Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA206968, Anita H. Dymant, Judge.
Alan Siraco, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels and Carl N. Henry, Deputy Attorneys General, for Plaintiff and Respondent.
ZELON, J.
In this third appeal arising from Andrew Lincoln’s attack on fast food workers who declined to allow him to set his own price for food he had ordered, the issues have narrowed to the specific question of whether the trial court properly sentenced him to the upper term on a firearms enhancement. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
We adopt the recitation of pertinent facts predating this appeal that was set forth in our opinion in People v. Lincoln (2007) 157 Cal.App.4th 196, 200-201 (Lincoln).
Customary quotation marks will not be used in the adopted recitation of facts.
After an altercation and shooting at a fast food establishment, Lincoln was charged with three counts of attempted murder of three victims ([Penal Code, §§ 664, 187) and with three counts of assault with a firearm (§ 245, subd. (a)(2)) against the same victims[]. At his first trial, Lincoln was convicted of one count of assault with a firearm [count 4]. The jury also found true the allegations that Lincoln personally used a firearm (§ 12022.5, subd. (a)) and that he personally inflicted great bodily injury on the victim (§ 12022.7, subd. (a)). The jury was unable to reach a verdict on the remaining five counts; the trial court declared a mistrial as to those charges. Lincoln was sentenced on count 4 of the information and its enhancements to 17 years in state prison.
All further statutory references are to the Penal Code.
Lincoln was retried on the remaining five charges. In the second trial, he was convicted of three counts of attempted voluntary manslaughter (§§ 664, 192, subd. (a)), as a lesser included offense of attempted murder, and two counts of assault with a firearm. The trial court stayed the previously imposed sentence on count 4. [Footnote omitted.] The court selected the lesser included offense on count 1 as the principal term and imposed the upper term sentence of five years six months for that offense. The court then imposed one-third of the midterm sentence for each of the lesser offenses corresponding to counts 2 and 3 (one year each), and designated that those sentences would run consecutively to the principal term. Additional time in prison was imposed as a result of sentence enhancements associated with counts 1, 2, and 3—a total of 15 years eight months. The court imposed but stayed upper term sentences on counts 5 and 6 and their enhancements pursuant to section 654. Lincoln’s total sentence was 23 years 2 months.
Lincoln appealed his conviction and sentence, and in a prior unpublished opinion (People v. Lincoln (Mar. 30, 2005, B159414)) this court reversed his convictions for attempted voluntary manslaughter based on improper jury instructions. The disposition read, “The convictions for assault with a firearm are affirmed. The convictions for attempted voluntary manslaughter are reversed and the case remanded for further proceedings. In the event the People elect not to try the attempted voluntary manslaughter offense or, if Lincoln is retried and found not guilty of attempted voluntary manslaughter, the trial court shall lift its stay of execution of the sentence previously imposed on the assault counts.”
The People elected not to retry Lincoln for attempted voluntary manslaughter. The trial court dismissed counts 1, 2, and 3, and proceeded to resentence Lincoln on counts 4, 5, and 6. The court designated count 4 the principal term and imposed the upper term of 4 years, with 13 more years in enhancements related to that count (§§ 12022.5, subd. (a), 12022.7, subd. (a)). The court decided to impose sentences consecutively. Having decided to impose consecutive sentences, the trial court then, pursuant to section 1170.1, subdivision (a), adjusted Lincoln’s sentence on counts 5 and 6 and their associated enhancements: The court converted the sentence on each count from an upper term sentence with upper term enhancements to a consecutive sentence of one-third the midterm—one year—plus one year 4 months for the section 12022.5, subdivision (a) enhancement, all served consecutively. Lincoln’s total sentence was 21 years eight months.
Lincoln appealed the designation of the sentences as consecutive, and claimed that imposing the upper terms violated his Sixth Amendment rights. Under [People v. Black (2005) 35 Cal.4th 1238, 1244 (Black I) and] Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, we rejected Lincoln’s Sixth Amendment claim, but we held that the trial court lacked jurisdiction to modify the sentence by directing that the terms run consecutively on remand. [We end our quotation from Lincoln, supra, 157 Cal.App.4th at pp. 200-201.]
We therefore remanded the matter for the reimposition of the trial court’s original sentence. (Lincoln, supra, 157 Cal.App.4th at p. 199.) After a petition for review to the California Supreme Court, that court directed us to vacate our prior decision and to reconsider the cause in light of its subsequent decisions in People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval). (Lincoln, at p. 199.)
On remand from the California Supreme Court, we concluded that the trial court violated the Sixth Amendment when it imposed the upper term on count 4 and its associated firearm enhancement because the facts on which the trial court relied—“the circumstances of the offense, particularly vulnerable victims, planning, the opportunity to deliberate and consider the course of action, the close proximity of the victims, and the inherent high risk to the victim—all require[d] factual determinations beyond those necessarily encompassed by the jury verdict.” (Lincoln, supra, 157 Cal.App.4th at p. 202.) We remanded the matter for resentencing, observing that the trial court could impose the same sentence on remand in a manner consistent with the Sixth Amendment and the decisional law concerning sentencing. (Id. at p. 206.)
At the most recent resentencing, the trial court discussed in detail the factors it considered in resentencing Lincoln. The court said, “As to count 4, obviously the issue has been whether or not the court will impose the mid-term or the high-term for the substantive counts and then [the] same issue as to the firearm enhancement.
“I have reviewed Mr. Lincoln’s prior criminal history because that is, given the intervening Cunningham [v. California (2007) 549 U.S. 270 decision] and the related cases that have come down, that is now a factor of great significance. Both counsel have discussed Mr. Lincoln’s prior criminal history, same information just with a different viewpoint on it.”
After addressing a concern raised by Lincoln personally as to what portions of his criminal history could be considered at sentencing, the court set forth Lincoln’s criminal history and concluded, “So his juvenile history shows an extremely serious offense. Petition sustained when he was 14. Two subsequent violations of probation. A failure to complete probation successfully, and several other arrests without charges being sustained.
“As an adult, Mr. Newton [defense counsel] correctly pointed out that his contacts which all occurred when Mr. Lincoln was either 18 or 19 were all for Vehicle Code violations of [a] relatively minor nature. They are all infractions. None of them were of a misdemeanor nature except for failure to appear.
“So it’s a mixed record. It starts out extremely serious. It ends extremely seriously. And in the middle it’s a mixed record but with some probation violations.
“However, the court believes that criminal history is sufficiently serious and there are sufficient violations of probations on several occasions showing that Mr. Lincoln did not comply with the terms and conditions of his probation.
“His initial sustained petition involved the using of a gun pointed at a person in order to effect a robbery and very little besides murder or attempted murder is more serious than that. That, given the use of the gun in this case and the relationship between the two, the court feels justified of the imposition of high-term.
“Therefore, as to count 4, violation of Penal Code section 245, subdivision (a)(2), assault with a firearm, probation having been denied, the court imposes the high-term of four years in state prison for the reasons previously stated regarding his criminal history and his probation violation history.
“The court further imposes the high-term of ten years as to the enhancement pursuant to Penal Code section 12022.5. That is consecutive.
“And as to the enhancement under Penal Code 12022.7, the court imposes the additional three-year term for a total of 17 years on count 4.
“The court is choosing the high-term for the firearm enhancement for the same reasons of defendant’s criminal history as dated before the substantive offense.”
The trial court imposed a total sentence of 21 years eight months in state prison. Lincoln did not object to the sentencing factors relied upon by the trial court in imposing sentence. Lincoln appeals.
DISCUSSION
The trial court based Lincoln’s high term for his assault with a firearm conviction on Lincoln’s prior criminal history and his unsatisfactory performance on probation: “[A]s to Count 4... the court imposes the high-term of four years in state prison for the reasons previously stated regarding his criminal history and his probation violation history.” Next, the court grounded the upper term on the sentence enhancement under section 12022.5, subdivision (a) on the aggravating factor of “defendant’s criminal history as dated before the substantive offense.”
Lincoln appeals the imposition of the upper term on the sentence enhancement, contending that the trial court committed an impermissible dual use of the sentencing factor of his criminal history. He further argues that the only legally authorized sentence on the enhancement is a middle term sentence and urges this court to modify the judgment accordingly. While he has waived the issue on appeal by failing to object in the trial court (People v. Scott (1994) 9 Cal.4th 331, 353), we address the issue nonetheless because Lincoln has claimed that his counsel was ineffective for failing to object.
The exact state of the dual use doctrine is unclear in light of recent constitutional scrutiny of factfinding at sentencing and the resulting amendment of California sentencing law to comport with the Sixth Amendment. The California Supreme Court has not yet resolved the question of whether the prohibition against dual use of facts was affected by the 2007 abandonment of the former statutory presumption that the middle term would be imposed for offenses punishable by three terms of imprisonment unless aggravating factors were found (Stats. 2007, ch. 3, § 2 (effective Mar. 30, 2007) [amending § 1170, subd. (b) to leave the selection of the appropriate term from the sentencing triad to the discretion of the trial court]; Stats. 2008, ch. 416, § 1 [extending applicability of this provision to 2011]). We need not definitively determine the impact of recent legislation on this doctrine, however, because even assuming that the trial court’s double reliance on criminal history was a dual use error, the error was harmless here.
“‘Improper dual use of the same fact for imposition of both an upper term and a consecutive term or other enhancement does not necessitate resentencing if “[i]t is not reasonably probable that a more favorable sentence would have been imposed in the absence of the error.”’ [Citation.]” (People v. Osband (1996) 13 Cal.4th 622, 728 (Osband).) Here, it is not reasonably probable that a more favorable sentence would have been imposed if the trial court had not used Lincoln’s criminal history with respect to sentencing on both the offense and the enhancement. This is not a case in which the trial court’s sentencing intent is in doubt: this is the third time the trial court has imposed upper terms on count 4 and the associated firearm enhancement. Nothing could convey the trial court’s intent to exercise its discretion to impose the upper terms more strongly than the court’s consistent choice of upper term sentences here.
Both at this sentencing hearing and at earlier sentencing hearings, the trial court has articulated numerous reasons for its selection of the high term on the offense. At this hearing, in addition to Lincoln’s criminal history, the court relied upon Lincoln’s probation violation history. Moreover, at the original sentencing hearing, the court cited “‘the circumstances of the offense; the vulnerability of the victims; and the planning that took place’ as the reasons for selecting the upper term” for this crime. (Lincoln, supra, 157 Cal.App.4th at p. 201.) While these factors could not constitutionally be relied on to support the upper term under former sentencing law (id. at p. 202), they are once again constitutional fair game in light of Sandoval, supra, 41 Cal.4th 825 and the amendment of the Determinate Sentencing Law to eliminate the presumptive middle term, making a defendant eligible for the upper term without any additional factfinding. The trial court has therefore identified numerous reasons other than Lincoln’s criminal history to support its exercise of discretion to select the upper term as the appropriate term for the assault with a firearm.
While the fact of the probation violations could not be used as an aggravating factor with respect to the enhancement without affording Lincoln the right to a jury trial because of the nature of the evidence required to prove his poor performance on probation (People v. Towne (2008) 44 Cal.4th 63, 82-83), the same constraint does not apply to sentencing on substantive offenses under the amended section 1170, subdivision (b) and the judicial reformation of sentencing law for pending cases performed by the California Supreme Court in Sandoval, supra, 41 Cal.4th at pages 845 through 852. (Sandoval, at p. 844 [noting that reformation of section 1170 to allow for complete discretion rather than presumption of the middle term would cure the constitutional defect and authorize the selection of the upper term without any requirement of additional factfinding by the judge].)
In Osband, supra, 13 Cal.4th at page 729, the Supreme Court held that resentencing was not necessary where the trial court could have properly arrived at upper term and consecutive sentences if it had allocated the sentencing factors properly, and where the reviewing court concludes that the trial court would have done so if it had been aware of the need: “[T]he court could have selected disparate facts from among those it recited to justify the imposition of both a consecutive sentence and the upper term, and on this record we discern no reasonable probability that it would not have done so. Resentencing is not required.” Here, too, the trial court could have selected disparate facts from among those it has recited to justify the imposition of the upper term for both the offense and the enhancement, and in view of the trial court’s consistent exercise of its sentencing discretion to impose the upper terms here, we discern no reasonable probability that it would not have done so. Any dual use error here is harmless.
Lincoln argues, however, that once the trial court exercised its sentencing discretion to impose a high term on the offense and listed criminal history among the factors, the only sentence that it could legally impose on the enhancement was a middle or low term. He observes that he does not challenge the imposition of the upper term on the substantive offense, notes that the sentence on the offense cannot be considered unauthorized, and concludes that therefore he is entitled to the middle term or the low term on the enhancement. Lincoln offers no authority to support his argument that the trial court’s statement of reasons for imposing the high term on the offense was somehow irrevocable once uttered, and we are not aware of any authority that would prevent a trial court from clarifying the record to make clear its sentencing intent and to properly allocate aggravating factors and reasons for selecting a high term consistent with the Sixth Amendment and state law. Had the trial court been aware that the manner in which it was imposing sentence created an apparent dual use problem, we are confident, based on the trial court’s statements and repeated expressions of sentencing intent, that the trial court would have imposed the same sentence but amended its listed reasons for exercising its discretion to select the upper term on the offense to allocate Lincoln’s prior criminal history only as an aggravating factor pertaining to the sentence enhancement.
Because we have addressed the merits of Lincoln’s claims and have concluded that any dual use error in sentencing Lincoln to the high terms for both the offense and the associated firearms enhancement was harmless, we need not further address his contention that he received ineffective assistance of counsel when his attorney failed to object on dual use grounds. Counsel’s failure to object to a harmless error is itself harmless. (See People v. Nguyen (1995) 40 Cal.App.4th 28, 37, fn. 2.)
DISPOSITION
The judgment is affirmed.
We concur: PERLUSS, P. J. WOODS, J.