P. v. Moreno

Filed 10/16/07 P. v. Moreno CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Donald E. Rudloff, Judge. (Retired judge of the Mun. Ct. for San Diego North County Jud. Dist., assigned by the Chief Justice pursuant to art. VI, 6, of the Cal. Const.) Affirmed.

Keith H. Rutman, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Jeffrey J. Koch, Supervising Deputy Attorney General, and Scott C. Taylor, Deputy Attorney General, for Plaintiff and Respondent.

A jury convicted defendant of having ammunition while being a person who may not possess a firearm (Pen. Code, 12316, subd. (b)(1)) and misdemeanor possessing paraphanelia for ingesting a controlled substance. (Health & Saf. Code, 11364.) In bifurcated proceedings, the trial court found that defendant had suffered a strike prior and three priors for which he served prison terms. (Pen. Code, 667, subd. (e)-(i), 667.5, subd. (b).) He was sentenced to prison for nine years and appeals, claiming the trial court erroneously limited his argument to the jury, the evidence was insufficient to sustain the verdict, and sentencing error occurred. We reject his contentions and affirm.

Facts

On October 26, 2005, defendant, who was wanted for warrants, was arrested by a police officer. At the station house, the officer went through defendants pockets and found eight .22 caliber bullets, which the officer testified, without contradiction, were live and a used methamphetamine pipe. The officer testified that although no one checked to see if the bullets were capable of being fired, they did not appear to be eroded or spent and he would have loaded them into his service revolver for use.

Issues and Discussion

1. Limitation on Defense Counsels Argument to the Jury

Penal Code section 12316, subdivision (b)(2) provides that the ammunition which a person, who is prohibited from possessing a firearm, may not have include[s], but [is] not limited to, any bullet, cartridge, magazine, clip, speed loader, autoloader, or projectile capable of being fired from a firearm with a deadly consequence. During discussions concerning jury instructions, the prosecutor asked that the instruction on this subsection be amended to omit reference to any type of ammunition other than a bullet or cartridge. He contended that the modifier, capable of being fired from a firearm, with a deadly consequence applied only to the word projectile and not to the words bullet and cartridge. Defense counsel asserted that it applied to all the items enumerated in the subsection. The trial court disagreed with defense counsel, reasoning that magazines, clips, speed loaders, and autoloaders were devices used to facilitate the delivery of bullets into the firing chamber and were not, in and of themselves, capable of being fired from a firearm with deadly consequence. Therefore, it would be illogical for the modifier to have been intended to apply to them. Based on its conclusion, the trial court advised defense counsel not to include in his argument to the jury the contention that the bullets defendant possessed had to be live or capable of being fired. However, the court rejected the prosecutors proposed amendment to the instruction and instructed the jury, . . . ammunition means a bullet, a cartridge, magazine, a clip, speed loader, autoloader or projectile capable of being fired from a firearm with a deadly consequence.^[1]

Defendant here contends that the trial court erred in prohibiting him from arguing that the bullets had to be live or capable of being fired. His argument is based on the Wikipedia definition of bullet, which he asserts is synonymous with the term a projectile capable of being fired from a firearm. He also asserts that since the Wikipedia definition of bullet includes that it is often used loosely to refer to the combination of bullet, case, gunpowder and primer the trial court erred because it foreclosed defendant from arguing that the evidence did not establish that gunpowder and primer were present in the bullets he had. Because defendant never asserted below that he should have been able to make this argument, but was prohibited by the trial court from doing so, he waived the matter.

Whether a bullet within the meaning of Penal Code section 12316 must be capable of being fired from a firearm is an issue currently pending before the California Supreme Court. (People v. Brown, review granted June 13, 2007, S152225.) However, we are persuaded by the reasoning of the trial court that the modifier, capable of being fired from a firearm with a deadly consequence applies only to a projectile and not to any of the other items enumerated in subdivision (c), many of which, are not capable of being fired from a firearm at all. Moreover, as the People correctly point out, when the Legislature intends that the ammunition be live, it explicitly so states, such as in Penal Code section 12101, subdivision (b)(1), which prohibits a minor from possessing live ammunition. Therefore, we cannot agree with defendant that the trial court erred in prohibiting him from arguing that the bullets he had needed to be live or capable of being fired in order for him to be guilty.

2. Insufficiency of the Evidence

Based on his premise that Penal Code section 12316 requires that the bullets be live or capable of being fired, defendant argues there was insufficient evidence presented at trial that the bullets he had were either. However, we have already rejected his premise. Additionally, the police officer testified twice, without contradiction or impeachment, that the bullets defendant had were live.^[2]

3. Sentencing

a. Illegal Sentence

Defendant begins his argument, appearing to protest the trial courts refusal to grant him a continuance so he could file a writtenRomero^[3]motion.^[4] He then segways, using the illogical devise of contrasting the standards of review applicable to each issue, into an argument that the trial court made a prohibited dual use of the same fact to both enhance his sentence and impose the upper term. Immediately after citing two cases concerning dual use of facts, defendant cites a case concerning the denial of a continuance. He then asserts that defense counsel below failed to recognize and object to this dual use of facts, nor did he argue the impropriety of the trial courts imposition of the upper term for the felony. His ultimate conclusion is that [t]he trial courts actions all combined to result in an illegal sentence. Explaining, he states that by denying the continuance, the trial court deprived defense counsel the time [sic] needed to orient himself on the two sentencing issues, namely the dual use problem and the upper term issue. Thus, he suggests, it was the trial courts fault that his counsel below failed to object to the dual use or the Cunningham error.

The manner in which he presents his arguments is acutely unhelpful.^[5] Moreover, there is no need for us to speculate, as appellate counsel for defendant has done, as to what caused counsel to not object to either asserted errors below. We address each on its merits.^[6]

1. Cunningham^[7]

The trial court imposed the upper term, finding that defendant had a significant criminal record in that he had been in prison on one or more occasions^[8]and he committed

this crime while on parole.^[9] The court cited no mitigating factors.

In People v. Black (2007) 41 Cal.4th 799, the California Supreme Court held, as is relevant here, [I]mposition of the upper term does not infringe upon the defendants constitutional right to jury trial so long as one legally sufficient aggravating circumstance . . . is justified based upon the defendants record of prior convictions. []  . . .  [] The United States Supreme Court consistently has stated that the right to a jury trial does not apply to the fact of a prior conviction. [Citations.] [R]ecidivism . . . is a traditional, if not the most traditional, basis for increasing an offenders sentence. [Citation.] []  . . .  []  . . . [T]he [recidivist] exception . . . include[s] 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 [such as defendant having served a prior prison term]. [Citations.] [] The determination[] whether a defendant has suffered prior convictions, and whether those convictions are numerous or of increasing seriousness [citation], 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.] (Id. at pp. 816, 818-820.)

That defendant was on parole when he committed this offense and his prior record is significant because he had been to prison at least once, are facts which relate to his prior felony conviction, require examination of criminal court records, and involve the type of inquiry judges traditionally perform as part of the sentencing function. (Apprendi v. New Jersey (2000) 530 U.S. 466, 488 [120 S.Ct. 2348]; People v. McGee, supra, 38 Cal.4th at p. 709.) Therefore, they may be determined by the trial court without a jury. (See People v. Black, supra, at pp. 818-820.) Since one aggravating factor is sufficient for imposition of the upper term, two, as here, is more than sufficient.

2. Dual Use of Facts

Defendant contends that the same prior conviction was used to justify the upper term . . . and [to] impose an enhanced sentence under the Three Strikes law. Defendants strike prior was a 1987 conviction for robbery. However, it, and the other priors that resulted in prison terms for which Penal Code section 667.5(b) enhancements were imposed, were not the only occasions for defendant being in prison. Defendant was also imprisoned for a 1996 drug possession conviction which was not alleged as either a strike or as a Penal Code section 667.5(b) enhancement. Therefore, the record does not support defendants assertion that the sentencing court relied on the same prior in enhancing defendants sentence either under the Three Strikes Law or Penal Code section 667.5(b).

Disposition

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P.J.

We concur:

McKINSTER

J.

GAUT

J.

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^[1] The written instructions given the jury stated, Ammunition means a bullet, cartridge, magazine, clip, speed loader, autoloader, or projectile capable of being fired from a firearm with a deadly consequence. A copy of all the written instructions was provided the jury during deliberations.

^[2] We reject defendants contention that there was insufficient evidence because there was no proof that the bullets contained gunpowder, thus meeting Wikipedias definition of bullets. Wikipedia, although useful in many other contexts, is not a recognized source for determining legislative intent.

^[3]People v. Romero (1996) 13 Cal.4th 497. Defendant did make an oral motion with which, apparantly, appellate counsel for defendant does not find fault.

^[4] The verdicts were rendered and the trial court made its true findings on the priors on April 5, 2006. That day, defense counsel announced that he would file a Romero motion. Defendant personally asked to be sentenced beyond the 20 day statutory deadline. The trial court set the sentencing hearing for June 2, 2006, almost two months after the date defense counsel announced he would be filing a Romero motion. Defense counsel stated he received the probation report on May 18, 2006. On June 2, counsel unsuccessfully sought a continuance.

^[5] No doubt to avoid forfeiting the potential issue, the People respond, at length, to defendants consternation over being denied a continuance. For his part, other than noting the fact that the continuance was not granted thereby forcing him to make an oral rather than a written Romero motion, defendant does not appear to contend that the trial courts ruling in this regard requires our attention.

^[6] We do this despite the total lack of logical appeal of defendants argument that the failure of the trial court on June 2, 2006, to grant him a continuance so he could file a written Romero motion, after having received the probation report listing all the factors used by the sentencing court on May 18, rendered him unable to see the issue and make an argument concerning it at the sentencing hearing.

^[7]Cunningham v. California (2007) ___U.S. ___ [127 S.Ct. 856, 166 L.Ed. 2d. 856], (Cunningham).

^[8] Contrary to defendants contention, the trial court ultimately did not rely on a finding that his convictions were of increasing seriousness. Even though it addressed this particular aspect in its tentative ruling, it concluded, as a matter of fact, that defendants priors were of decreasing seriousness.

^[9] Although the court cited a number of other factors in its tentative ruling, it cited only these two in finally imposing the upper term.