Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. BA288654. Robert J. Perry, Judge.
Jeralyn B. Keller, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and Corey J. Robins, Deputy Attorneys General, for Plaintiff and Respondent.
CHAVEZ, J.
A jury convicted Felix Rene Ramirez (appellant) of carrying a loaded firearm (Pen. Code, § 12031, subd. (a)(1) (count 1); possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a) (count 2); and first degree murder (§ 187, subd. (a) (count 3).) With respect to count 1, the jury found that the firearm was not registered to appellant in violation of section 12031, subdivision (a)(2)(F). With respect to count 3, the jury found true the allegations that appellant personally and intentionally discharged a firearm causing death (§ 12022.53, subd. (d)) and the offense was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). Appellant waived a jury on the allegation that he was on bail when the murder was committed, and the trial court found the allegation to be true. (§ 12022.1.)
All further references to statutes are to the Penal Code unless stated otherwise.
In count 3, the trial court sentenced appellant to 25 years to life for the murder, a consecutive term of 25 years to life for the personal firearm-use allegation pursuant to section 12022.53, subdivision (d), and a consecutive two years for the on-bail enhancement for a total sentence of 52 years to life on that count. The trial court noted appellant’s 15-year minimum for parole eligibility due to the gang enhancement. The court imposed the upper term of three years in count 1 and one-third the midterm of two years (eight months) in count 2. The sentence in count 3 is to be served consecutively to the sentences in counts 1 and 2.
Appellant appeals on the grounds that: (1) his conviction for possession of methamphetamine must be reversed because the prosecution presented no evidence that the amount recovered was a usable amount; (2) the court erred in denying appellant’s credits under section 4019 and in denying him the opportunity to earn credits under section 2933 to offset the sentences in counts 1 and 2; (3) the denial of work and behavior credits under section 2933.2 for unrelated non-murder charges consolidated for trial with a murder charge results in the unequal treatment of similarly situated defendants; (4) the trial court erred in imposing the upper term in count 1 because the trial court’s decision was not based on the fact of a prior conviction as required by Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi); (5) a trend in appellant’s criminal history does not constitute a “fact of a prior conviction” and could not serve as the basis for imposing the upper term in count 1; (6) the court could not rely on secondary evidence such as the probation report to determine appellant’s sentence, and trial counsel provided ineffective assistance when he failed to object to the court’s reliance on such secondary evidence; and (7) the minute order and abstract of judgment indicate appellant must pay a $20 court security assessment when the trial court did not order such an assessment.
FACTS
I. Prosecution Evidence
In the early morning hours of July 28, 2005, Officers Arthur Castro and his partner, Officer Rodriguez, of the Los Angeles Police Department observed appellant walking with Lorraine Castro (Castro). Officer Castro had previously had between five to seven encounters with appellant, who admitted his membership in the gang called “Los Crazy Mexicans” (LCM). Appellant was known as “Smokes” and “Gunner.” The LCM gang was a clique of the Highland Park gang, which was a rival of the Avenues gang.
Officer Rodriguez approached appellant and asked him how he was doing. Appellant began to shake, raised his hands, and told Officer Rodriguez that he had a loaded handgun. Officer Rodriguez recovered a Beretta, which was fully loaded with 16 rounds. The officer also found a green baggy containing methamphetamine in appellant’s pocket. Appellant was arrested and later released on bail. The gun had been stolen in 2001 and was registered to Pak Chun Sok of Burbank. Counsel stipulated that the baggy contained .6 grams net weight of methamphetamine.
On August 12, 2005, at approximately 6:00 p.m., appellant and Castro entered Joey’s market near the intersection of York Boulevard and Avenue 52. Appellant pulled on a hooded black sweatshirt. Upon leaving the market, appellant and Castro walked to the corner where Antonio “Chubs” Lugo was standing at the crosswalk. Lugo was a well known member of the Avenues gang. Appellant walked to the crosswalk and pushed the traffic signal button. He then spoke to Lugo and drew a gun from his pants pocket. Lugo ran away as appellant shot at him five or six times while standing in the street. Lugo eventually stumbled and fell. Appellant ran away after putting the gun in the back of his pants in the waistband.
Several people ran to Lugo, who was “losing it real fast” and “bleeding out.” Some tried shaking Lugo to get him to respond until paramedics arrived. At trial, the prosecutor produced as an exhibit an autopsy report bearing Lugo’s name. The parties stipulated that the exhibit could be marked and moved into evidence. The parties also stipulated that bullets recovered from Lugo were .25-caliber, as were the cartridge cases found at the scene.
Appellant was arrested on August 22, 2005. Police served a search warrant on appellant’s home and recovered photographs, letters, and a drawing linking him to gang activity.
Officer Steven Aguilar testified as a gang expert. He had encountered appellant approximately three times, and appellant had admitted that he was a member of LCM. Appellant had various gang tattoos. A video of appellant and other Highland Park gang members was shown to the jury. Officer Aguilar stated that a gang member might divulge that he is carrying a loaded firearm because he thinks he will avoid arrest this way, or that he will avoid being sent to his knees with a gun on him. He thus submits to authority so that the use of force does not escalate.
Officer Aguilar was of the opinion that Highland Park is a criminal street gang within the meaning of the Penal Code. He described the crimes that constituted their primary activities and testified regarding two prior felony convictions suffered by Highland Park gang members. Officer Aguilar believed that the shooting of Lugo was committed for the benefit of the gang. It was a big “notch on your arm” to kill a rival gang member, especially one as well known as Lugo. The shooting would show the Avenues gang that Highland Park is more violent and that the Avenues gang should not enter their turf. The “shift of power” would have gone to Highland Park because “they’re killing off Avenues.” This crime also helped instill fear in the community.
II. Defense Evidence
Castro testified that she and appellant were on their way to Joey’s Mini Market when they saw Lugo. He walked toward them and stared at them. Appellant and Castro entered the store, made some purchases, and left. Lugo was waiting at the corner, and he asked appellant something. She testified that she did not remember what she heard Lugo say. She acknowledged that she might have told detectives that Lugo said, “Where you from?” She might have said that appellant replied, “Highland Park.” She might also have said that Lugo responded, “Fuck Hopeless Park.” Castro said that Lugo “stuck his hand in his shirt.” Then, all she heard was shots. The prosecutor played for the jury a video in which Castro’s voice was heard as the person making the videotape. The video showed appellant throwing gang signs.
DISCUSSION
I. Sufficiency of the Evidence in Count 2
A. Appellant’s Argument
Appellant contends his conviction for possession of methamphetamine must be reversed because the prosecution presented no evidence that the .6 grams recovered was a usable quantity. The prosecution also failed to produce evidence of the form of the recovered material—whether liquid, powder, crystalline, or simply residue clinging to the plastic bag.
B. Relevant Authority
“In reviewing a challenge of the sufficiency of the evidence, we apply the following standard of review: ‘[We] consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt.’ [Citations.] The United States Supreme Court has held: ‘[T]his inquiry does not require a court to “ask itself whether it believes the evidence at the trial established guilt beyond a reasonable doubt.” [Citation.] Instead, the relevant question is whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ [Citations.] The standard of review is the same in cases where the prosecution relies primarily on circumstantial evidence. [Citations.] The California Supreme Court has held, ‘Reversal on this ground is unwarranted unless it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].”’ [Citations.]” (People v. Gaut (2002) 95 Cal.App.4th 1425, 1430.)
The elements of possession of a controlled substance are (1) dominion and control of the substance, (2) in a quantity usable for consumption or sale, (3) with knowledge of its presence and of its restricted dangerous drug character. (People v. Morales (2001) 25 Cal.4th 34, 41; People v. Palaschak (1995) 9 Cal.4th 1236, 1242.) “‘“Each of these elements may be established circumstantially.”’ [Citation.]” (People v. Morales, supra, at p. 42.)
C. Proceedings Below
Officer Castro testified that after appellant disclosed his possession of a handgun to Officer Rodriguez, the officer handcuffed appellant and recovered the gun. Officer Rodriguez also found a green baggy containing methamphetamine in the pocket of appellant’s shorts. The baggy was booked into evidence, and the parties stipulated that the contents were chemically analyzed by a criminalist and found to contain .6 grams net weight of methamphetamine. No other information about the methamphetamine was forthcoming on direct examination or cross-examination.
D. Evidence Sufficient
A usable amount of a controlled substance is an amount sufficient to be used in any manner customarily employed by users of the substance as opposed to debris or useless traces. (People v. Piper (1971) 19 Cal.App.3d 248, 250.) In People v. Leal (1966) 64 Cal.2d 504, 512 (Leal), our Supreme Court held that, “in penalizing a person who possesses a narcotic the Legislature proscribed possession of a substance that has a narcotic potential; it condemned the commodity that could be used as such. It did not refer to useless traces or residue of such [a] substance. Hence the possession of a minute crystalline residue of narcotic useless for . . . consumption . . . does not constitute sufficient evidence in itself to sustain a conviction.” In People v. Rubacalba (1993) 6 Cal.4th 62, 66, the Supreme Court clarified that “the Leal usable-quantity rule prohibits conviction only when the substance possessed simply cannot be used, such as when it is a blackened residue or a useless trace. It does not extend to a substance containing contraband, even if not pure, if the substance is in a form and quantity that can be used. No particular purity or narcotic effect need be proven.”
Applying the foregoing principles, we conclude the evidence in this case was sufficient. As stated in People v. Karmelich (1979) 92 Cal.App.3d 452, 456, “[t]he decision in Leal must be limited to such cases, where only a residue unusable for any purpose, is found; it does not extend to a case such as this, comparable to the cases distinguished in Leal, where the presence of [contraband] itself, not a mere blackened residue on a spoon, was discovered.” The evidence showed appellant possessed .6 grams of methamphetamine, which is more than a useless trace or residue. (See People v. Morales (1968) 259 Cal.App.2d 290, 294-295 [0.12 grams of 1 to 2 percent heroin “was neither a minute amount nor useless for either sale or consumption”].) The fact that neither the testimony nor the stipulation mentioned the form of the contraband is of no consequence. The jury was entitled to infer that the amount found was usable based upon the quantity found, the fact that appellant was carrying the baggy around with him, and the commonly known fact that small amounts of narcotics are capable of being ingested by narcotics users. Absent any contrary evidence from appellant, the only reasonable inference to be drawn from the evidence at trial was that the recovered contraband was neither a useless trace nor mere residue. (Leal, supra, 64 Cal.2d at p. 512.) Therefore, the jury reasonably concluded that it was a usable amount.
II. Denial of Credits
A. Appellant’s Argument
Appellant contends the trial court erred in denying him credits under section 4019 and the opportunity to earn credits under section 2933. Although appellant was convicted of murder, and section 2933.2 denies the credits available under both mentioned code sections to such a defendant, appellant maintains he is entitled to credits he earns to be applied to his offenses in counts 1 and 2 (carrying an unregistered, loaded weapon and possession of methamphetamine), since these counts were unrelated to the murder.
B. Relevant Authority
Section 4019 provides for the granting of presentence credits for work and good behavior. (People v. Philpot (2004) 122 Cal.App.4th 893, 907.) Unless otherwise restricted, “‘a defendant receives what are commonly known as conduct credits toward his term of imprisonment for good behavior and willingness to work during time served prior to commencement of sentence. [Citations.]’” (Ibid.)
Section 2933 governs worktime credit for persons serving a felony sentence in state prison. It provides in part: “For every six months of full-time performance in a credit qualifying program, . . . a prisoner shall be awarded worktime credit reductions from his or her term of confinement of six months.” (§ 2933, subd. (a).)
Sections 2933.1 and 2933.2 set limitations on credits. As pertinent to the instant case, section 2933.2 provides: “(a) Notwithstanding Section 2933.1 or any other law, any person who is convicted of murder, as defined in Section 187, shall not accrue any credit, as specified in Section 2933. [¶] (b) The limitation provided in subdivision (a) shall apply whether the defendant is sentenced under Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2 [the determinate sentencing law] or sentenced under some other law. [¶] (c) Notwithstanding Section 4019 or any other provision of law, no credit pursuant to Section 4019 may be earned against a period of confinement in, or commitment to, a county jail, . . . or a city jail, . . . following arrest for any person specified in subdivision (a). [¶] (d) This section shall only apply to murder that is committed on or after the date on which this section becomes operative.”
C. Credits Properly Denied
As respondent points out, appellant made no objection when the trial court stated, “He receives no good time credits being that this is a murder conviction.” People v. Scott (1994) 9 Cal.4th 331 (Scott) held that “complaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal,” but Scott did not apply the waiver rule to unauthorized sentences. (Id. at p. 356.) If the trial court erroneously applied section 2933.2, appellant’s sentence would be unauthorized, and the Scott waiver doctrine is therefore inapplicable. (People v. Taylor (2004) 119 Cal.App.4th 628, 647; People v. Aguirre (1997) 56 Cal.App.4th 1135, 1139.) We therefore address the merits of appellant’s argument.
We agree with the cases holding that the language of section 2933.2 straightforwardly applies to particular offenders rather than offenses and we therefore conclude that the trial court appropriately applied section 2933.2 to appellant’s case, regardless of the fact that the two non-murder crimes were consolidated for trial with the murder charge. “The plain language of section 2933.2 prohibits a grant of presentence conduct credits to convicted murderers after the effective date of the statute.” (People v. Herrera (2001) 88 Cal.App.4th 1353, 1366.) “[S]ection 2933.2, subdivision (c) states without qualification that ‘no credit’ pursuant to section 4019 may be earned by a person convicted of murder.” (People v. McNamee (2002) 96 Cal.App.4th 66, 70 (McNamee).) “[S]ection 2933.2 applies to the offender not to the offense and so limits a murderer’s conduct credits irrespective of whether or not all his or her offenses were murder. [Citation.]” (People v. Wheeler (2003) 105 Cal.App.4th 1423, 1432 (Wheeler).) The same statutory interpretation of section 2933 applies to the earning of presentence credits and credits against a defendant’s prison term.
Several cases have similarly interpreted section 2933.1, which restricts credits earned under sections 2933 and 4019 to 15 percent for defendants who are convicted of felonies named in subdivision (c) of section 667.5, which lists violent felonies. These courts have held that the language of section 2933.1 evidences the Legislature’s intent to limit credits that can be received by “specified felons.” (People v. Cooper (2002) 27 Cal.4th 38, 43; People v. Buckhalter (2001) 26 Cal.4th 20, 37, fn. 7; People v. Aguirre, supra, 56 Cal.App.4th at pp. 1138-1141.) These specified felons formerly included those convicted of murder, until the enactment of section 2933.2 two years later. (§ 2933.2, subd. (a); see Stats. 1994, ch. 713, § 1, p. 3448; Stats. 1996, ch. 598, § 3, p. 3282.)
Section 2933.1 provides, in part: “(a) Notwithstanding any other law, any person who is convicted of a felony offense listed in subdivision (c) of Section 667.5 shall accrue no more than 15 percent of worktime credit, as defined in Section 2933. [¶] . . . [¶] (c) Notwithstanding Section 4019 or any other provision of law, the maximum credit that may be earned against a period of confinement in, or commitment to, a county jail, . . . following arrest and prior to placement in the custody of the Director of Corrections, shall not exceed 15 percent of the actual period of confinement for any person specified in subdivision (a).”
As stated in People v. Van Buren (2001)93 Cal.App.4th 875 with respect to section 2933.1, the statute “is an expression of the Legislature’s desire to delay the parole of violent felons” and “was enacted as a counterpart to the Three Strikes law sentencing scheme.” (People v. Van Buren, supra, at p. 880, disapproved on another point in People v. Mosby (2004) 33 Cal.4th 353, 365, fn. 3.) It is “intended to protect the public from dangerous offenders who might otherwise be released on parole on an earlier date. [Citation.] By limiting custody credits for defendants convicted of violent felonies, section 2933.1 complements the purpose of the Three Strikes law to ensure longer prison sentences and greater punishment for those who commit serious or violent felonies. [Citation.]” (People v. Van Buren, supra, at p. 880.)
In construing section 2933.2, Wheeler and McNamee analogized from section 2933.1 and reasoned that similar considerations support applying section 2933.2’s ban on conduct credits to all terms of a murderer’s sentence. (Wheeler, supra, 105 Cal.App.4th at pp. 1431-1432; McNamee, supra, 96 Cal.App.4th at p. 73.) We agree with the “parity of reasoning” found in the cases interpreting the two sections and conclude that the language of section 2933.2 demonstrates the Legislature’s intent to further limit credits for those convicted of murder as opposed to other violent felonies. (Wheeler, supra, at p. 1432.) Like section 2933.1, section 2933.2 “applies to the offender not to the offense . . . .” (People v. Ramos (1996) 50 Cal.App.4th 810, 817.) The fact that a defendant, such as appellant, might be convicted of murder at the same time as other charges consolidated for trial does not alter the defendant’s status as a murderer. Appellant’s argument is without merit.
III. Equal Protection and Denial of Credits Under Section 2933.2
A. Appellant’s Argument
Appellant contends that, if this court disagrees with his argument in the second section of this opinion, this court should conclude that when a defendant’s non-murder complaint is consolidated with his murder complaint for trial, section 2933.2 creates two similarly situated categories of criminal defendants and imposes a harsher punishment on one group. Appellant argues that his right to equal protection of the law was violated in this manner.
B. Relevant Authority
“‘The equality guaranteed by the equal protection clauses of the federal and state Constitutions is equality under the same conditions, and among persons similarly situated. The Legislature may make reasonable classification of persons and other activities, provided the classifications are based upon some legitimate object to be accomplished.’ [Citation.]” (People v. Spears (1995) 40 Cal.App.4th 1683, 1687.)
If disparate treatment is shown, the statute is reviewed differently based upon the nature of the classification. Strict scrutiny applies where the legislation creates a suspect classification based upon race or national origin or infringes upon a fundamental interest. An intermediate level of scrutiny applies to classifications based upon gender or illegitimacy. A statutory classification satisfies the requirements for equal protection if, at a minimum, it bears a rational relationship to a legitimate governmental purpose. (People v. Wilkinson (2004) 33 Cal.4th 821, 836.) However, “[i]t is well established that the Legislature may single out a particular threat to society and punish it as a separate category from other types of threats.” (People v. Edwards (1991) 235 Cal.App.3d 1700, 1709.) In general, the Legislature is given wide discretion to determine how to attack an evil through legislation. (People v. Kilborn (1996) 41 Cal.App.4th 1325, 1331.) Its determination as to the means best suited to remedy the problem “‘is given the benefit of every conceivable circumstance which might suffice to characterize the classification as reasonable rather than arbitrary and invidious.’” (Ibid., quoting from McLaughlin v. Florida (1964) 379 U.S. 184, 191.)
C. No Equal Protection Violation
An equal protection claim fails at the threshold if the persons compared are not similarly situated. This comparison must be made with respect to the purpose of the law challenged. (People v. Crosswhite (2002) 101 Cal.App.4th 494, 506; People v. Buffington (1999) 74 Cal.App.4th 1149, 1155.) The question of whether sentencing disparities violate equal protection depends on whether the state sets forth a rational basis for the disparity; i.e. whether the classification is rationally related to a legitimate governmental purpose. (People v. Alvarez (2001) 88 Cal.App.4th 1110, 1116; People v. Flores (1986) 178 Cal.App.3d 74, 88.)
At the outset, a person convicted of murder, illegal possession of a loaded gun, and possession of a controlled substance is not similarly situated for equal protection purposes to a person convicted of the latter two offenses only. The consolidation of appellant’s offenses for trial was a result of his having committed the crimes within a narrow time frame and of his possession of a gun in the prior incident. The charges were properly consolidated, and the law favors consolidation of charges. (People v. Ochoa (1998) 19 Cal.4th 353, 409.) The fact that appellant was simultaneously convicted of murder and two non-murder offenses was the result of his own conduct.
Furthermore, the state has a legitimate interest in delaying the parole dates of persons convicted of murder as opposed to those convicted of less severe crimes regardless of whatever other charges may have been tried along with the murder. (See People v. Van Buren, supra, 93 Cal.App.4th at p. 880.) As stated previously, section 2933.2, like its counterpart, section 2933.1, complements the goals of the Three Strikes law: ensuring longer sentences and greater punishment for violent felons.
Accordingly, appellant was not denied equal protection when he was convicted of illegal possession of a firearm and possession of a controlled substance in the same proceeding as his murder conviction and thereby denied conduct and worktime credits for the non-murder offenses.
IV. Imposition of Upper Term on Count 1 and Trial Court’s Justification for Upper Term
We consolidate appellant’s fourth and fifth issues.
A. Appellant’s Argument
Appellant contends that under Apprendi and Cunningham v. California (2007) 549 U.S.____ [127 S.Ct. 856] (Cunningham), the trial court’s upper term sentence is unauthorized and violates his constitutional rights, since the trial court did not base its increase on the fact of a prior conviction. Appellant maintains his prior juvenile adjudication is not a prior conviction within the meaning of Apprendi.
Appellant also asserts that the trial court’s determination that his offenses were “numerous and increasing” is a value determination based on appellant’s juvenile court history. He contends that after Cunningham the trial court’s reliance on its own assessment of a defendant’s criminal history is no longer permissible, and this court should reduce his sentence in count 1 to the midterm.
B. Proceedings Below
In imposing sentence the trial court stated it would impose the upper term of three years in count 1 because appellant’s “prior convictions were numerous and increasing” and there were no mitigating circumstances.
C. Upper Term Properly Imposed
Appellant’s arguments lack merit, and for the reasons set forth in People v. Black (2007) 41 Cal.4th 799 (Black II), we find no constitutional violation in the imposition of the upper term.
This is the second review of the case of People v. Black by the California Supreme Court following remand from the United States Supreme Court after the decision of Cunningham.
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.) The Supreme Court subsequently held that “the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” (Blakely v. Washington (2004) 542 U.S. 296, 303 (Blakely).) The high court recently made it clear that, “[i]n accord with Blakely, . . . the middle term prescribed in California’s statutes, not the upper term, is the relevant statutory maximum.” (Cunningham, supra, 127 S.Ct. at p. 868.) The court therefore concluded that the California determinate sentencing law was unconstitutional to the extent it authorized the trial court to impose an upper term sentence based on facts that were found by the court, rather than by a jury beyond a reasonable doubt. (Id. at p. 871.)
In interpreting Cunningham in Black II, supra, 41 Cal.4th at page 812, the California Supreme Court determined that “as long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional factfinding 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.” Black II emphasized that the “‘prior conviction’ exception” must not be read too narrowly; it includes “not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions.” (Black II, supra, at p. 819.)
Black II specifically addressed the aggravating factor at issue here. The court stated that, “The determinations whether a defendant has suffered prior convictions, and whether those convictions are ‘numerous or of increasing seriousness’ (Cal. Rules of Court, rule 4.421(b)(2)), require consideration of only the number, dates, and offenses of the prior convictions alleged. The relative seriousness of these alleged convictions may be determined simply by reference to the range of punishment provided by statute for each offense. This type of determination is ‘quite different from the resolution of issues submitted to a jury, and is one more typically and appropriately undertaken by a court.’ [Citation.]” (Black II, supra, 41 Cal.4th at pp. 819-820; see also People v Yim (2007) 152 Cal.App.4th 366, 370-371.)
California Rules of Court, rule 4. 421(b)(2) lists as an aggravating circumstance that, “The defendant’s prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness.”
In this case the record shows that a juvenile petition in November 2003 charged appellant with several offenses, and the petition was sustained with respect to one count of assault with a deadly weapon, not a firearm, by any means likely to produce great bodily injury on a peace officer in violation of section 245, subdivision (c). Appellant was sent to camp. In July 2005 he was arrested for carrying a loaded firearm and for possession of a controlled substance. He was found guilty of these offenses in the instant trial. Approximately two weeks later, while out on bail, appellant shot Lugo in the street. Thus, appellant was found to have committed four offenses. We believe four offenses constitute a sufficient number to qualify as numerous, and, in any event, appellant’s offenses are clearly of increasing seriousness, as evidenced by the fact that his most current offense is murder.
The probation report states that appellant’s date of birth is June 10, 1986.
Here, the trial court’s basis for imposing the upper term was the type of finding relating to a defendant’s recidivism “that may be determined by examining the records of the prior convictions” and is “‘typically and appropriately undertaken by a court.’” (Black II, supra, 41 Cal.4th at pp. 819-820; see also People v. Yim, supra, 152 Cal.App.4th at pp. 370-371.) Once the trial court made its determination, appellant was eligible for the upper term, which became the statutory maximum. (Black II, supra, at p. 816.) Appellant’s argument is therefore without merit.
V. Trial Court’s Reliance on Secondary Evidence in Imposing Upper Term; Ineffective Assistance of Counsel
A. Appellant’s Argument
Appellant contends that the prosecutor’s sentencing memorandum and the probation report were unreliable evidence of his juvenile history, since neither document was an official record on which the court could rely. Furthermore, he argues, the prosecution’s sentencing memorandum and the probation report were in conflict, since the sentencing memorandum listed only an arrest for assault whereas the probation report listed a sustained juvenile petition for the assault. He argues that his counsel’s failure to object to the trial court’s reliance on this unreliable and inadmissible evidence resulted in ineffective assistance.
B. Trial Court Properly Relied on Probation Report
We first note that three of appellant’s crimes that justify the finding that his offenses are numerous or of increasing seriousness were tried before the very court that made the finding. Thus, the trial court did not rely entirely on secondary sources, as appellant claims.
In addition, the prosecutor’s sentencing memorandum states both that appellant was arrested on November 17, 2003, for a violation of section 245, subdivision (c) and that he suffered a sustained juvenile petition for assault on a peace officer. The fact that this information is divided between two different aggravating factors discussed by the prosecutor is of no consequence.
With respect to the alleged unreliability of the probation report, however, it is established that the trial court may rely on hearsay in a probation report for sentencing purposes. (People v. Foster (1993) 14 Cal.App.4th 939, 946.) Use of a probation report to support judicial findings at a sentencing hearing was approved in Black II, where the defendant argued that “hearsay statements” contained in the probation report were “insufficient as a matter of law to prove the prior convictions beyond a reasonable doubt.” (Black II, supra, 41 Cal.4th at p. 820, fn. 9.) The court disagreed: “On appellate review, a trial court’s reasons for its sentencing choice are upheld if ‘supported by available, appropriate, relevant evidence. . . .’ [Citations.] . . . [The trial court’s] conclusion that defendant’s prior convictions were numerous or of increasing seriousness is supported by the probation report . . . .” (Id. at pp. 818-819, fn. 7, quoting People v. Garcia (1995) 32 Cal.App.4th 1756, 1775; see also People v. Grayson (2007) 155 Cal.App.4th 1059, 1069; Cal. Rules of Court, rule 4.420(b).)
It is true that certain statements, narratives, or summaries contained within probation reports may raise hearsay concerns. (See People v. Reed (1996) 13 Cal.4th 217, 230.) In this case, however, no such information was used by the trial court. The report indicates that among the sources of information for appellant’s prior record were “juvenile probation records” and “defendant’s juvenile file.” Appellant suggests no reason why the probation report should be regarded as unreliable or untrustworthy, and we perceive none.
We believe the trial court properly relied upon the information regarding appellant’s criminal record contained in the probation report when imposing the upper term sentence. Because we believe that any objection to use of this information would have been meritless, we also conclude appellant was not denied the effective assistance of counsel. (People v. Prieto (2003) 30 Cal.4th 226, 261 [“counsel’s decision to forgo implausible arguments or objections does not constitute deficient performance”]; People v. Ochoa, supra, 19 Cal.4th at p. 432; People v. Lewis (1990) 50 Cal.3d 262, 289.)
VI. Court Security Assessment
A. Appellant’s Argument
Appellant points out that, although the abstract of judgment and the minute order of sentencing state that the trial court assessed appellant $20 under section 1465.8, subdivision (a)(1), the reporter’s transcript contains no mention of the court security assessment. He asks this court to strike the assessment.
B. Court Security Fee Mandatory
Section 1465.8, subdivision (a)(1) provides: “To ensure and maintain adequate funding for court security, a fee of twenty dollars ($20) shall be imposed on every conviction for a criminal offense, including a traffic offense, except parking offenses as defined in subdivision (i) of Section 1463, involving a violation of a section of the Vehicle Code or any local ordinance adopted pursuant to the Vehicle Code.” As stated in People v. Schoeb (2005) 132 Cal.App.4th 861, 865, section 1465.8 unambiguously requires a trial court to impose a $20 court security fee for each criminal conviction a defendant suffers.Accordingly, the trial court should have imposed a $20 court security fee for each of appellant’s three convictions.
DISPOSITION
The judgment is modified to reflect a $20 court security fee for each of appellant’s convictions. The judgment is otherwise affirmed. The superior court is directed to correct the abstract of judgment to show that the court security fee is imposed for each conviction and to forward a corrected copy to the Department of Corrections and Rehabilitation.
We concur: BOREN, P,.J., ASHMANN-GERST, J