Opinion
NOT TO BE PUBLISHED
Sup.Ct. No. 04F04646
MORRISON, Judge.
Defendant Toussainte Buitrago was found guilty by a jury of robbery and evading a peace officer (Pen. Code, § 2800.2, subd. (a)). The jury also found he had personally used a firearm during the robbery (Pen. Code, § 12022.53, subd. (b)). The trial court revoked defendant’s probation in a separate case and sentenced him to an aggregate term of 15 years 8 months in state prison.
On appeal, defendant contends (1) counsel rendered ineffective assistance at trial by failing to secure and present certain evidence, and (2) the trial court erred in refusing to instruct the jury on the one-year gun use enhancement for being armed with a firearm as a lesser enhancement than that for personal use of a firearm. In a supplemental brief, defendant also contends his upper term sentence violated the rule of Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely), and Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi). We affirm.
BACKGROUND
On the night of May 24, 2004, the victim, Omari White, went to the Liquor Tree store in Sacramento. As White was returning to his car, a man, later identified as defendant, got his attention and asked if he had a lighter. White was opening his car door and reaching for his lighter when defendant pulled out a black semi-automatic handgun. Defendant cocked the gun, pointed it at White’s face, and demanded White give him “everything.” White complied, giving defendant his money. White believed defendant was wearing gloves.
While defendant continued to hold the gun on White, defendant unlocked the passenger door for an unidentified accomplice. The accomplice looked through White’s car and took White’s cell phone from the passenger seat. Defendant and his accomplice then got into a nearby Camaro and drove away, with defendant driving.
White got in his car and followed defendant. After following defendant as defendant turned onto several different streets, defendant pulled over. At this point, White got the attention of California Highway Patrol Officers Comphel and Bradley. White told the officers defendant had just robbed him and the officers immediately began pursuing defendant’s Camaro.
Defendant lead the officers on a high speed chase, crossing a median, running red lights, and reaching speeds of up to 100 miles per hour. The officers briefly lost sight of the Camaro but found it stopped in a nearby field. As the officers began searching the neighborhood for defendant and his passenger, a resident reported a man had run into his bushes. When the officers saw defendant, he attempted to run but tripped and fell to the ground.
In defendant’s pockets, officers found a scale, some marijuana, White’s cell phone, and some cash. Officers found a black semi-automatic handgun on the floorboard on the driver’s side of the Camaro. The handgun was loaded with a round in the chamber.
White was brought to the area where defendant was apprehended. White immediately identified defendant as the person who robbed him. White also identified another individual as the accomplice but that person was later released. White had never seen defendant before the night of the robbery.
Defendant testified in his own defense at trial. He testified he was a marijuana dealer and regularly sold marijuana to White. He had spoken with White earlier that evening and planned on meeting him at the Liquor Tree store to sell White marijuana. Before going to the Liquor Tree, however, defendant stopped at the apartment building across the street to sell marijuana to several individuals, including Eric Cisco. While at the apartment complex, he met up with an acquaintance named “T-Nut.” He and T-Nut drove over to the Liquor Tree and parked in the lot. When White came over, T-Nut got out of the car and White got in. White purchased $30 of marijuana, which they weighed on the scale. White left and T-Nut returned. Defendant asked T-Nut to buy some “blunts” while defendant counted his money. After T-Nut returned and they drove away, he noticed White following behind him and flashing his lights. Defendant asked T-Nut if he had a cell phone so he could call White and ask what he wanted. T-Nut then told defendant he had just robbed White. Defendant was angry with T-Nut and took White’s cell phone from him with the intention of returning White’s belongings. Defendant then saw White flag down the patrol officers. At this point, defendant drove toward his home with the officers in pursuit. While driving he threw the marijuana out the window. When he hit a curb and ended up in a field, he and T-Nut both got out on the driver’s side and fled on foot. He never saw the gun that was found in his car.
DISCUSSION
I
Effectiveness of Trial Counsel
Defendant claims he received ineffective assistance of trial counsel. He claims counsel was ineffective for failing to locate some acquaintances and have them testify that defendant knew the victim prior to the robbery. He argues that, if these acquaintances had testified, it would have supported defendant’s version of the events. Defendant also claims counsel was ineffective for failing to have the firearm fingerprinted, because if the firearm had T-Nut’s prints, and not defendant’s, it would have corroborated defendant’s testimony. Finally, defendant claims counsel was ineffective for failing to have the scale fingerprinted because, if the scale had the victim’s prints, it would have established the victim was being untruthful and corroborated defendant’s testimony. Defendant has failed to establish ineffective assistance of counsel.
It appears from the record that these individuals are Eric Cisco, “Chris,” and “K” or “Kevin.” At the time of trial, defendant did not know Chris’s or Kevin’s last names, where they lived, or how to get in contact with them.
To establish ineffective assistance of counsel, defendant must show that his trial attorney’s performance was deficient and that defendant suffered prejudice as a result. (Strickland v. Washington (1984) 466 U.S. 668, 687, 689, 691-692 [80 L.Ed.2d 674, 693, 694, 696]; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) In order to demonstrate that counsel failed to investigate the case adequately, defendant must produce the evidence that further investigation would have produced. A claim unsupported by evidence is insufficient to determine whether it is reasonably probable that defendant would have obtained a more favorable result with adequate investigation. (See People v. McDermott (2002) 28 Cal.4th 946, 992; In re Marquez (1992) 1 Cal.4th 584, 603-609; In re Fields (1990) 51 Cal.3d 1063, 1071.) The proof must be a “‘demonstrable reality,’” and not a speculative matter. He “must establish the nature and relevance of the evidence that counsel failed to present or discover.” (People v. Williams (1988) 44 Cal.3d 883, 937; see also People v. Jackson (1980) 28 Cal.3d 264, 289, disapproved on another ground in People v. Cromer (2001) 24 Cal.4th 889, 901, fn. 3.)
With respect to defendant’s claim that counsel was ineffective for failing to locate certain witnesses and call them to testify, defendant has failed to demonstrate that the testimony of such witnesses would have assisted his defense. Based on this record, this court does not know what the witnesses would or would not have said. That being the case, it is uncertain what effect their testimony would have had on the case. Mere conjecture is not adequate to establish a prejudicial effect on the defense. Therefore, without an affirmative showing of prejudice, defendant’s assertion of ineffective assistance of counsel fails.
Defendant’s claim that counsel was ineffective for failing to have the firearm and scale fingerprinted is also based on conjecture and speculation. Because defendant has not shown what further investigation (fingerprinting) would have produced, he has failed to show that defense counsel was ineffective, or that defendant suffered any prejudice. (People v. McDermott, supra, 28 Cal.4th at p. 991; In re Marquez, supra, 1 Cal.4th at p. 606.)
II
Section 12022 Jury Instruction
Defendant contends the trial court prejudicially erred in failing to instruct the jury that being armed with a firearm within the meaning of section 12022, subdivision (a), is a lesser included enhancement within the personal use of a firearm enhancement described in section 12022.53. We disagree.
Section 12022.53 prohibits personal use of a firearm during enumerated crimes, one of which is robbery, and imposes a 10-year enhancement therefor. Section 12022, subdivision (a), prohibits being armed, even vicariously, with a firearm during the commission of a felony, and imposes a one-year penalty. Defendant’s theory is that a jury may have believed that it was T-Nut, not defendant, who was personally armed with the firearm, but that both defendant and T-Nut were principals in the commission of the robbery. Under this theory, defendant would be criminally liable for being armed, vicariously, with the firearm under section 12022, subdivision (a), without having personally used the firearm under section 12022.53, subdivision (b). He argues that had the jury been given the chance to find true the lesser firearm enhancement, it might have done so and he would have received a shorter sentence.
Assuming, without deciding, that a defense requested instruction on a “lesser included enhancement” would be proper in an appropriate case--a matter undecided by the California Supreme Court--there are two problems with defendant’s argument. First, as the trial court stated, the evidence simply did not support an instruction on defendant being vicariously armed with a firearm. According to defendant’s version of the robbery, he was completely uninvolved in the robbery and neither saw nor touched a firearm throughout the incident. If the jury had believed defendant’s version, they would not have found even the proposed vicarious arming allegation true with an instruction on 12022, subdivision (a). Thus, the trial court had no obligation to so instruct the jury. (See People v. Breverman (1998) 19 Cal.4th 142, 162 [instruction only justified when there is substantial evidence of a lesser offense].)
In People v. Majors (1998) 18 Cal.4th 385, the California Supreme Court explained that “lesser included enhancements” do not raise the same concerns as lesser included offenses and rejected the contention that a trial court has a sua sponte duty to instruct on lesser included enhancements. The court stated, “One of the primary reasons for requiring instructions on lesser included offenses is ‘“to eliminate the distortion of the factfinding process that is created when the jury is forced into an all-or-nothing choice between [guilt] and innocence”’--that is, to eliminate ‘“the risk that the jury will convict . . . simply to avoid setting the defendant free.”’ [Citation.] This risk is wholly absent with respect to enhancements, which a jury does not even consider unless it has already convicted defendant of the underlying substantive offenses. (See generally, People v. Wims (1995) 10 Cal.4th 293, 307 , fn. omitted [‘[A] sentence enhancement is not equivalent to a substantive offense, because a defendant is not at risk for punishment under an enhancement allegation until convicted of a related substantive offense. [Citation.] At that time, a defendant’s liberty interest “has been substantially diminished by a guilty verdict.” [Citation.] The Legislature, moreover, has in various ways expressed its intention that enhancements not be treated as substantive offenses.’].) Under these circumstances, we hold that a trial court’s sua sponte obligation to instruct on lesser included offenses does not encompass an obligation to instruct on ‘lesser included enhancements.’” (Id. at pp. 410-411.) In so holding, the California Supreme Court did not state whether instruction on a lesser included enhancement would be proper, in an appropriate case, if requested by the defendant.
Second, the jury was explicitly instructed in this case that personally using a firearm meant defendant intentionally displayed a firearm in a menacing manner, fired it, or hit or struck someone with it. So, if the jury had believed defendant did not personally use the firearm, they would not have found the personal use of a firearm allegation true. Their contrary finding precludes the possibility they believed that T-Nut, not defendant, used the firearm and renders moot the failure to instruct on being vicariously armed with, but not personally using, the firearm. (People v. Seaton (2001) 26 Cal.4th 598, 665, 669 [no prejudice where jury necessarily rejected the defense theory].)
III
Blakely
The trial court specifically cited as the sole basis for imposing the upper term that defendant was on probation when the crime was committed. Defendant contends that imposition of the upper term violated the Sixth Amendment of the United States Constitution as interpreted in Apprendi, supra, 530 U.S. 466 [147 L.Ed.2d 435], and Blakely, supra, 542 U.S. 296 [159 L.Ed.2d 403]. We reject his contention.
In Apprendi, 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.” (Apprendi, supra, 530 U.S. at p. 490 [147 L.Ed.2d at p. 455].) For this purpose, the statutory maximum is the maximum sentence that a court could impose based solely on facts reflected by a jury’s verdict or admitted by the defendant. Thus, when a sentencing court’s authority to impose an enhanced sentence depends upon additional factfindings, there is a right to a jury trial and proof beyond a reasonable doubt on the additional facts. (Blakely, supra, 542 U.S. at pp. 303-305 [159 L.Ed.2d at pp. 413-414].)
In Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham), the United States 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 determinate sentencing law “violates a defendant’s right to trial by jury safeguarded by the Sixth and Fourteenth Amendments.” (Id. at p. ___ [166 L.Ed.2d at p. 864], disapproving People v. Black (2005) 35 Cal.4th 1238 on this point, vacated in Black v. California (Feb. 20, 2007) ___ U.S. ___ [167 L.Ed.2d 36].)
As a preliminary matter, the People argue defendant forfeited his claim by failing to object at trial. We agree. Defendant was sentenced on June 3, 2005. Blakely had been decided one year earlier and the California Supreme Court had not yet decided Black, supra, 35 Cal.4th 1238, which held that a defendant does not have a right to have a jury determine aggravating factors used to impose the upper term. (Id. at p. 1244 [decided June 20, 2005].) Indeed, trial court specifically stated it was utilizing defendant’s probation status as an aggravating factor because it was acceptable under Blakely. Defendant made no objection.
“‘An appellate court will ordinarily not consider procedural defects or erroneous rulings, in connection with relief sought or defenses asserted, where an objection could have been but was not presented to the lower court by some appropriate method . . . . The circumstances may involve such intentional acts or acquiescence as to be appropriately classified under the headings of estoppel or waiver . . . . Often, however, the explanation is simply that it is unfair to the trial judge and to the adverse party to take advantage of an error on appeal when it could easily have been corrected at the trial.’” (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184-185, fn. 1, italics in Doers.) “‘The purpose of the [forfeiture] doctrine . . . is to encourage a defendant to bring errors to the attention of the trial court, so that they may be corrected or avoided and a fair trial had . . . .’” (People v. Walker (1991) 54 Cal.3d 1013, 1023.) “‘“No procedural principle is more familiar to this Court than that a constitutional right,” or a right of any other sort, “may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.” [Citation.]’ (United States v. Olano (1993) [507 U.S. 725, 731 [123 L.Ed.2d 508, 517, 113 S.Ct. 1770].)” (People v. Saunders (1993) 5 Cal.4th 580, 589-590, fn. omitted; see also People v. Scott (1994) 9 Cal.4th 331, 353 [concluding the “waiver doctrine” applies “to claims involving the trial court’s failure to properly make or articulate its discretionary sentencing choices”].)
Here, defendant did not object at sentencing to the court’s reliance on the fact that he was on probation at the time of the offense, even though the trial court specifically mentioned the issue of whether that was an appropriate factor to consider in light of Blakely, supra, 542 U.S. 296 [159 L.Ed.2d 403]. We cannot say such an objection would have been futile since he was sentenced after Blakely and after the California Supreme Court had granted review in Black, but 17 days before the court issued its decision in Black.
By failing to interpose a Blakely objection at his sentencing--after Blakely was decided and after review was granted in Black and where no decision in Black had been issued--defendant forfeited his Blakely claim on appeal.
Moreover, defendant waived any right he may have had to have the jury decide whether he was on probation at the time he committed the current offense. At the commencement of the sentencing hearing, the trial court addressed defendant’s probation status. The trial court noted that there had not yet been an admission or hearing as to the probation violation in case No. 01F02371. Defense counsel agreed with that statement and suggested the matter be submitted to the court since defendant had just been convicted in case No. 04F04646.
The trial court then explained to defendant that he was entitled to a hearing and that, by submitting it to the court on the record before the court, the court “would take judicial notice of your conviction and the fact that you were on felony probation at the time you committed the offenses for which you were convicted.” After discussion with his counsel, defendant submitted the matter to the trial court. The trial court then found him in violation of his probation by virtue of having committed the offenses in case No. 04F04646 in violation of the condition of his probation in case No. 01F02371 that he obey all laws. The trial court revoked defendant’s probation and sentenced defendant to state prison in both cases.
A defendant may waive his rights under Apprendi, supra, 530 U.S. 466 [147 L.Ed.2d 435] by either stipulating to the relevant facts or consenting to judicial factfinding. (Blakely, supra, 542 U.S. at p. 310 [159 L.Ed.2d at pp. 417-418].) Here, defendant implicitly admitted his status as a probationer by acquiescing, without objection, to the adjudication of the alleged probation violation in case No. 01F02371 in conjunction with the sentencing on the current offenses. Indeed, he specifically consented to the trial court taking judicial notice of the fact that he was on probation. The trial court then explicitly found defendant was on probation at the time of the offense in adjudicating the probation violation allegation in case No. 01F02371. There was no Blakely error when the court later considered that fact in determining the appropriate term.
DISPOSITION
The judgment is affirmed.
We concur: SCOTLAND, P.J. and ROBIE, J.