P. v. Andrade

Filed 4/2/08 P. v. Andrade CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Yuba)

----

A jury convicted defendant Benjamin Leon Andrade of possession of ammunition by a felon. (Pen. Code, 12316, subd. (b)(1).)^[1] On appeal, he urges us to reverse his conviction because there was insufficient evidence the ammunition was live. He is wrong, both factually and legally. We also reject his claim of sentencing error and affirm the judgment.

FACTS

Defendant was not at home when police officers, equipped with a warrant, searched his residence and found an assault rifle magazine in one room and a box of ammunition on the floor in another room. Two months later he told a member of the narcotics enforcement task force that he was holding the bullets for a friend and the magazine for another friend. The officer testified that, based on his 10 years of law enforcement experience and the fact that the primer was still intact and the bullets were still in their casings, the ammunition was real and the rounds were live.

Defendants girlfriend at the time the ammunition was seized testified she had a friends bullets in her backpack, which she left at defendants residence about a week before it was searched. Defendant testified he was unaware that the ammunition was in his house. He explained that he had told the police officer he was holding the ammunition and magazine for friends because he was under the impression that anything in his house was his responsibility.

DISCUSSION

I

Relying principally on two juvenile cases involving an entirely different crime prohibiting minors from possessing live ammunition ( 12101, subd. (b); In re Khamphouy S. (1993) 12 Cal.App.4th 1130, 1137-1138 (Khamphouy S.); In re Arcenio V. (2006) 141 Cal.App.4th 613, 616-617 (Arcenio V.)), defendant complains there is insufficient evidence to support his conviction for possession of ammunition by a felon. Section 12316, subdivision (b) provides, in pertinent part: (1) No person prohibited from owning or possessing a firearm . . . shall own, possess, or have under his or her custody or control, any ammunition or reloaded ammunition. [] (2) For purposes of this subdivision, ammunition shall include, but not be limited to, any bullet, cartridge, magazine, clip, speed loader, autoloader, or projectile capable of being fired from a firearm with a deadly consequence. Defendant argues there was no expert testimony that the ammunition was live and therefore no substantial evidence to support the conviction. Not so.

First, we point out that an assault rifle magazine was seized at defendants residence in addition to the box of ammunition. Defendant does not challenge this evidence, and thus, there is ample evidence to support a conviction under section 12316 for the unlawful possession of the magazine whether or not he also possessed the box of ammunition.

Second, defendants cases are inapposite. Khamphouy S., supra, 12 Cal.App.4th 1130 and Arcenio V., supra, 141 Cal.App.4th 613 both involved juveniles accused of possessing live ammunition, that is, bullets capable of being fired. Section 12101, subdivision (b), unlike section 12316, subdivision (b), expressly prohibits possession of live ammunition. In Khamphouy S. the court found ample circumstantial evidence that the ammunition was live, including a police officers testimony that he removed ammunition from a gun to make the bullets safe. (Khamphouy S., at p. 1135.) However, in Arcenio V. the court concluded the mere fact bullets were removed from a gun for booking purposes did not constitute sufficient evidence the ammunition met the statutory criterion that it be live. (Arcenio V., at p. 617.)

Here there was no statutory requirement that the ammunition be live.^[2] In any event, a police officer testified that, in his opinion, the bullets found in the house were live. Defendant objects that the jury was instructed on lay, not expert, testimony. His failure to request a jury instruction does not diminish the sufficiency of the evidence. Thus, the officers testimony would be sufficient even if live ammunition were construed to be a necessary element, a proposition we do not accept.

Defendant makes the absurd claim there is insufficient evidence he knew the bullets were in the house. His own admission to the police officer that he was holding the ammunition and magazine for friends constitutes more than substantial evidence to support the jury finding. The jury, of course, was free to reject his self-serving trial testimony that his admission was based on the misconception that he was responsible for anything in his residence. We must view the evidence in the light most favorable to the jurys verdict. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) His attack on the sufficiency of the evidence fails.

II

Defendant next asserts the trial court used the same fact to impose the upper term and to enhance his sentence. Section 1170, subdivision (b) proscribes the dual use of facts as follows: The court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law. The court observed that defendant had admitted a prior felony conviction and prison term pursuant to Penal Code 667.5(b), found he was not statutorily eligible for probation and there were no mitigating circumstances, and concluded, Prior convictions are certainly an aggravating factor, and Court believes the upper term of three years is the appropriate term, plus one year for 667.5. Defendant contends that using the prior convictions to aggravate his sentence while at the same time enhancing the sentence with his prison term constitutes a prohibited dual use of facts.

In People v. McFearson (2008) 158 Cal.App.4th 810 (McFearson), the Court of Appeal remanded the case for resentencing because, as defendant asserts here, using a prior conviction to aggravate a sentence while at the same time using a prior prison term based on the same conviction violates section 1170, subdivision (b) and California Rules of Court, rule 4.420(c). The Attorney General argues the record does not support an allegation that the court relied on the fact that defendant had served a prior prison term to aggravate his sentence. In the Attorney Generals view, aggravation is very different from enhancement, and while the prior prison term that commenced in 1996 supported the enhancement, defendant had at least eight other prior convictions spanning nearly two decades to support the aggravated term of three years.

We agree. The record does not support defendants notion that the court used the same conviction underlying the prior prison term to aggravate and to enhance his sentence. While the court may not have specifically excluded the conviction that gave rise to the prison term, defendants lengthy record provided a plethora of convictions upon which to aggravate the term. Thus, we are not confronted with the more difficult question posed by McFearson.

III

Defendant contends the courts imposition of the upper term violated his right to a jury trial as guaranteed by the Sixth Amendment to the United States Constitution. (Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi); Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely); Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham).) As pointed out in Apprendi, Blakely, and Cunningham, the Sixth Amendment jury trial guarantee does not apply to prior convictions that are used to impose greater punishment, and defendant concedes the court based its imposition of the upper term in part on his prior convictions. Defendant also acknowledges 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 fact finding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendants right to jury trial. (People v. Black (2007) 41 Cal.4th 799, 812 (Black).)

Defendant challenges his sentence to preserve his arguments for federal review. He correctly points out that we must follow the law as most recently articulated by our Supreme Court in Black. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Because the upper term was predicated, at least in part, on his prior convictions, there was no sentencing error.

DISPOSITION

The judgment is affirmed.

RAYE , J.

We concur:

SCOTLAND, P.J.

MORRISON , J.

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^[1] All further statutory references are to the Penal Code.

^[2] In his reply brief, defendant argues that as defined by section 12316, subdivision (b)(2), ammunition must be capable of being fired from a firearm with a deadly consequence and [t]hus, it follows that the statute requires live ammunition. However, the quoted definition is found at the end of the subdivision and is preceded immediately by the word projectile. Under the last antecedent rule of statutory construction, qualifying words, phrases and clauses are to be applied to the words or phrases immediately preceding and are not to be construed as extending to or including others more remote. [Citation.] (White v. County of Sacramento (1982) 31 Cal.3d 676, 680.) The language defendant relies on applies to the word projectile. Neither syntax nor logic would permit the language to be applied to earlier words, including not only bullet, but also magazine, clip, speed loader, and other items incapable of being fired from a firearm.