P. v. Hamdi
Filed 8/5/10 P. v. Hamdi CA4/1
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and parties from citing or relying on opinions not certified for publication or
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
SHAWKAT HAMDI,
Defendant and Appellant.
D055771
(Super. Ct.
No. SCN248379)
APPEAL from
a judgment of the Superior Court
of San Diego
County, Timothy M. Casserly, Judge. Affirmed as modified with directions.
A jury
convicted Shawkat Hamdi of possession of
cocaine for sale (Health & Saf. Code, § 11351); possession of methamphetamine for sale
(Health & Saf. Code, § 11378); possession
of marijuana for sale (Health & Saf. Code, § 11359); possession of
psilocybin mushrooms (Health & Saf. Code, § 11377, subd. (a)); possession
of cocaine while armed with a loaded firearm (Health & Saf. Code,
§ 11370.1, subd. (a)); possession of a firearm by a felon (Pen. Code,
§ 12021, subd. (a)(1))[1];
and possession of ammunition by a
felon (§ 12316, subd. (b)(1)).[2] The jury also found Hamdi was personally
armed with a firearm (§ 12022, subd. (c)) in connection with the cocaine
and methamphetamine sales counts and was armed with a firearm in connection
with the marijuana sales count (§ 12022, subd. (a)(1)). In a separate proceeding, Hamdi admitted he
had a prior serious/violent felony conviction (§ 667, subds. (b)-(i)) and
had served two prior prison terms (§ 667.5, subd. (b)).
The trial
court sentenced Hamdi to 14 years in prison.
On the possession of cocaine for sale count, the court imposed the upper
term of four years, doubled under the three strikes law. The court also imposed a four-year
enhancement for being personally armed with a firearm, bringing the sentence on
this count to 12 years.[3] An additional two years was imposed for the
two prior prison terms.
Hamdi
appeals, contending (1) the trial court misunderstood the scope of its
discretion to impose a low or middle term sentence, and (2) execution of the
sentence for possession of a firearm by a felon should have been stayed under
section 654.
FACTS
On January 28, 2008, a San Diego County
Sheriff's community service officer (CSO) responded to a citizen's complaint
about an abandoned black sports utility vehicle (SUV) on Blue
Grass Road in Vista. The CSO was about to place a 72-hour warning
tag on the SUV when he smelled marijuana.
The CSO looked inside the SUV and saw a large trash bag and a cut-open
box for soda cans, which appeared to contain marijuana. The CSO radioed for a deputy sheriff, who
agreed there was marijuana inside the SUV, and a narcotics detective was
summoned to the scene.
Detective
Tim Dinger photographed the SUV and called for a tow truck to unlock the
vehicle. Inside the SUV, Dinger found 18
bags containing 12.2 pounds of marijuana; a bag with 1,299 pills containing
methamphetamine and benzyl piperazine (BZP), a combination known as
"ecstasy"; a bag containing 21.66 grams of powder cocaine; and a bag
containing 78.78 grams of psilocybin mushrooms.
There also was a digital scale and two boxes of sandwich bags inside the
SUV. The detective also found a loaded
.44 caliber revolver and a loaded .40 caliber semiautomatic pistol in a plastic
bag underneath the drugs on the floor behind the driver's seat. Inside a leather jacket was the car's
registration in the name of Freddie Carillo, and a letter addressed to a parole
agent regarding Hamdi.
Dinger ran
Hamdi's name through law enforcement
databases and found an Oceanside
address for him. Dinger followed Hamdi
to an address on Cielita Linda Drive
in Vista, one-half mile from the SUV. Deputies arrested Hamdi on an outstanding
parole violation warrant and searched the Vista
residence he shared with his fiancée and her nine-year-old daughter. In the bathroom connected to the master
bedroom, deputies found a bag containing .22 grams of cocaine, a small bag of
marijuana, a marijuana smoking pipe and a marijuana water pipe. The master bedroom door had a deadbolt lock.
Hamdi's
left thumbprint was on one of the firearms found in the SUV and a second
fingerprint (right index finger) was on a plastic bag found in the SUV.
DISCUSSION
I
At the sentencing hearing, the trial court noted
there were several factors in aggravation and no factors in mitigation. The court then concluded, "So at this
point the court must impose the upper term."
Because of
the court's use of the word "must," Hamdi contends his case should be
remanded for resentencing because the trial court misunderstood the scope of
its discretion to impose a lower or middle term even if the aggravating factors
outweighed mitigating factors.
Under California's
determinate sentencing law, a sentencing court must exercise its discretion to
select a term within the range (lower, middle, or upper) prescribed for a
specific offense. (§ 1170, subds.
(a)(3), (b); Cal. Rules of Court,[4]
rule 4.420(a).) The court's discretion
is informed by its evaluation of factors in mitigation and aggravation. (§ 1170, subd. (b).) These sentencing factors are weighed by the
sentencing judge to determine the prison term within the offense's sentencing
range. (People v. Scott (1994) 9 Cal.4th 331, 349; rule 4.420 (b).) Section 1170, as amended in 2007, provides
that the choice of the appropriate term "shall rest within the sound
discretion of the court. . . .
The court shall select the term which, in the court's discretion, best serves
the interests of justice."
(§ 1170, subd. (b).)[5]
It is
presumed the trial court was aware of and exercised its sentencing discretion,
and the burden is on an appellant to demonstrate otherwise. (
People v. Tang (1997) 54 Cal.App.4th 669, 677; People v. Mosley (1997) 53 Cal.App.4th 489, 496.)
We acknowledge
that a court unaware of the scope of its discretionary powers cannot exercise
the informed sentencing discretion to which a defendant is entitled. (People
v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8.)[6] A review of the record shows that did not
happen here.
Hamdi's
argument, based solely on the trial court's use of the word "must,"
takes the court's comment out of context and ignores the prosecutor's
statements as well as the documents submitted by the prosecutor and the
probation department.[7] The probation report noted there were six
possible circumstances in aggravation and no possible circumstances in
mitigation. Nonetheless, the probation
report recommended the middle term be imposed.
The probation report stated: "In careful consideration of the above
factors, the imposition of the middle term appears warranted as it would
provide adequate punishment for the defendant." The probation report recommended a total
sentence of 12 years. The prosecutor
objected to the probation department's recommendation of 12 years and offered
two alternatives: a sentence of 15
years, and a sentence of 18 years eight months.
We conclude
the trial court, which had before it sentencing recommendations to use the
middle term even though there were numerous factors in aggravation and no
factor in mitigation, was aware it could impose the middle term. This record convinces us that the court
imposed the upper term because it believed the upper term was the appropriate
disposition considering the gravity of the offense, Hamdi's criminal history
and his poor performance on parole, including the fact these crimes were
committed while he was on parole.
We conclude
the trial court's statement that it "must" impose the upper term was
no more than a statement that on the record before it, including the fact that
the aggravating factors far outweighed the mitigating factors, the court found
imposition of the upper term warranted.
We find the trial court's use of the word "must" did not
reflect a misunderstanding of its authority
under the sentencing rules.
II
Based on
the handguns found in the SUV, the jury convicted Hamdi of firearm possession
by a felon and also found true the allegation that Hamdi was armed with a
firearm while possessing cocaine. Hamdi
contends the trial court erred by imposing a concurrent sentence for his
conviction of firearm possession by a felon.
Hamdi maintains the trial court should have stayed this sentence under
section 654 because the felon possession of a firearm was indistinguishable from
the allegation he was armed with a firearm while possessing cocaine.
The
Attorney General acknowledges Hamdi is correct.
Section 654, subdivision (a), provides:
"An act or omission that is punishable in different ways by
different provisions of law shall be punished under the provision that provides
for the longest potential term of imprisonment, but in no case shall the act or
omission be punished under more than one provision." Rather than imposing a concurrent sentence
for possessing a firearm by a felon, the court should have stayed the sentence
under section 654.
DISPOSITION
The trial
court is ordered to stay, pursuant to section 654, the concurrent sentence
imposed for firearm possession by a felon. The court shall amend the abstract
of
judgment accordingly, and forward the amended abstract of
judgment to the California
Department of
Corrections and Rehabilitation.
In all
other respects, the judgment is affirmed.
McDONALD, Acting P. J.
WE CONCUR:
McINTYRE,
J.
O'ROURKE,
J.
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[1] Statutory references are to the Penal
Code unless otherwise specified.
[2] With respect to another incident, the
jury acquitted Hamdi of possession of cocaine and endangering the health of a
child.
