P. v. Maestas.
Filed 11/20/07 P. v. Maestas 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
(Butte)
----
THE PEOPLE, Plaintiff and Respondent, v. LENNY ROSS MAESTAS, Defendant and Appellant. | C054856 (Super. Ct. No. CM014642) |
Defendant Lenny Ross Maestas was previously convicted by a jury of manufacturing methamphetamine. The jury also found true the allegation that defendant was personally armed with a firearm during the commission of the crime (the arming enhancement), and convicted defendant of being a felon in possession of a firearm.[1] Following his conviction, defendant admitted to having served a prior prison term pursuant to Penal Code section 667.5, subdivision (b),[2]and the court found true two strike allegations.
Defendant appealed and this court vacated his sentence, concluding there was insufficient evidence to support the trial courts findings as to the prior strike offenses. On remand, the trial court resentenced defendant to an aggregate term of 13 years and eight months in state prison, comprised of: the upper term for manufacturing methamphetamine, the upper term for the arming enhancement, and the upper term for being a felon in possession of a firearm. The court stayed all but eight months of defendants sentence for being a felon in possession and stayed an additional year for the prior prison term.
Defendant appeals his sentence, claiming the trial court violated his federal due process and jury trial rights by imposing the upper term on the principal conviction as well as the arming enhancement without submitting the aggravating factors to a jury. Defendant further contends the trial court erred by using the fact that he was armed with a firearm during the commission of the crime as both a sentencing enhancement and as an aggravating factor to impose the upper term. We find any error to be harmless and shall affirm.
I
DISCUSSION
Defendant contends the trial court erred in imposing the upper term on the principal conviction, as well as on the enhancement, because it did not submit the aggravating factors to a jury. Defendant is mistaken.
At resentencing, the trial court clearly stated its reasons for imposing the upper term on both the principal conviction and the arming enhancement: Aggravation outweighs mitigation, as shown by a preponderance of the evidence as discussed in the original probation report and in the supplemental report. And this also should be noted, that the defendant had 16 prior felony convictions. The crime involved being armed with a weapon. He has a history of being involved in numerous felony convictions, and he has served prior prison terms as well.
As an initial matter, pursuant to the recidivist exception of Apprendi,[3]Blakely,[4]and Cunningham,[5]the court may rely on prior convictions and prior prison terms in imposing the upper term, without submitting those factors to a jury. (People v. Black (2007) 41 Cal.4th 799, 818.) The only other aggravating factor relied on by the court was the fact that defendant was personally armed. That fact was indeed before the jury and the jury found it to be true beyond a reasonable doubt.[6] Accordingly, there was no violation of defendants Sixth Amendment rights.
Defendant also complains that the trial court used the same fact--that defendant was personally armed during the commission of the crime--both to enhance his sentence under section 12022, subdivision (c), and to impose the upper term on the principal count and the arming enhancement.
Generally, a court is prohibited from using a fact both to impose an aggravated term and enhance that sentence. ( 1170, subd. (b).) Here, defendant did not object when the trial court used the fact he was armed during the commission of the crime both to aggravate and enhance his sentence. Thus, he has forfeited the claim of error. (People v. Scott (1994) 9 Cal.4th 331, 348; People v. Steele (2000) 83 Cal.App.4th 212, 226.) Moreover, an objection would have been futile (People v. Price (1991) 1 Cal.4th 324, 387) because the court stated other valid reasons to impose the upper term, including defendants numerous prior convictions. Given the absence of any mitigating factors and the fact that only a single aggravating factor is required to impose the upper term (People v. Osband, supra, 13 Cal.4th at p. 728), there is no reasonable probability that defendant would have received a more favorable sentence absent the courts dual use of facts. (People v. Coleman (1989) 48 Cal.3d 112, 166 [improper dual use of the same fact for imposition of both an upper term and an enhancement does not necessitate resentencing if it is not reasonably probable that a more favorable sentence would have been imposed in the absence of the error].)
DISPOSITION
The judgment is affirmed.
SIMS , Acting P.J.
We concur:
MORRISON , J.
ROBIE , J.
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[1] The People request we take judicial notice of our own records in appellate case No. C048615, defendants first appeal from this conviction. The request is granted pursuant to Evidence Code sections 452, subdivision (d), and 459.
[2] Undesignated statutory references are to the Penal Code.
[3]Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435].
[4]Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403].
[5]Cunningham v. California (2007) ___ U.S. __ [166 L.Ed.2d 856].
[6] Even if this fact had not been submitted to the jury, the court could have imposed the upper term solely on the recidivist factors. (People v. Osband (1996) 13 Cal.4th 622, 728.)
