the jury’s verdict.” (People v. Cleveland (2001) 87 Cal.App.4th 263, 270.)
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant is wrong that federal precedent such as Apprendi requires a jury rather than the court to make a determination of intent and objective. Section 654 “does not contain the ‘maximum penalty’ for any particular crime. The ‘maximum penalty’ discussed in Apprendi pertains to the specific offenses at issue; Apprendi is relevant only where a judge-made factual determination increases the maximum statutory penalty for the particular crime or crimes.” (People v. Cleveland, supra, 87 Cal.App.4th at pp. 270-271.) These rules remain intact and we will continue to follow them.
VII
The Court Did Not Err In Imposing The Upper Term On The Firearm Use Enhancement Attached To The False Imprisonment By Violence Charge
Defendant contends the court erred in imposing the upper term on the firearm use enhancement attached to his conviction for false imprisonment by violence because it violated the prohibition against dual use of facts and his constitutional right to have the aggravating factors determined by a jury beyond a reasonable doubt. Defendant’s first contention is forfeited (and his backup argument regarding ineffective assistance of counsel is not properly raised) and his second contention fails on the merits.
The prosecutor argued for the upper term on the firearm use enhancement because: (1) the crime involved “great violence,” i.e., defendant aimed and shot at Officer Durkin “multiple times knowing that he was trapped in that bathroom and refusing to let him out by remaining armed and refusing to come out of the [bed]room despite multiple requests by the officers and a special negotiation team that had come in”; and (2) defendant made an arrogant statement by offering to exchange the officer’s life for a drink.
The court imposed the upper term on the firearm use enhancement for the following reasons: “[T]he Court is finding that the circumstances in aggravation as it relates to that enhancement, outweigh those in mitigation in that in this particular case the enhancement just requires use of a firearm. [¶] In this particular case the defendant not only used it, pointed it and fired it several times in the direction of Officer Durkin, that in the Court’s judgment greatly, is greatly more serious than just the use that could have been satisfied by just pointing the gun in his direction. So it’s because of the violence demonstrated by repeated shooting that in the Court’s judgment, the aggravated term is justified.”
A
Defendant’s Dual Use Argument Has Been Forfeited And His Ineffective Assistance Argument Is Not Properly Raised
At sentencing, defense counsel argued that “use of a firearm is a reasonable necessary element of counts 1 and 2 [the two counts of assault with a firearm on a peace officer] and should not be used as circumstances in aggravation as to those counts.” Later, in response to the prosecutor’s discussion of the two counts of assault with a firearm, defense counsel added, “I just want to put on the record that this appears to be inappropriate and that the enhancement is basically punishing [defendant] again for the same conduct.”
While defendant’s comments regarding being “punish[ed] . . . again” raised the dual use issue with regard to the firearm discharge enhancements attached to defendant’s two convictions for assault with a firearm on a peace officer, his comments did not raise the dual use issue with regard to the firearm use enhancement attached to the false imprisonment conviction. Defendant therefore has forfeited the ability to raise this issue on appeal. (People v. Scott (1994) 9 Cal.4th 331, 353.)
Nevertheless, in a footnote in his opening brief defendant cursorily contends that if the issue was not properly raised, his counsel was ineffective. Defendant’s ineffective assistance of counsel claim also is not properly raised. It is addressed “only in a footnote under an argument heading which gives no notice of the contention.” (People v. Crosswhite (2002) 101 Cal.App.4th 494, 502, fn. 5.) We therefore need not address it further.
B
The Court Did Not Violate Defendant’s Constitutional Rights By Imposing The Upper Term
As we have explained in part IV of the Discussion, the California Supreme Court has held that “imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance . . . is justified based upon the defendant’s record of prior convictions.” (Black, supra, 41 Cal.4th at p. 816.) Here, although the court did not mention defendant’s two prior felony convictions or his five misdemeanor convictions as reasons for imposing the upper term on the firearm use enhancement attached to the false imprisonment by violence conviction, those prior convictions qualified as an aggravating circumstance under rule 4.421(b)(2) of the California Rules of Court. The rule provides that circumstances in aggravation include “[t]he defendant’s prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness.” “Because one legally sufficient aggravating circumstance was justified based on defendant’s record of prior convictions, the trial court’s finding of additional aggravating circumstances did not violate defendant’s constitutional rights under Black.” (People v. Stuart, supra, 159 Cal.App.4th at p. 314.)
VIII
The Court Did Not Err In Denying Defendant’s Request For A Continuance
Defendant contends the court violated his constitutional rights when it denied him a continuance made on the date set for sentencing (May 31, 2006) to retain new private counsel or to appoint him counsel (in the event he lacked funds) so that new counsel could file a motion for new trial. By the time of defendant’s request, the sentencing hearing had already been continued once (on May 10) for 21 days so the probation department could prepare its report. According to the probation report prepared on May 22, defendant said on May 1 that “his family [wa]s in the process of hiring a new attorney, as it w[as] his intention to file a Motion for a New Trial.”
At the sentencing hearing, the court asked for the prosecutor’s “position,” to which he responded, “it’s too little too late.” The prosecutor explained that it would be “delaying justice” to allow defendant more time to hire a new attorney when he had tried unsuccessfully for four weeks.
When the court asked defendant if he “ha[d] anything [he] want[ed] to tell [the court] directly on that point,” defendant responded as follows: “Yes, I believe I have very good grounds to file a motion for new trial, including the fact that one of my jurors was in custody the same time that I was in the past, and but not limited to that and at this point, if I cannot get a continuance to hire a lawyer to file a motion for new trial, can I dismiss my counsel and have one appointed along with a new investigator[?]”
The court denied defendant’s motion. The court explained that this was a “balancing issue” and based on the court’s review and observation of the trial, it did not see “any viable grounds” for a motion for new trial. As we will explain, this ruling was well within the court’s discretion and did not violate defendant’s constitutional rights.
Generally, a trial court has discretion to decide whether to grant a continuance to allow a defendant to retain an attorney of his choosing. (People v. Jeffers (1987) 188 Cal.App.3d 840, 850.) Once a continuance has been denied, the burden is on the defendant to establish an abuse of that discretion. (People v. Strozier (1993) 20 Cal.App.4th 55, 60.) In determining whether the denial was so arbitrary as to deny due process, we look to the circumstances of each case, paying particular attention to the reasons presented to the trial court at the time the request was denied. (People v. Courts (1985) 37 Cal.3d 784, 791.)
Here, defendant has not carried his burden to demonstrate the court abused its discretion in denying the continuance or that the court’s decision was arbitrary. The court engaged the parties in an extended discussion about whether to allow the continuance. It took into account the prosecutor’s concerns that the sentencing hearing had already been delayed once (albeit at the probation department’s request) and that defendant had been trying unsuccessfully to hire new counsel for approximately one month. When asked by the court if he “ha[d] anything . . . to tell [the court] directly on that point,” defendant did not explain why he had been unsuccessful in hiring new counsel during that time. Although defendant believed he had “very good grounds to file a motion for new trial,” the court was in a position to assess these preliminary claims as it had sat through trial and had not observed anything during that time that might give rise to the filing of the motion. Of course, if there were something outside the record that would give rise to such a claim, the court’s ruling would not have precluded defendant from filing a motion for habeas corpus to challenge his confinement. On this record, there was no error, constitutional or otherwise, in the court’s denial of defendant’s request for a continuance.
Despite this record, defendant complains that the court’s ruling was based in part on an “erroneous view of the law regarding motions for a new trial.” His complaint is directed at a statement made by the court that it believed it could “go ahead with sentencing today and reserve jurisdiction” under “1107 time to recall a witness” so that if defendant in fact wished to pursue a new trial motion, the court would “surely consider that.”
IX
The Abstract Of Judgment Must Be Amended
Defendant contends the abstract of judgment must be amended to reflect “the particular count[s] to which each imposed enhancement applies.” He is correct.
As it stands now, the abstract of judgment reflects that all three enhancements were imposed on count 2, one of defendant’s convictions for assault on an officer with a firearm. In reality, however, one enhancement for personally discharging a firearm (§ 12022.53, subdivision (c)) was attached to defendant’s conviction for assault on a peace officer with a firearm (§ 245, subd. (d)(2) -- count 1), a second enhancement for personally discharging a firearm (§ 12022.53, subd. (c)) was attached to defendant’s second conviction for assault on a peace officer with a firearm (§ 245, subd. (d)(2) -- count 2), and a third enhancement for personally using a firearm (§ 12022.5, subd. (a)) was attached to defendant’s conviction for false imprisonment with violence (§ 236 -- count 3). The abstract of judgment must be amended to accurately reflect the counts to which each enhancement was attached.
DISPOSITION
The judgment is affirmed. The trial court is directed to prepare an amended abstract reflecting that one enhancement for “12022.53(c)PC” was attached to count 1, one enhancement for “12022.53(c)PC” was attached to count 2, and one enhancement for “12022.5(a)PC” was attached to count 3. The trial court is further directed to send a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
We concur: SCOTLAND, P.J., DAVIS, J.
Both parties on appeal agree that the court was likely referring to section 1170. Subdivision (d) of that section allows the court “within 120 days of the date of commitment on its own motion” to “recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if he or she had not previously been sentenced . . . .”
Despite section 1170, “The Penal Code does not authorize the court to hear and grant a motion for a new trial after judgment in a criminal proceeding.” (People v. Grake (1964) 227 Cal.App.2d 289, 292.) It is not necessary that we determine whether the court misunderstood this point of law because the record makes clear that the court would have denied the motion anyway. The court explained that its decision was a “balancing issue,” in which it considered that there were no viable grounds for a new trial based on the court’s “review” and “attendance at the trial” and the fact that sentencing had been continued once before. It was on these factors that the court felt “comfortable proceeding to sentencing” and denying defendant’s request for a continuance.