DOI TODD, Acting P. J.
Appellant Guadalupe Garcia appeals from a judgment entered after a jury convicted him of possession of cocaine for sale (count 1) and possession of a controlled substance while armed with a firearm (count 2). The jury found true criminal street gang allegations as to both counts and a firearm allegation as to count 1. The trial court sentenced appellant to state prison for 13 years as a result of these convictions.
Appellant contends that there was insufficient evidence to sustain the firearm enhancement on count 1, the conviction for possession of cocaine for sale with a firearm on count 2, and the gang enhancements on counts 1 and 2. He further contends that the trial court erred in instructing the jury on the elements of possession of cocaine for sale while armed with a firearm in count 2. Finally, appellant claims that the court made errors in sentencing by selecting the upper term for the firearm and gang enhancements on counts 1 and 2 without submitting the determination to the jury, by failing to provide a statement of reasons for the upper term sentences on the enhancements, and by miscalculating his presentence conduct credits.
We affirm with directions to the trial court to correct the abstract of judgment.
On August 14, 2007, Victor Alvarez, age 16, rode his scooter to visit his friend, Jose Vasquez, age 18, who lived near 33rd Street and Hooper in the City of Los Angeles. Alvarez and Vasquez were both members of the East Side Trece gang. Vasquez's house was in an area claimed by both the East Side Trece gang and the 38th Street gang, which did not get along with each other.
At about 2:30 p.m., Alvarez was outside the gate at Vasquez's house and called for Vasquez to come outside. Alvarez heard gunshots. He began running away and was shot in the back. Alvarez was taken to the hospital by ambulance and remained hospitalized for three weeks. He suffered damage to his pancreas, liver, kidney, and lower intestines.
Vasquez's uncle, Tranquilino Carranza, and a neighbor, Jimmy Cano, were inside Carranza's house on 33rd Street when they heard the gunshots. They ran outside. Carranza saw a man run and enter a blue car, and Cano saw a blue-green car drive away. Carranza and Cano followed the car for a short distance to the intersection of 33rd Street and Compton. Carranza then returned to his house and called the police.
Los Angeles Police Department Officer Gina Bracht responded to the scene minutes after the shooting and interviewed Vasquez. Vasquez stated that he was outside of his house when he saw a Dodge automobile stop in the street near 33rd and Hooper. There were three Hispanic males in the car, two in the front and one in the back. A man got out of the front passenger seat and shot at Alvarez. At one point, the shooter yelled, "38th Street hood!" The shooter then fired at Vasquez as he hid behind a car. After the shooter got back into the car, the car fled the scene.
Los Angeles Police Department Detective David Torres, the investigating officer, arrived at the scene and interviewed Vasquez. Vasquez told him that as he was coming out to the street from his house, he heard gunshots coming from the direction of Hooper and saw a man shooting at Alvarez. The shooter called out something about the 38th Street gang and fired at Vasquez, who hid behind a car. The shooter then got back into the car, and the car drove away. Just prior to the shooting, Vasquez had seen a blue or green Dodge parked on the street. Inside the car were three Hispanic males, two in the front and one in the rear. Vasquez described the shooter as a Hispanic male, average height, 130 to 140 pounds, 18 to 22 years old, and wearing a blue jersey, a blue hat, and prescription glasses with metal frames.
After the interviews, Detective Torres drove along the departure route taken by the Dodge, as described by the witnesses. He obtained a surveillance video from a market at the corner of 33rd Street and Compton. The video depicted a Dodge driving around the corner. Detective Torres captured still photographs of the car from the video. Both Cano and Carranza identified the car in the photograph as similar to the one that had fled the scene of the shooting.
Two days after the shooting, Detective Torres spotted a blue Dodge Intrepid parked in an alley near 41st and Central, which was within territory claimed by the 38th Street gang. Detective Torres conducted a traffic stop of the Dodge Intrepid. There were four persons in the car. Appellant was driving the car, and codefendant James Garcia was in the passenger seat. The vehicle was registered to appellant's mother, although appellant had received two traffic citations while driving the car in June 2007.
Appellant was arrested and taken to the police station. He admitted that he was a member of the 38th Street gang and stated that his monikers were "Baby Hewey" and "Night Owl." He claimed to belong to the Brown Pride Rifa clique of the gang and had numerous gang-related tattoos.
The police officers impounded the Dodge and conducted an inventory search. Detective Torres observed a shiny object in the center console area and a white plastic bag in the gear shift area. A narcotics dog alerted to the presence of narcotics, and the center console area was searched. Behind the controls for the thermostat and air conditioner and above the radio, Detective Torres recovered a .40-caliber Smith and Wesson semiautomatic handgun, which contained 13 live bullets. The shell casings found at the scene of the shooting were all determined to have been fired from this handgun. Directly beneath the gun was a plastic bag containing 13.01 grams of cocaine, which had a sales value of approximately $1,000. Inside the gear shift console, Detective Torres recovered two additional gun magazines which fit the handgun, ammunition for a nine-millimeter handgun and for a rifle, and $3,060 in cash inside a plastic bag.
A cellular telephone was found in the driver's area of the Dodge. When asked for his telephone number during the booking process, appellant gave a number which corresponded to the telephone found in the Dodge. According to telephone records, on the day of the shooting, the telephone received an incoming call at 1:53 p.m., which lasted three seconds, an incoming call at 2:56 p.m., which lasted six seconds, and an incoming call at 2:58 p.m., which lasted four seconds. All of the calls were routed through a cell tower located near Alameda and Vernon, which meant that the telephone was located within two miles of that intersection at the time of the call. This tower was located in the general vicinity of the shooting.
On August 21, 2007, Detective Torres showed Cano and Vasquez photographs of the car that had been searched by the police officers, which they both identified as similar to the car they had seen on the day of the shooting.
On August 22, 2007, Detective Torres interviewed Alvarez in the hospital. Alvarez stated that as he rode his scooter to Vasquez's house, he saw a blue or gray-green Dodge Intrepid. He later saw a man exit the vehicle and run toward him firing a gun. He heard someone say "38th Street Hood" or "38th Street." Alvarez described the shooter as a Hispanic male, 16 to 18 years old, wearing a blue hat. Alvarez identified photographs of the Dodge Intrepid that was searched by the police officers as similar to the car he saw on the day of the shooting. From a six-pack array of photographs, Alvarez identified a photograph of codefendant Garcia as the shooter.
An amended information charged appellant with possession of cocaine for sale, in violation of Health and Safety Code section 11351 (count 1), possession of a controlled substance while armed with a firearm, in violation of Health and Safety Code section 11370.1, subdivision (a) (count 2), attempted willful, deliberate and premeditated murder, in violation of Penal Code sections 664, 187, subdivision (a)
Appellant and codefendant Garcia were jointly tried by jury in August 2009. At the trial, Los Angeles Police Department Officer Gilberto Rendon testified as an expert on criminal street gangs. According to his testimony, as of 2007, the 38th Street gang had approximately 350 to 400 members. The gang's territory included 33rd Street to the north, 48th street to the south, Wadsworth to the west, and Alameda to the east. The gang's primary activities included murder, attempted murder, assault with a deadly weapon, robbery, narcotics sales, and graffiti. Members of the gang engaged in the sale of narcotics on a daily basis. The area of 33rd and Hooper, the site of the shooting, was abutted by the East Side Trece gang. As evidenced by the graffiti in the area, the 38th Street gang and the East Side Trece gang were not getting along in August 2007. The 33rd Street area where the shooting occurred was an area with a high potential for violence.
Officer Rendon opined that appellant was a member of the 38th Street gang based on his admissions and his numerous gang-related tattoos. He testified that he knew two 38th Street gang members who were convicted of qualifying predicate offenses. When given a set of hypothetical facts based on the evidence, Officer Rendon opined that the shooting was committed to benefit the gang and that the possession of cocaine for sale was committed for the benefit of, at the direction of, or in association with a criminal street gang with the specific intent to promote, further, or assist in criminal conduct by gang members.
Officer Rendon also testified that the alley where the Dodge Intrepid was stopped by Detective Torres was within the 38th Street gang's territory and explained that it was common for gang members to arm themselves while in the possession of narcotics to protect themselves from being "ripped off" and to let it be known that they carried guns and were willing to use them. Officer Rendon stated that "gangs sell narcotics for their gang to purchase more narcotics or to purchase weapons or to give money to their incarcerated gang members from that same gang." He believed that the presence of cash in the car supported his opinion that the narcotics were possessed for the benefit of, to promote, or to assist criminal conduct by gang members, as it demonstrated that the individual was currently involved in narcotics transactions.
The jury found appellant guilty of possession of cocaine for sale on count 1 and possession of a controlled substance with a firearm on count 2. The jury found the street gang allegations as to counts 1 and 2 and the allegation of the firearm as to count 1 to be true. Appellant was acquitted on counts 4 and 5. The trial court sentenced appellant to a total of 13 years in prison, comprised of the upper term of four years, a five-year enhancement for the firearm allegation and a four-year enhancement for the gang allegation on count 1. The court stayed the sentence on count 2 pursuant to section 654.
This appeal followed.
Appellant contends that (1) there was insufficient evidence to sustain the firearm enhancement on count 1; (2) there was insufficient evidence to sustain the conviction for possession of cocaine for sale while armed with a firearm on count 2; (3) there was insufficient evidence to sustain the gang enhancements on counts 1 and 2; (4) the trial court erred in instructing the jury on the elements of possession of cocaine for sale while armed with a firearm in count 2 because the instruction omitted the word "immediate"; (5) the trial court erred in instructing the jury on the elements of possession of cocaine for sale while armed with a firearm in count 2 because the instruction omitted the word "knowingly"; (6) the trial court erred by selecting the upper term for the firearm and gang enhancements on counts 1 and 2 without submitting the determination to the jury; (7) the trial court erred by failing to provide a statement of reasons for its imposition of the upper term sentences on the gang and firearm enhancements on count 1; and (8) the trial court erred when it calculated his presentence conduct credits.
Appellant argues that there was insufficient evidence to sustain (1) the firearm enhancement on count 1; (2) his conviction for possession of cocaine for sale while armed with a firearm on count 2; and (3) the gang enhancements on count 1 and 2. We disagree.
"In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]" (People v. Bolin (1998) 18 Cal.4th 297, 331.) We resolve all conflicts in the evidence and questions of credibility in favor of the verdict and indulge every reasonable inference the jury could draw from the evidence. (People v. Autry (1995) 37 Cal.App.4th 351, 358.) Reversal on this ground is unwarranted unless `"upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].'" (People v. Bolin, supra, at p. 331.) "`[T]he appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.' [Citation.] This standard applies whether direct or circumstantial evidence is involved." (People v. Catlin (2001) 26 Cal.4th 81, 139.)
Appellant challenges the sufficiency of the evidence supporting the jury's finding that he was "personally armed with a firearm in the commission of a violation . . . of Section 11351 . . . of the Health and Safety Code" under section 12022, subdivision (c). An individual is personally armed if he is carrying the firearm or has it available for offensive or defensive use. (See People v. Mendival (1992) 2 Cal.App.4th 562, 573; accord, People v. Bland (1995) 10 Cal.4th 991, 997 (Bland) [using the same definition for "armed" within the meaning of Health and Safety Code section 12022, subdivision (a)(1)].) Appellant contends that the handgun was not available for use because it was hidden behind the car's central console.
"[F]or a defendant to be `armed' for purposes of section 12022's additional penalties, the defendant need only have a weapon available for use to further the commission of the underlying felony." (Bland, supra, 10 Cal.4th at p. 999.) "[W]hen the prosecution has proved a charge of felony drug possession, and the evidence at trial shows that a firearm was found in close proximity to the illegal drugs in a place frequented by the defendant, a jury may reasonably infer: (1) that the defendant knew of the firearm's presence; (2) that its presence together with the drugs was not accidental or coincidental; and (3) that, at some point during the period of illegal drug possession, the defendant had the firearm close at hand and thus available for immediate use to aid in the drug offense. These reasonable inferences, if not refuted by defense evidence, are sufficient to warrant a determination that the defendant was `armed with a firearm in the commission' of a felony within the meaning of section 12022." (Id. at p. 995.)
In Bland, police officers searching the defendant's house found 17.95 grams of rock cocaine in the defendant's bedroom closet. (Bland, supra, 10 Cal.4th at p. 995.) They also found a cache of unloaded firearms under the bed. (Ibid.) During the search, the defendant was outside in a police car. (Ibid.) The Court of Appeal struck the defendant's enhancement under section 12022 because "`there was no way defendant could have "reached"'" the weapons inside the house. (Bland, supra, at p. 996.)
Contrasting arming with use of a firearm, Bland explained that, "[a] defendant is armed if the defendant has the specified weapon available for use, either offensively or defensively. [Citations.]" (Bland, supra, 10 Cal.4th at p. 997.) Moreover, "[d]rug possession is . . . a `continuing' offense, one that extends through time. Thus, throughout the entire time the defendant asserts dominion and control over illegal drugs, the defendant is criminally liable for the drug possession. [Citations.] And when, at any time during the commission of the felony drug possession, the defendant can resort to a firearm to further that offense, the defendant satisfies the statutory language of being `armed with a firearm in the commission . . . of a felony.' [Citation.]" (Id. at p. 999, italics added.)
In this case, the evidence showed that a loaded handgun was stored in the central console of the car that appellant was driving and it was placed directly on top of the cocaine. Therefore, during the commission of the drug possession, appellant was "physically present with both the drugs and the weapon, giving him ready access to the [firearm] to aid his commission of the drug offense." (Bland, supra, 10 Cal.4th at p. 1000.) The Bland court pointed out that the Court of Appeal had focused wrongly on the defendant's distant physical relationship to the firearm at the time the police entered the house. (Id. at p. 1001.) In appellant's case, the handgun's location behind the central console does not mean that the gun, which was fully loaded, was not more accessible at times during appellant's continuing offense of drug sales, especially because the console was easily removed. Appellant may have kept the gun in a more visible spot during his drug transactions. The Legislature enacted Health and Safety Code section 12022 to "`deter persons from creating a potential for death or injury resulting from the very presence of a firearm at the scene of a crime.'" (Bland, supra, at p. 996; see also People v. Garcia (1986) 183 Cal.App.3d 335, 350.) In People v. Searle (1989) 213 Cal.App.3d 1091, 1095, 1099, for example, the defendant's gun was deemed to be available for use when he sold drugs from his car and kept a gun in a compartment in the back of the car.
"[A] true finding under section 12022, subdivision (c), requires proof the defendant personally had a firearm `at the ready.'" (People v. Gonzales (1992) 8 Cal.App.4th 1658, 1663.) Under the circumstances of this case, the handgun appellant had in the car was "at the ready" to further the commission of the underlying felony. Thus, we conclude that substantial evidence supported the jury's finding on the firearm enhancement on count 1.
Appellant contends that there was insufficient evidence to support his conviction for possession of cocaine for sale while armed with a firearm under Health and Safety Code section 11370.1 in count 2. The phrase "armed with" is statutorily defined as "having available for immediate offensive or defensive use." (Health & Saf. Code, § 11370.1, subd. (a).) Appellant argues that because the firearm was concealed behind the console, it could have not been available for immediate offensive or defensive use.
Although Bland, supra, 10 Cal.4th at pp. 997, 999, addressed a different statute, the same reasoning applies here. As stated in Bland, the possession of drugs constitute a continuing offense, and if the prosecution shows that a firearm was found "in close proximity to the illegal drugs in a place frequented by the defendant," the jury may reasonably infer that the defendant had the firearm close at hand and available for immediate use at some point during the time he possessed the narcotics. (Id. at p. 995.)
We conclude that for the reasoning set forth in section I.A., ante, appellant was armed with the handgun because it was available for immediate offensive or defensive use. Testimony and photographs established that the loaded handgun was directly on top of the cocaine in the central console of the car that appellant was driving. According to Detective Torres's testimony, the console was easily removed to reveal the handgun. Because the jury could have found that the handgun was in a location in which it could be quickly obtained and put to immediate use, we find that there was sufficient evidence to support this conviction.
Appellant argues that there was insufficient evidence to support the gang enhancement under section 186.22, subdivision (b)(1), on counts 1 and 2. Section 186.22, subdivision (b)(1), has two prongs, both of which the prosecution must prove: (1) The crime was committed for the benefit of, at the direction of, or in association with any criminal street gang; and (2) the crime was committed with the specific intent to promote, further, or assist in any criminal conduct by gang members. (People v. Villalobos (2006) 145 Cal.App.4th 310, 322.) Appellant challenges the second prong.
Appellant argues that the prosecution relied solely on the gang expert's testimony, which should be discounted because it was based exclusively on hypothetical situations and did not provide any direct or circumstantial evidence of appellant's intent. There is no rule that only direct evidence may support a judgment. (See People v. Stanley (1995) 10 Cal.4th 764, 792-793.) A gang finding may be based upon circumstantial evidence, and "[i]t is well settled that expert testimony about gang culture and habits is the type of evidence a jury may rely on to reach a verdict on a gang-related offense or a finding on a gang allegation. [Citation.]" (People v. Ferraez (2003) 112 Cal.App.4th 925, 930.) "[A]n expert may render opinion testimony on the basis of facts given `in a hypothetical question that asks the expert to assume their truth.' [Citation.] Such a hypothetical question must be rooted in facts shown by the evidence, however." (People v. Gardeley (1996) 14 Cal.4th 605, 618.)
When Officer Rendon testified that the crimes were committed with the specific intent to promote, further, or assist in any criminal conduct by gang members, he based his opinion on the facts of the case—appellant was in the car with the narcotics; he was armed to protect himself from getting "ripped off" and to intimidate others; he had cash which indicates that he was currently involved in narcotics transactions; one of the primary activities of the 38th Street gang was narcotics sales, which they engaged in on a daily basis; narcotics sales were used to protect and expand the gang's territory, to purchase more narcotics, to purchase weapons, or to give money to their incarcerated gang members; and the alley in which the car was stopped was in 38th Street gang territory.
Contrary to appellant's claim, Officer Rendon's testimony was supported by a sufficient evidentiary foundation and was bolstered by the fact that appellant acted with other known gang members. "[I]f substantial evidence establishes that the defendant intended to and did commit the charged felony with known members of a gang, the jury may fairly infer that the defendant had the specific intent to promote, further, or assist criminal conduct by those gang members." (People v. Albillar (2010) 51 Cal.4th 47, 68; People v. Villalobos, supra, 145 Cal.App.4th at p. 322 ["Commission of a crime in concert with known gang members is substantial evidence which supports the inference that the defendant acted with the specific intent to promote, further or assist gang members in the commission of the crime"].)
When appellant was arrested, he admitted that he was a member of the 38th Street gang and stated that his monikers were "Baby Hewey" and "Night Owl." He claimed to belong to the Brown Pride Rifa clique of the gang and had numerous gang-related tattoos. His codefendant Garcia, who was in the car with appellant, admitted that he was a recent inductee into the Brown Pride Rifa clique of the 38th Street gang. The car was spotted in an alley near 41st and Central, which was within territory claimed by the 38th Street gang. Given their admissions, their monikers, and their commission of crimes together in gang territory, it is unlikely that either was ignorant of the other's membership in the gang.
Appellant's reliance on In re Frank S. (2006) 141 Cal.App.4th 1192 (Frank S.) is misplaced. In that case, the defendant was stopped for a traffic violation on his bicycle carrying a dagger. He argued that there was insufficient evidence that he was carrying the dagger for the benefit of the gang with the specific intent to promote, further, or assist criminal gang behavior. (Id. at pp.1194-1195.) The court reversed the gang enhancement for insufficient evidence because "[t]he prosecution did not present any evidence that the minor was in gang territory, had gang members with him, or had any reason to expect to use the knife in a gang-related offense." (Id. at p.1199.) "[A]ppellant's criminal history and gang affiliations cannot solely support a finding that a crime is gang-related under section 186.22." (Ibid.) The court faulted the trial court for permitting the use of such expert testimony as proof of the defendant's specific intent in the case because an expert may not properly testify to the defendant's subjective knowledge and intent. (Id. at pp. 1197-1198.)
This case is distinguishable from Frank S. because of the abundant circumstantial evidence of appellant's conduct and specific intent. Appellant's intention to promote, further, or assist in criminal conduct by gang members is not established solely by his gang affiliation and criminal record as in Frank S. but by a record replete with facts establishing his participation in what was a gang endeavor.
Viewing the evidence in the light most favorable to the verdict, we are satisfied that substantial evidence supports the jury's true finding on the gang enhancements on counts 1 and 2.
Appellant argues that the trial court erred in instructing the jury on the elements of possession of cocaine for sale while armed with a firearm in count 2. The jury was provided with CALJIC No. 12.52, which stated that "`[a]rmed with' means knowingly to carry a firearm or have it available for offensive or defensive use." Appellant contends that the instruction was deficient because it did not inform the jury: (1) that the firearm must be available for immediate offensive or defensive use; and (2) that he possessed the cocaine while knowingly armed with a firearm.
When a criminal defendant contends an ambiguous or potentially misleading instruction violated his federal constitutional right to a trial by jury, an appellate court must view a challenged portion "in the context of the instructions as a whole and the trial record" to determine "`whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way' that violates the Constitution. [Citation.]" (Estelle v. McGuire (1991) 502 U.S. 62, 72; see also Jones v. United States (1999) 527 U.S. 373, 390; People v. Smithey (1999) 20 Cal.4th 936, 963; People v. Frye (1998) 18 Cal.4th 894, 957, disapproved on another point in People v. Doolin (2009) 45 Cal.4th 390, 431.)
Failure to object to instructional error forfeits the objection on appeal unless the appellant's substantial rights are affected. (§ 1259; People v. Rodrigues (1994) 8 Cal.4th 1060, 1192-1993.) "[S]ubstantial rights" are equated with error resulting in a miscarriage of justice under People v. Watson (1956) 46 Cal.2d 818. (People v. Arredondo (1975) 52 Cal.App.3d 973, 978.) Appellant did not object to the challenged instruction at the trial. Assuming, without deciding, that the challenged instruction affects appellant's substantial rights, we turn to the merits of his claims on appeal.
Health and Safety Code section 11370.1 provides that "`armed with' means having available for immediate offensive or defensive use." Because CALJIC No. 12.52 omitted the word "immediate," appellant contends that the error requires reversal of the conviction. We disagree.
As discussed above in section I.B., ante, of this opinion, well-settled case law has determined that if a firearm was found "in close proximity to the illegal drugs in a place frequented by the defendant," the jury may reasonably infer that the defendant had the firearm close at hand and available for immediate use at some point during the time he possessed the narcotics. (Bland, supra, 10 Cal.4th at p. 995.) Thus, it was not reasonably likely that the omission of the word "immediate" caused the jury to misunderstand the relevant principles of law. The instruction was sufficient for the jury to have found that appellant was armed within the meaning of Health and Safety Code section 11370.1. Moreover, as discussed in section I.B. of this opinion, the evidence at trial sufficiently established that the handgun was available to appellant for immediate use.
In any event, we find any error to have been harmless beyond a reasonable doubt. Generally, an instructional error that removes an element of an offense from a jury's consideration is not deemed a structural defect in the trial mechanism and is not automatically reversible. (People v. Flood (1998) 18 Cal.4th 470, 497, 502-503.) Rather, the error is subject to a harmless error analysis and would be reversible "unless it can be shown `beyond a reasonable doubt' that the error did not contribute to the jury's verdict." (People v. Sengpadychith (2001) 26 Cal.4th 316, 326, citing Chapman v. California (1967) 386 U.S. 18, 24.) Based on all of the evidence at trial relevant to this issue, there was no rational basis upon which the instructional error could have affected the jury's verdict. (People v. Flood, supra, at pp. 504, 505.)
Relying on People v. Singh (2004) 119 Cal.App.4th 905, 912 (Singh), appellant contends that CALJIC No. 12.52 failed to advise the jury that it was required to find that he possessed cocaine while knowingly armed with a firearm. In Singh, the court observed that CALJIC No. 12.52 omitted a knowledge requirement and urged the CALJIC committee to revise the instruction to include it. (Singh, supra, at p. 912.) CALJIC No. 12.52 was then revised in response to Singh.
Here, the jury was instructed with the revised version of CALJIC No. 12.52 which contained the knowledge requirement. The instruction provided: "`Armed with' means knowingly to carry a firearm . . . ." (Italics added.) Thus, we find no merit to appellant's argument.
Appellant contends that under Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) and its progeny, it was up to the jury, and not the trial court, to determine the aggravating factors used to justify the upper term for the firearm and gang enhancements imposed on counts 1 and 2.
In Apprendi, supra, 530 U.S. at p. 490, the United States Supreme Court held that "[o]ther than the fact of 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." In Blakely v. Washington (2004) 542 U.S. 296, 303 (Blakely), the Supreme Court explained that the "`statutory maximum'" referred to in Apprendi 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.
In Cunningham v. California (2007) 549 U.S. 270 (Cunningham), the Supreme Court applied Apprendi and Blakely to California's then existing determinate sentencing law (DSL) (former § 1170, subd. (b)), which provided that "`the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime.'" (Stats. 2004, ch. 747, § 3; Cunningham, supra, at p. 277.) The Supreme Court held that by "assign[ing] to the trial judge, not to the jury, authority to find the facts that expose a defendant to an elevated `upper term' sentence," California's DSL "violate[d] a defendant's right to trial by jury safeguarded by the Sixth and Fourteenth Amendments." (Cunningham, supra, at p. 274.)
In response to Cunningham, the Legislature remedied the constitutional infirmities of California's DSL by amending section 1170 effective March 30, 2007. (Stats. 2007, ch. 3, § 2; see People v. Sandoval (2007) 41 Cal.4th 825, 836, fn. 2 (Sandoval).) The amended section 1170 now provides that: (1) the middle term is no longer the presumptive term absent aggravating or mitigating facts found by the trial judge; and (2) a trial judge has the discretion to impose an upper, middle or lower term based on reasons he or she states. Section 1170 now states in pertinent part: "When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court. . . . The court shall select the term which, in the court's discretion, best serves the interests of justice. The court shall set forth on the record the reasons for imposing the term selected . . . ." (§ 1170, subd. (b).)
The Legislature did not amend section 1170. 1, which governs additional terms and enhancements, to comply with Cunningham until October 11, 2009. On September 25, 2009, the date appellant was sentenced, section 1170.1 read in relevant part: "If an enhancement is punishable by one of three terms, the court shall impose the middle term unless there are circumstances in aggravation or mitigation, and state the reasons for its sentence choice, other than the middle term, on the record at the time of sentencing. . . ." (Former § 1170.1, subd. (d).)
At the time of appellant's sentencing, the statutory maximum for the firearm enhancement under section 12022, subdivision (c), was the presumptive middle term of four years, and the statutory maximum for the gang enhancement under section 186.22, subdivision (b)(1)(A), was the presumptive middle term of three years.
At the sentencing hearing, the court also handled two of appellant's other pending cases. Appellant entered a guilty plea to a felony charge of possessing a weapon while in county jail. The court found that appellant had committed a violation of probation on his prior grand theft auto case, based on his convictions in the instant case and his plea in the possession of a weapon case.
A trial court can impose an upper term based on its own determination that the appellant served prior prison terms or was on probation or parole at the time of the offense. (People v. Towne (2008) 44 Cal.4th 63, 79-82.) This is a factor related to recidivism that need not be found by the jury. (People v. Black (2007) 41 Cal.4th 799, 816, 818.) An upper term sentence based on at least one aggravating circumstance complying with Cunningham renders a "defendant eligible for the upper term sentence," (People v. Black, supra, at p. 818) so that "any additional fact finding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant's right to jury trial." (Id. at p. 812.) Here, the trial court found that appellant was on probation at the time this crime was committed and noted that appellant had not taken his grant of probation seriously. Thus, the trial court did not err because it based the imposition of the upper terms for the firearm and gang enhancements on appellant's recidivism.
In any event, we agree with respondent that any error was harmless. (Sandoval, supra, 41 Cal.4th at p. 839 ["[I]f a reviewing court concludes, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury, the Sixth Amendment error properly may be found harmless"].) Here, it was undisputed that appellant was on probation at the time of the current offense. Thus, the jury would have found appellant's recidivism true beyond a reasonable doubt.
Appellant argues that the case must be remanded to allow the trial court to provide a statement of reasons for its imposition of the upper term sentences on the gang and firearm enhancements. Appellant has forfeited this argument by his failure to object below. (People v. Scott (1994) 9 Cal.4th 331, 356; People v. Mustafaa (1994) 22 Cal.App.4th 1305, 1310-1311; People v. Neal (1993) 19 Cal.App.4th 1114, 1124.) Moreover, the court provided reasons in support of the upper term sentence on count 1, which were applicable to the enhancements as well. It stated that: "And although he was not convicted for the attempted murder offenses, that gun was utilized and he's running around with a loaded firearm in his vehicle, with a large amount of drugs and money, and he's a gang member. And the jury found that the crimes were committed for the benefit of a street gang. I feel the high term is appropriate." Thus, remand is unnecessary.
Section 4019 provides that a criminal defendant may earn additional presentence credit for willingness to perform assigned labor (§ 4019, subd. (b)) and compliance with rules and regulations (§ 4019, subd. (c)). These forms of presentence credit are collectively called "conduct credit." (People v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3.) On January 25, 2010, section 4019 (Stats. 2009, ch. 28, § 50 (Sen. Bill No. 18)) was amended to increase the presentence conduct credits to which a defendant is entitled.
Appellant committed the instant offenses in 2007 and was convicted by jury and sentenced in 2009. Because section 4019 was amended while this matter was pending on appeal, appellant contends that he is entitled to the additional conduct credits provided in the amended version. He argues that the amendment applies retroactively to all cases not yet final on appeal as of January 25, 2010, when the new statute became effective. Absent a savings clause, a criminal defendant is entitled to the benefit of a change in the law during the pendency of his appeal. But because the calculation of conduct credits is the same under the original version and the amended version with respect to appellant, we need not reach the retroactivity issue.
Though the amended version of section 4019 changed the formula for the calculation of conduct credits in general, it designated certain persons as ineligible for the increased credit. Among those deemed ineligible were persons who had committed a serious felony as defined in section 1192.7. (§ 4019, subds. (b)(2) &(c)(2); Stats. 2009-2010, 3d Ex.Sess., ch. 28, § 50.) Here, the jury found true the criminal street gang enhancement allegations, pursuant to section 186.22. Section 1192.7(c)(28) provides that any felony offense, which would also constitute a felony violation of section 186.22, is a serious felony. The California Supreme Court in People v. Briceno (2004) 34 Cal.4th 451, 456, 458, clarified that section 1192.7(c)(28) includes gang enhancements as well as substantive gang offenses. Because appellant was convicted of a serious felony within the meaning of section 1192.7, his calculation of conduct credits remains unchanged even under the amended version of section 4019.
Thus, the calculation would be as follows: number of actual custody days divided by four, discarding any remainder, the result of which is then multiplied by two. Appellant spent 771 actual days in custody. Dividing 771 by four and discarding the remainder results in 192. Multiplying 192 by two results in 384 days of conduct credit. Appellant was thus entitled to 771 days of actual custody credit and 384 days of conduct credit, for a total of 1,155 days. The trial court erred in awarding him 385 days of conduct credit, for a total of 1,156 days, and the abstract of judgment should be corrected accordingly.
The trial court is ordered to correct the abstract of judgment to state that the gang allegation was found true under section 186.22(b)(1)(A), to strike any reference to section 186.22(b)(1)(C), and to correct the award of presentence custody credit from 1,156 days (771 days of actual custody credit and 385 days of conduct credit) to 1,155 days (771 days of actual custody and 384 days of conduct credit). The trial court shall forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur.
ASHMANN-GERST, J.
CHAVEZ, J.
