Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. BF112056-A. Louis P. Etcheverry, Judge.
John Doyle, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Louis M. Vasquez and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Levy, J.
INTRODUCTION
Appellant Reginald Stephenson was convicted after jury trial of committing the following offenses on October 8, 2004: possessing Ecstasy while armed with a loaded firearm (count 1), transporting Ecstasy (count 2), possessing Ecstasy (count 3), and being a felon in possession of a firearm (count 4). (Health & Saf. Code, §§ 11370.1, subd. (a), 11379, subd. (a), 11378; Pen. Code, § 12021, subd. (a)(1).) Appellant admitted three prior strike allegations arising from a 1978 conviction for violating section 211 and a 1981 conviction for two counts of violating section 288a, subdivision (c). (§§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e).) The trial court granted appellant’s Romero motion and dismissed two of the prior strike allegations. Appellant was sentenced to an aggregate term of nine years and four months, calculated as eight years on count 2 (the doubled upper term) plus a consecutive term of one year and four months on count 4 (one-third the doubled midterm); the sentences imposed on counts 1 and 3 were stayed pursuant to section 654.
Unless otherwise specified all statutory references are to the Penal Code.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
Appellant argues that his pretrial suppression motion should have been granted because his constitutional privacy right was infringed when a police officer used a spotlight to illuminate his vehicle without possessing a preexisting suspicion of criminal activity. We disagree. Illumination of appellant’s vehicle with a spotlight did not have any constitutional significance; it did not constitute a detention or a search and it did not infringe appellant’s right to privacy. We also reject appellant’s claim of instructional error and his sentencing challenges. Having found neither judicial error nor infringement of any constitutional right, we will affirm.
FACTS
Around midnight on October 8, 2004, two Bakersfield police officers conducted a traffic stop of appellant’s vehicle. During a consensual pat search, one of the officers found a baggie containing four tablets of Ecstasy in appellant’s front pants pocket. A loaded, operable firearm and a baggie containing less than an ounce of marijuana were found underneath the driver’s seat of the vehicle. An unrelated minor was a passenger in the car when appellant was stopped.
Appellant did not challenge the sufficiency of the evidence and we have not found any error requiring a prejudice analysis. Therefore, detailed recitation of trial testimony is unnecessary. Facts necessary to resolve the issues raised by appellant will be set forth in our discussion thereof.
DISCUSSION
I. The suppression motion was properly denied.
A. Facts
Appellant filed a motion to suppress all of the evidence that was seized from his car and from his person, which was heard on January 31, 2006.
Bakersfield Police Officer Charles Sherman was the sole witness. Sherman testified that he was driving eastbound on California Avenue in an unmarked police car with his partner, Officer Lantz, around midnight on October 8, 2005. Sherman observed appellant’s vehicle pull out of the driveway of the Central Cali Market and begin traveling eastbound on California Avenue. While appellant’s vehicle was stopped at a red light, Lantz “shined a spotlight [located on the passenger side of the police vehicle] into the driver’s window [of appellant’s car] to ascertain the occupants of the vehicle, and the spotlight could not penetrate the tint in the windows.” Lantz used the spotlight “to observe and identify the occupants of the vehicle.” After Lantz illuminated appellant’s vehicle, Sherman and Lantz “determined that the front windows might have been illegally tinted.” Prior to illuminating appellant’s vehicle with the spotlight, Sherman did not notice anything unusual about the vehicle or its occupants.
Sherman initiated a traffic stop due to the tinted windows. During a consensual pat search for weapons, Sherman felt a baggie containing four tablets in the front pocket of appellant’s jeans. In response to Sherman’s query, “what it was,” appellant replied, “[I]t was drugs.” Sherman pulled out the baggie and found four pinkish pills that Sherman believed were Ecstasy. He decided to arrest appellant for possession of Ecstasy. In response to Sherman’s question whether “there was anything else in the vehicle he wanted to tell me about before I impounded the vehicle,” appellant said “there was a firearm in the vehicle.” Sherman found a loaded, operable firearm and a bag containing less than an ounce of marijuana underneath the bucket-style driver’s seat.
Defense counsel argued that the drugs and firearm must be suppressed because appellant’s vehicle was illegally stopped. Counsel reasoned that illuminating the vehicle with a spotlight infringed appellant’s constitutional right to privacy. Counsel asserted that a driver has a right to privacy in his vehicle “unless the officers have some reason before they shine the light in there to think that you have done something wrong.” (Emphasis added.) The court denied the suppression motion, because “I don’t think there is anything that prohibits the police from using any type of artificial illumination.” The court reasoned:
“I don’t know that you have a right to privacy if you are driving your car on a public highway. I don’t know that you have a right to privacy for the police not to look in and see who is in the car without actually breaking the plane of the window or the door of the car. If they are in a public place, I think they can look inside your car.”
Defense counsel filed supplemental authority.
The suppression motion was denied without a written ruling on February 16, 2006.
B. Shining a spotlight on appellant’s vehicle did not infringe any of his federal or state constitutional protections.
Appellant asserts that Officer Lantz’s act of shining a spotlight on appellant’s vehicle to determine the identity of the vehicle’s occupants constitutes an illegal search because Lantz acted arbitrarily and did not have a reasonable suspicion of criminal activity prior to shining the light.
In formulating this argument, appellant attempts to distinguish the plethora of federal and California state authority holding that use of artificial illumination or a visual aid does not have any constitutional significance by asserting that, in prior cases, the officers had a legitimate reason for illuminating the area while, in this case, the officers were motivated by mere curiosity. We are not convinced. As will be explained, the constitutionality of using artificial illumination is not dependent on the existence of a particularized suspicion of wrongdoing.
In Texas v. Brown (1983) 460 U.S. 730 (Brown), the United States Supreme Court upheld an officer’s use of a flashlight to illuminate the interior of a vehicle that had been stopped at “a routine driver’s license checkpoint” against a challenge that the illumination constituted an illegal search. (Id. at p. 733.) The officer shined his flashlight into the vehicle at roughly the same time he asked defendant for his driver’s license. He saw defendant withdraw his right hand from his right pants pocket. Defendant was holding a green party balloon, which he allowed to fall to the seat beside his leg. The balloon contained heroin. The Supreme Court concluded that the plain view doctrine applied to the officer’s discovery. In relevant part, it determined:
“It is … beyond dispute that [the officer’s] action in shining his flashlight to illuminate the interior of [defendant’s] car trenched upon no right secured to the latter by the Fourth Amendment. The Court said in United States v. Lee [(1927)] 274 U.S. 559, 563 …, that ‘[The] use of a searchlight is comparable to the use of a marine glass or a field glass. It is not prohibited by the Constitution.’ Numerous other courts have agreed that the use of artificial means to illuminate a darkened area simply does not constitute a search, and thus triggers no Fourth Amendment protection.” (Brown, supra, 460 U.S. at pp. 739-740, fn. omitted.)
Brown relied on United States v. Lee, supra, 274 U.S. 559 (Lee). In Lee, a Coast Guard patrol boat followed a motorboat traveling “in a region commonly spoken of as Rum Row.” (Id. at p. 560.) A boatswain shined a searchlight into the motorboat and saw cans of alcohol aboard. The Supreme Court determined that the act of shining a searchlight into the motorboat was “not prohibited by the Constitution” because it “is comparable to the use of a marine glass or a field glass.” (Id. at p. 563.)
In neither Brown nor Lee did the officers have a particularized suspicion that the defendant was engaged in criminal activity prior to use of the artificial illumination. In neither case was the officer investigating a crime or responding to a request for emergency assistance. In both cases, the officer was performing his regular duties. In Brown, the officer was operating driver’s license checkpoint. In Lee, the Coast Guard boat was patrolling an area that was known for criminal activity. In neither case were there any facts that the defendant or his mode of transport gave rise to any particularly heightened suspicion in the minds of law enforcement personnel.
During trial, testimonial evidence was presented that the Central Cali Market is a known gang hangout and drug activity occurs at this location.
Similarly, the California Supreme Court has unequivocally determined that use of artificial illumination by a law enforcement officer does not touch upon any constitutional guarantees or protections. In People v. Hill (1974) 12 Cal.3d 731 (Hill), officers effected a traffic stop and viewed the interior of the vehicle with the assistance of a flashlight. The officer observed what appeared to be a kilo of marijuana inside the car. Our high court determined that the plain view exception applied. In relevant part, it concluded that “the use of a flashlight to illuminate the interior of the automobile is of no constitutional significance.” (Id. at p. 748.) To support this conclusion, the court relied on People v. Superior Court (Mata) (1970) 3 Cal.App.3d 636 (Mata).
In Mata, the officer effected a traffic stop. He illuminated the car’s interior with a flashlight and discovered contraband. The appellate court determined that no search occurred. In doing so, it explicitly rejected the trial court’s conclusion that the officer’s observation through a window at night, with light provided by a flashlight, constituted an unlawful search. (Mata, supra, 3 Cal.App.3d at p. 639.) The appellate court explained:
“There was no ‘search.’ A search is ‘prying into hidden places for that which is concealed and that the object searched for had been hidden or intentionally put out of the way.’ [Citation.] …
“Looking through the window of an automobile is not unlawful. Observation of that which is in view is lawful, whether the illumination is daylight, moonlight, lights within the vehicle, lights from street lamps, neon signs or lamps, or the flash of lights from adjacent vehicles [citation]; that the light comes from a flashlight in an officer’s hand makes no difference. [Citations.]” (Ibid.)
In neither Hill nor Mata did the courts indicate that their holdings depended, in whole or in part, on the fact that the use of artificial illumination was preceded by a valid traffic stop.
People v. Rico (1979) 97 Cal.App.3d 124 (Rico) is analogous to the instant case. There, the police officers used their patrol car’s spotlight to illuminate a car so that they could determine whether the car and its occupants matched a suspect vehicle. They could not reach a conclusion and pulled back, following the defendant’s vehicle. Eventually the vehicle pulled to the shoulder of the road and the occupants were contacted by the officers. The appellate court upheld the trial court’s determination that the initial spotlighting of the car was not a detention. It explained:
“In the instant case, the officer was merely cruising along the freeway making general observations in the hope of spotting suspicious activity. His testimony revealed that at this point in time he himself did not feel there was probable cause to stop the vehicle in question and he only used his spotlight to get a better look at the occupants. This momentary use of the spotlight and the notable absence of any additional overt action is in obvious contrast to the activities of the police in the three aforementioned cases and is therefore insufficient to be categorized as a detention ….
“… The conduct of Officer Hanson in momentarily shining his spotlight into the suspect vehicle, in the absence of flashing lights, sirens or a directive over the loudspeaker was ambiguous…. The officer could have just as easily shone his spotlight on the appellants in error, or to see if assistance was needed or to investigate a recent crime. This one action would not make every motorist feel compelled to pull over.” (Id. at p. 130.)
Thus, in Rico, the officers were curious about the vehicle and wanted to identify its occupants. The officers did not have an independent basis to stop the vehicle prior to using the spotlight. The appellate court’s conclusion that no detention occurred is not dependent on the fact that there had been a previously broadcast description of a suspect vehicle. Indeed, the appellate court listed many reasons why an officer would utilize a spotlight in the regular performance of his duties.
Similarly, in this case Sherman and Lantz were performing their regular duties as police officers when they became interested in appellant’s vehicle and briefly used the spotlight to identify the vehicle’s occupants. As a result of this illumination, they discovered a violation of the Vehicle Code and effected a traffic stop. The brief use of the spotlight did not constitute a detention or a search, regardless of why it was used or whether the officers possessed a particularized suspicion of criminal activity.
Furthermore, use of the spotlight did not infringe appellant’s constitutional privacy right. In People v. Vermouth (1974) 42 Cal.App.3d 353 (Vermouth), officers used binoculars to confirm their suspicion that defendant was illegally growing marijuana on a sun deck. The appellate court determined that use of the binoculars “did not invade defendants’ reasonable expectation of privacy so as to invalidate either the warrant or the search. [Citations.]” (Id. at p. 361.) It reasoned, “Application of the plain-view doctrine is unaltered by an officer’s employment of artificial illumination citation and we see no reason to invoke a different rule where the visual aid employed is optical.” (Id. at p. 362.)
We find Vermouth well reasoned and persuasive. Following and applying Vermouth, we similarly conclude that one’s right to privacy while driving or riding in a vehicle on a public street or highway does not encompass a reasonable expectation of freedom from illumination by a police spotlight, just as it does not encompass an expectation of freedom from illumination by other sources such as streetlights, neon signs or moonlight.
The general proscription against use of a spotlight to illuminate a motor vehicle contained in Vehicle Code section 24404, subdivision (e), is not significant because this section is not applicable to emergency vehicles. (Veh. Code, § 24404, subd. (d).) Furthermore, appellant provides no authority supporting the proposition that evidence obtained as a result of a violation of Vehicle Code section 24404, subdivision (e), is inadmissible in a criminal prosecution.
For all of these reasons, we hold that illumination of appellant’s vehicle with a spotlight did not have any constitutional significance. It did not constitute a detention or a search and it did not infringe appellant’s right to privacy. We reject appellant’s contention that in the absence of particularized suspicion, the use of artificial illumination is prohibited by the Fourth Amendment of the United States Constitution. Therefore, the suppression motion was properly denied.
II. No instructional error occurred.
A. Facts
Appellant’s defense was based on the theory that the contraband did not belong to him. Appellant presented testimonial evidence from numerous witnesses that his car was stolen from the parking lot of a market on the day before his arrest. Appellant testified on his own behalf. He said that he unexpectedly recovered his car from the parking lot of the Central Cali Market two or three minutes before he was stopped by Officers Sherman and Lantz. Appellant testified that when he recovered the car, the driver’s door was open. A group of people were standing around the car and the car’s stereo was playing. After he hit the alarm button on his set of car keys, the group dispersed. The gun was on the driver’s seat and a blue package was resting by the driver’s seat. He put the gun under the driver’s seat and put the packet containing the Ecstasy in his pants pocket. He was driving to his girlfriend’s residence when he was stopped by the officers. Appellant intended to “get rid of everything that I found in my car that didn’t belong to me.” Appellant testified that he did not have time to formulate a plan to take the contraband to a police station because he was stopped by the officers almost immediately after he recovered the vehicle; his sole concern was to drive away from the area where he recovered his car because it was a known gang hangout. He did not know what he was going to do with the firearm and drugs other than to “get [them] out of my car.” The marijuana found in the vehicle belonged to him.
In rebuttal, Sherman testified that that appellant told him that his car was stolen from his girlfriend’s house earlier that day. Appellant said that he recovered the car after receiving a telephone call informing him that it was parked at the Central Cali Market. Appellant said that he found the gun and the Ecstasy in his car. Appellant said that he kept the gun and the drugs in his possession because “he wanted to find out who had put them in his car so he could … take care of it.” Appellant said that he was driving to the Elks Club (which is a known gang hangout) when he was stopped.
The jury was given CALJIC No. 3.30 to instruct on general criminal intent. CALJIC No. 3.31.5 was given to instruct on joint union of act and mental state. CALJIC No. 1.21 was given to define the term “knowingly.”
The jury was instructed on the defense of momentary and justifiable possession, which is codified in section 12021, subdivision (h). The jury was given CALJIC No. 12.06 to instruct on lawful possession of a controlled substance. Immediately after CALJIC No. 12.06 was read, the jury was instructed that “As used in this instruction, ‘momentary possession’ is fleeting, de minimus possession and a reflexive act of abandonment.” CALJIC No. 2.50.2 was given to define preponderance of the evidence. The jury was given CALCRIM No. 2511 to instruct on the elements of illegal firearm possession and on the defense of justifiable possession of the firearm.
CALCRIM No. 2511 is the only CALCRIM instruction that was given. The court recommended use of CALCRIM No. 2511 instead of CALJIC No. 1244 because CALJIC No. 1244 did not reflect recent changes in section 12021. Defense counsel agreed to use of CALCRIM No. 2511.
B. The instructions did not negate the requirement that the jury must determine beyond a reasonable doubt that appellant knowingly possessed the weapon/drugs and they did not improperly shift the burden of proof.
Appellant contends that while all of the instructions given are individually correct, collectively they shifted to him the burden of demonstrating that he did not intend to possess the contraband and the firearm.
We summarily reject this contention because it erroneously assumes that the People have the burden of proving that appellant specifically intended to possess the drugs and firearm in order to be guilty of the charged offenses. This is incorrect. The charged offenses are general intent crimes; they require only knowing possession of the contraband. (People v. Martin (2001) 25 Cal.4th 1180, 1185, fn. 4 [there is no specific intent required for the crime of simple possession of controlled substances]; People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1410 [“Implicitly, the crime is committed the instant the felon in any way has a firearm within his control” (original emphasis omitted).]) The jury was correctly instructed on the elements of the offenses and the word “knowingly” was correctly defined for the jury. Once appellant realized that there was a firearm and controlled substances in his car and he intentionally exercised some control over those items by handling them, then it was his burden to show that his possession was momentary and fleeting and for the purposes of disposal by a preponderance of the evidence.
This court’s decision in People v. Jeffers (1996) 41 Cal.App.4th 917, 923, does not assist appellant. As he correctly acknowledges, it was the absence of CALJIC No. 3.30 or an equivalent instruction that resulted in our conclusion that the charge was deficient. In this case, CALJIC No. 3.30 was given. Thus, Jeffers is fully distinguishable. Although CALJIC No. 3.30 has been reworded in CALCRIM Nos. 250 and 252, CALJIC No. 3.30 is an accurate statement of law. Accordingly, we conclude that the jury charge was not legally deficient and it did not impermissibly shift the applicable burden of proof.
Furthermore, it is not reasonably likely that the jury understood the jury charge in the convoluted manner suggested by appellant. The jury’s charge is to be understood as a whole and must be interpreted in a reasonable manner. One phrase or instruction may not be isolated or taken out of context. (People v. Fauber (1992) 2 Cal.4th 792, 863.) Jurors are presumed to be reasonable intelligent people who understand and follow their instructions. (Francis v. Franklin (1985) 471 U.S. 307, 325, fn. 19; People v. Beach (1983) 147 Cal.App.3d 612, 624.) When the jury charge is considered in its entirety, reasonable jurors would have understood that the People bore the burden of proving every element of the charged offenses, including proof of criminal intent.
Finally, if appellant desired further pinpoint instruction on the relation between intent and the defense of justifiable possession, he bore the burden of the suggested instruction in a timely fashion. Having failed to do so, he cannot complain about their absence in this forum. (People v. McCaskey (1989) 207 Cal.App.3d 248, 259.)
III. Appellant was properly sentenced; neither constitutional error nor abuse of judicial discretion appears.
A. Facts
On May 2, 2006, appellant filed a Romero motion to dismiss his prior strike convictions in the interest of justice.
On May 5, 2006, the probation officer submitted a report that recommended denial of probation and imposition of an aggregate term of 50 years to life imprisonment (the probation report). The probation officer listed appellant’s prior satisfactory performance on parole as a mitigating factor. It listed three aggravating factors: (1) prior juvenile commitment and prior prison term; (2) prior unsatisfactory performance on juvenile parole; and (3) commission of the present offense in the presence of a minor.
On May 9, 2006, appellant filed a statement in mitigation and objection to the report. The mitigation statement listed the following factors: (1) satisfactory performance on parole; (2) owner of a trucking business; (3) no convictions after 1989 prison release; (4) prior convictions are remote; (5) possession of a small amount of Ecstasy; and (5) positive record of volunteer work. Appellant objected to the recidivism aggravating factors and asserted that consecutive sentencing was inappropriate because counts 2 and 4 occurred simultaneously and indicated a single period of aberrant behavior.
Numerous letters were submitted attesting to appellant’s good character.
On May 12, 2006, the court dismissed two of the strikes: the 1978 robbery conviction and one of the 1980 oral copulation 288a convictions. In making this decision, the court stated that it read the probation report, appellant’s written objection to the probation report and character letters.
A second probation report was prepared. It recommended imposition of the upper term because of the aggravating factors listed in the prior report and recommended consecutive sentencing because the crimes and their objectives were predominately independent of each other.
Appellant was sentenced on August 1, 2006. At the outset, the court declined to dismiss the remaining strike.
Defense counsel argued for imposition of the mitigated term on count 2 and consecutive sentencing.
The court imposed the upper term for count 2 and decided that count 4 would run consecutive to count 2. The court selected the aggravated term for the reasons stated in the probation report. It cited appellant’s prior satisfactory performance on parole as a mitigating factor. The court did not provide a reason supporting the consecutive sentencing decision. Defense counsel did not object to the absence of a reason supporting the consecutive sentencing decision.
B. Imposition of the upper term for count 2 was not Blakely/Cunningham error because appellant’s recidivism justifies imposition of this term.
Blakely v. Washington (2004) 542 U.S. 296 (Blakely); Cunningham v. California (2007) 547 U.S. __ (Cunningham).
It is established that defendants do not have a right to jury trial for a sentence that is based on the fact of a prior conviction. (Almendarez-Torres v. United States (1998) 523 U.S. 224, 243, 246.) The recidivism exception 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.” (People v. Black (2007) 41 Cal.4th 799, 819. (Black II).)
We note that appellant’s failure to object on Blakely grounds at sentencing did not result in forfeiture of this claim because he was sentenced after our Supreme Court decided People v. Black (2005) 35 Cal.4th 1238 (Black I), which held that a jury trial is not required on aggravating factors justifying imposition of the upper term, and before the United States Supreme Court decided Cunningham, which abrogated Black I. The change in the law excused trial counsel’s failure to object on this ground. (Cf. Black II, supra, 41 Cal.4th at pp. 810-812.)
In Black II, our Supreme Court recently held that the presence of one aggravating factor that is established in a manner satisfying Sixth Amendment requirements renders a defendant eligible for an upper term sentence:
“… [A]s 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 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.” (Black II, 41 Cal.4th at p. 819.)
The recidivism exception applies in this case. Not only can appellant’s prior criminal history be established by examining the record of his prior convictions, but appellant admitted three prior strikes. Therefore, imposition of the upper term did not infringe any of appellant’s constitutional rights and protections.
The presence of additional aggravating circumstances cited by the trial court does not compel a different result. Black II explains:
“… [S]o long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury.” (Black II, supra, 41 Cal.4th at p. 813.)
C. Imposition of the upper term was not an abuse of discretion.
Appellant argues the trial court failed to give sufficient weight to the mitigating factors present in his case and points out that the court did not mention the numerous mitigating factors it set forth in his statement of mitigation. This argument fails because the sentencing criteria enumerated in the rules is deemed to have been considered by the sentencing judge unless the record affirmatively demonstrates otherwise. (People v. Reid (1982) 133 Cal.App.3d 354, 370-371; Cal. Rules of Court, rule 4.409.) There is no evidence in the record demonstrating that the court did not consider all of the mitigating circumstances, as well as the aggravating circumstances. On the contrary, the trial court specifically stated that it had considered the statement of mitigation and read the character letters prior to granting the Romero motion. Thus, the record supports a reasonable inference that the trial court was aware of the information contained in these documents when it subsequently sentenced appellant.
Appellant also contends that the trial court impermissibly used the fact that he received a jury trial as an aggravating factor. We reject this argument because it is based upon a distortion of the record of the sentencing hearing. Defense counsel argued that the court should stay sentence on all the felonies and allow appellant to “get a year and a [half] and some sort of a Prop. 36 program.” Alternatively, the court should impose the mitigated term because of the circumstances of the offenses. It was in rejecting these requests that the court commented that the jury convicted appellant of the felonies. Then the court stated that appellant’s version of events had been heard by a jury and rejected. The court continued, “[T]here appears to be substantial evidence upon which the jury based their verdicts.” Understood in context, the court’s comments do not indicate that it considered appellant’s choice to be tried by a jury as an aggravating factor. Rather, the comments merely indicate that the jury rejected appellant’s version of events and that the court believed the verdicts were supported by substantial evidence.
Appellant also contends that the upper term was selected solely on the nature of the offenses. Again, this argument is belied by the record. The trial court based its sentencing decision on appellant’s recidivism and on the fact that there was a minor in the car when he was arrested. The trial court specifically listed these three aggravating circumstances. Prior to setting forth the aggravating circumstances, the court stated that “the big problem of the case is that he, in fact, went out and committed another crime. And it was a serious crime. [Emphasis added.]” Thus, it was appellant’s recidivism -- his commission of new and serious felonies after having suffered a prior serious juvenile adjudication and two prior serious felony convictions -- that constituted the “big problem.” We agree with the trial court that felony drug possession and possession of a firearm by a felon are serious offenses.
Having considered the whole record, including the offenses and the offender, we conclude that selection of the upper term for count 2 is reasonable. The trial court did not act arbitrarily or capriciously; abuse of discretion does not appear.
D. Appellant waived appellate challenge to the trial court’s failure to state reasons supporting the consecutive sentencing decision; consecutive sentencing is permissible under the facts of this case.
Appellant contends the trial court erred by failing to state a reason supporting the consecutive sentencing decision. Although appellant phrases this challenge as an abuse of discretion, the crux of his argument is that the record lacks a valid reason supporting this discretionary sentencing choice. Appellant surmises that the trial court based this determination “on the trial court’s declaration that the offenses were not to be taken lightly.” However, this supposition is not supported by the record; the record does not indicate why the court decided to run count 4 consecutive to count 2.
The waiver rule announced in People v. Scott (1994) 9 Cal.4th 331, 353 (Scott), is settled:
“[T]he waiver doctrine should apply to claims involving the trial court’s failure to properly make or articulate its discretionary sentencing choices. Included in this category are cases in which … the court purportedly erred because it … failed to state any reasons or give a sufficient number of valid reasons.” (Ibid.)
Following and applying Scott, we conclude that because appellant did not interpose a timely objection to the failure to articulate one or more reasons supporting the consecutive sentencing choice, he waived appellate review of the sufficiency of the factual basis supporting this discretionary sentencing decision. (Scott, supra, 9 Cal.4th at p. 353.)
Furthermore, the trial court reasonably could have determined from the record before it that appellant’s act of transporting Ecstasy had a different objective from his act of possessing a firearm. The legislative aim in prohibiting drug possession is different than the legislative aim in preventing felons from possessing firearms. Therefore, imposition the consecutive sentencing decision is statutorily permissible (Cal. Rules of Court, rule 4.425 (a)(1)) and is not precluded by section 654. (See, e.g., People v. Arndt (1999) 76 Cal.App.4th 387, 397-398.) There is no evidence in the record indicating that the court misunderstood the scope of its discretion. Accordingly, we find neither abuse of discretion nor legal error.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Vartabedian, Acting P.J., Wiseman, J.