Opinion
NOT TO BE PUBLISHED
Super. Ct. No. SF101736A
BLEASE, Acting P. J.
A jury found defendant Sergio Ochoa guilty of kidnapping (Pen. Code, § 207, subd. (a) -- count 1), false imprisonment (§ 236 -- count 2), assault with a firearm (§ 245, subd. (a)(2) -- count 3), attempting to evade a peace officer (Veh. Code, § 2800.2 -- count 5), misdemeanor battery (§ 242 -- count 6), transportation of methamphetamine (Health & Saf. Code, § 11379 -- count 7), possession of methamphetamine while armed with a loaded, operable firearm (id., § 11370.1, subd. (a) -- count 8), misdemeanor trespass (§ 602.5, subd. (b) -- count 9), possession of cocaine (Health & Saf. Code, § 11350, subd. (a) -- count 10), misdemeanor resisting arrest (§ 148 -- count 11), and being a felon in possession of a firearm (§ 12021, subd. (a)(1) -- count 12). The jury also found true allegations defendant personally used a shotgun during the commission of the kidnapping (§ 12022.53, subd. (b)), false imprisonment, and assault offenses (§ 12022.5, subd. (a)); was armed with a firearm during the commission of the transportation of methamphetamine offense (§ 12022, subd. (c)); and was released on bail when he committed the kidnapping, false imprisonment, assault, evading, transportation of methamphetamine, and possession of methamphetamine with a loaded, operable firearm offenses (§ 12022.1). In a bifurcated proceeding, the trial court found true allegations defendant had three prior narcotics convictions within the meaning of Health and Safety Code section 11370.2, subdivision (c).
Unless otherwise specified further statutory references are to the Penal Code.
The jury found defendant not guilty of infliction of corporal injury to a former cohabitant (§ 273.5, subd. (a) -- count 6) but guilty of the lesser included offense of misdemeanor battery.
The jury found defendant not guilty of making criminal threats (§ 422 -- count 4).
Defendant was sentenced to an aggregate term of 33 years in state prison, consisting of five years (the middle term) for kidnapping, plus 10 years (the upper term) for the arming enhancement and two years for the on bail enhancement; a consecutive eight months (one-third the middle term) for evading a peace officer; a consecutive one year (one-third the middle term) for transportation of methamphetamine, plus three full, consecutive three year terms for each prior narcotics conviction, plus four years (the middle term) for the arming enhancement; a consecutive eight months (one-third the middle term) for possession of cocaine, and a consecutive eight months for being a felon in possession of a firearm.
The court stayed defendant’s sentence for false imprisonment, assault, and possession of methamphetamine (§ 654); and the on bail enhancements on the evading and transportation of methamphetamine offenses. The court sentenced defendant to time served for misdemeanor battery and trespass and to a concurrent one year term for misdemeanor resisting arrest.
Defendant appeals, contending there is insufficient evidence to support his convictions on counts 7 (transportation of methamphetamine) and 8 (possession of methamphetamine while armed with a loaded, operable firearm). He also raises several issues related to his sentencing. Among other things, defendant claims the trial court erred in imposing a full, consecutive four year term for the arming enhancement on count 7. (§ 1170.1, subd. (a).) We shall conclude that substantial evidence supports defendant’s convictions on counts 7 and 8. We shall further conclude that the trial court erred in imposing a full, consecutive four year term for the arming enhancement on count 7, modify the judgment to reduce defendant’s sentence for that enhancement to 16 months (one-third the middle term), and affirm the judgment as modified.
FACTUAL AND PROCEDURAL BACKGROUND
We summarize the pertinent facts in the light most favorable to the judgment, drawing all reasonable inferences in support thereof. (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 787.)
We do not summarize the facts underlying defendant’s conviction for possession of cocaine because defendant does not challenge his conviction for that offense and the facts related thereto have no bearing on the issues raised in this appeal.
I. The Prosecution
In February 2006, defendant and Tomi Rigas began a sexual relationship and immediately moved in together. At the time, Rigas was 17 years old and had a one-year-old daughter from a prior relationship. Rigas described her relationship with defendant as “intense” and “very violent.” Defendant and Rigas did drugs together. While they were together, defendant purchased a shotgun. Rigas saw him with the shotgun “on a daily basis” while they lived together.
On July 6, 2006, Rigas left defendant because she wanted to turn her life around, and she was afraid she would be harmed or killed if she stayed.
On July 16, 2006, Rigas’ sister drove Rigas and Rigas’ daughter to the home of Leobardo Cabello, the father of Rigas’ daughter. When they arrived, they spoke to Cabello’s brother in the front yard. As they did so, Rigas saw defendant drive by in a black Blazer that was owned by Rigas. Defendant had a shotgun and began cursing and threatening Rigas. Rigas ordered everyone to go inside Cabello’s house and called 9-1-1. Defendant parked the Blazer on the sidewalk in front of Cabello’s house. Fearing for the safety of her daughter and others, Rigas went outside. She approached the passenger side of the Blazer and asked defendant to leave. Defendant jumped out of the Blazer with the shotgun, grabbed Rigas around the waist, and dragged her into the vehicle. In the process, defendant struck Rigas in the side with the shotgun. Once Rigas was inside the Blazer, defendant repeatedly threatened to kill her. When defendant climbed into the driver’s seat, he placed the shotgun on his lap with the barrel pointed at Rigas. Defendant drove off with Rigas inside the vehicle. Soon thereafter, the police attempted to stop the Blazer. Defendant threw the shotgun onto Rigas’ lap and “his driving became more crazy.” Rigas threw the shotgun behind her and covered it up with a pair of pants. She concealed the shotgun because she was used to trying to protect defendant. Meanwhile, defendant proceeded at a high rate of speed and made a number of turns. Fearing they would crash, Rigas told defendant to run, and he jumped out of the Blazer while it was still moving and took off on foot. Rigas moved into the driver’s seat and stopped the vehicle.
Police officers asked Rigas where the shotgun was, and she showed them. She also showed them where defendant had hidden methamphetamine -- in a compartment underneath the horn cap on the steering wheel. She knew it was there because prior to leaving defendant, she was with him “24/7” and “knew where everything was.” She “assisted his lifestyle,” and thus, knew where he hid the drugs. After she left him on July 6, 2006, she did not have access to the Blazer.
After jumping from the Blazer, defendant entered an apartment through an open bedroom window. The occupant of the apartment, Georgina Rodriguez, did not know defendant and was startled when she saw him come out of her bedroom. Defendant told Rodriguez that he was running from the police. She asked him to leave, and he did. Defendant stepped on Rodriguez’s bed when he entered the apartment, leaving a mess of leaves, grass, and dust. When Rodriguez later went into the bedroom to straighten up, she noticed a “bag of drugs” under her bed. She immediately telephoned the police, and an officer came and picked up the bag. The drugs did not belong to her.
The package of drugs recovered from the steering wheel contained five small baggies. Two of the baggies were tested: one contained.26 grams of methamphetamine; and the other contained.04 grams of methamphetamine. The package found in Rodriguez’s bedroom contained 3.22 grams of methamphetamine.
The shotgun found in the Blazer was operable and had a shell in the chamber and two shells in the magazine.
It was stipulated that defendant had previously been convicted of a felony prohibiting him from possessing a firearm. It was also stipulated that on December 21, 1987, defendant was convicted of possession of a controlled substance for sale.
II. The Defense
Defendant testified on his own behalf. He claimed to have thrown Rigas out of his house six or seven days before the July 16, 2006, incident because she wanted him “to cut her up and beat her up and have sex.”
On the day of the incident, he was on his way to a bar when he saw Rigas and her daughter at Cabello’s home. He had previously told Rigas not to bring the child around Cabello because Cabello had abused the child when she was an infant. He loved the child and felt that she was his because he had supported her since she was three months old.
Rigas ran inside with the child, and defendant began honking his horn. Defendant heard the child crying “hella loud” and attempted to go inside the house. He told Rigas, “I want my baby.” Rigas grabbed defendant and suggested they go to defendant’s house to talk. Rigas then climbed into the Blazer.
When the police attempted to stop the Blazer, Rigas told defendant to “step on the gas because I got warrants.” Rigas also told defendant to run and that she would take the steering wheel.
On cross-examination, defendant denied having the shotgun when he got out of the Blazer or even knowing that it was in the Blazer. He also denied the methamphetamine in the steering wheel belonged to him or that he dropped anything in Rodriguez’s bedroom. He was not familiar with methamphetamine; he only used heroin and cocaine. He attempted to hide from police because he had a warrant. He acknowledged Rigas did not have access to the Blazer for six or seven days prior to the incident.
DISCUSSION
I
Defendant contends there is insufficient evidence to support his convictions for transportation of methamphetamine (count 7) and possession of methamphetamine while armed with a loaded, operable firearm (count 8). We disagree.
In addressing a challenge to the sufficiency of the evidence, we view the entire record in the light most favorable to the judgment and presume in support of the judgment the existence of every fact that the jury reasonably could deduce from the evidence. (People v. Golde (2008) 163 Cal.App.4th 101, 108.)
“Transportation of a controlled substance is established by carrying or conveying a usable quantity of a controlled substance with knowledge of its presence and illegal character.” (People v. Meza (1995) 38 Cal.App.4th 1741, 1746.)
The prosecution argued defendant was guilty of transporting the methamphetamine found in the Blazer and Rodriguez’s apartment. Defendant asserts there is insufficient evidence he knew there was methamphetamine present in either location. In doing so, he cites a series of cases that hold that a defendant’s mere presence in a place where narcotics are found is insufficient to establish the defendant possessed the narcotics. (See People v. Stanford (1959) 176 Cal.App.2d 388, 391; People v. Fernandez (1959) 172 Cal.App.2d 747, 754-755; People v. Tabizon (1958) 166 Cal.App.2d 271, 273; People v. Hancock (1957) 156 Cal.App.2d 305, 309; People v. Antista (1954) 129 Cal.App.2d 47, 52.)
Unlike those cases, however, the evidence presented in support of the transportation of methamphetamine offense in this case was not limited to defendant’s mere presence in the Blazer or the apartment. With respect to the Blazer, Rigas testified that during the time she and defendant were together, defendant stored drugs inside the steering wheel. The Blazer had been in defendant’s possession for the past 10 days, during which time Rigas did not have access to it. Based on this evidence, the jury reasonably could infer that defendant knew of the presence of the methamphetamine found in the steering wheel. With respect to Rodriguez’s apartment, Rodriguez discovered the methamphetamine under her bed shortly after defendant entered her bedroom while being chased by police. The methamphetamine did not belong to Rodriguez. Based on this evidence, the jury reasonably could infer that defendant possessed the methamphetamine when he entered Rodriguez’s bedroom and hid it under her bed so that it would not be discovered if he was apprehended by police. Accordingly, defendant’s contention that insufficient evidence supports his conviction for transportation of methamphetamine fails.
Turning to defendant’s conviction for possession of methamphetamine while armed with a loaded, operable firearm, defendant contends there is insufficient evidence to support his conviction for that offense for the same reason he contends there is insufficient evidence to support his conviction for the transportation offense -- there is no evidence he knew methamphetamine was present in the steering wheel or the apartment. As previously discussed, that contention is without merit.
With respect to the methamphetamine found in the apartment, defendant also claims that “it is undisputed that [he] did not have a weapon for offensive or defensive use during the course of any asserted possession, inasmuch as the firearm was discovered hidden in the Blazer and not at the Rodriguez apartment, where the drugs were located.” Thus, he asserts, any inference that he possessed the methamphetamine found in the apartment while “in proximity to the firearm” or that he “had knowledge of the firearm’s presence within his close proximity” would be speculative. We are not persuaded.
Health and Safety Code section 11370.1, subdivision (a) makes it a crime to “unlawfully possess[] any amount of a substance containing... methamphetamine... while armed with a loaded, operable firearm....” Here, Rigas testified defendant had the shotgun when he drove by Cabello’s home. Thus, defendant necessarily knew of the shotgun’s presence in the Blazer. As discussed above, the jury reasonably could conclude defendant placed the methamphetamine in Rodriguez’s apartment. (Ante, at p. 9.) If so, the jury also reasonably could infer that he had the methamphetamine while he was in the Blazer and that he took it with him when fleeing from the police. Accordingly, substantial evidence supports a finding defendant possessed the methamphetamine found in the apartment while armed with the shotgun.
II
Defendant next contends the trial court erred in imposing full, consecutive terms for the arming and prior conviction enhancements on the transportation of methamphetamine offense. He argues that pursuant to section 1170.1, subdivision (a), the court was required to impose “one-third of the term imposed....” The People concede the error with respect to the arming enhancement, but assert that imposition of full, consecutive terms was proper as to the prior conviction enhancements. The People are correct.
Defendant was convicted of violating Health and Safety Code section 11379, transportation of a controlled substance, and sentenced to a subordinate term of one year (one-third the middle term), plus a full, consecutive four years (the middle term) for being personally armed with a firearm during the commission of that offense pursuant to section 12022, subdivision (c), and three full, consecutive three year terms for three prior narcotics convictions pursuant to Health and Safety Code section 11370.2.
Section 1170.1, subdivision (a) governs the calculation and imposition of a determinate sentence when, as here, a defendant has been convicted of multiple felonies. (People v. Williams (2004) 34 Cal.4th 397, 402.) It provides in pertinent part: “Except as otherwise provided by law, and subject to Section 654, when any person is convicted of two or more felonies... and a consecutive term of imprisonment is imposed under Sections 669 and 1170, the aggregate term of imprisonment for all these convictions shall be the sum of the principal term, the subordinate term, and any additional term imposed for applicable enhancements for prior convictions, prior prison terms, and Section 12022.1. The principal term shall consist of the greatest term of imprisonment imposed by the court for any of the crimes, including any term imposed for applicable specific enhancements. The subordinate term for each consecutive offense shall consist of one-third of the middle term of imprisonment prescribed for each other felony conviction for which a consecutive term of imprisonment is imposed, and shall include one-third of the term imposed for any specific enhancements applicable to those subordinate offenses.” (Italics added.)
“As used in Section 1170.1, the term ‘specific enhancement’ means an enhancement that relates to the circumstances of the crime. It includes, but is not limited to, the enhancements provided in Section[]... 12022... of this code....” (§ 1170.11)
Section 1170.11 states in its entirety: “As used in Section 1170.1, the term ‘specific enhancement’ means an enhancement that relates to the circumstances of the crime. It includes, but is not limited to, the enhancements provided in Sections 186.10, 186.11, 186.22, 186.26, 186.33, 192.5, 273.4, 289.5, 290.4, 290.45, 290.46, 347, and 368, subdivisions (a) and (b) of Section 422.75, paragraphs (2), (3), (4), and (5) of subdivision (a) of Section 451.1, paragraphs (2), (3), and (4) of subdivision (a) of Section 452.1, subdivision (g) of Section 550, Sections 593a, 600, 667.8, 667.85, 667.9, 667.10, 667.15, 667.16, 667.17, 674, 675, 12021.5, 12022, 12022.2, 12022.3, 12022.4, 12022.5, 12022.53, 12022.55, 12022.6, 12022.7, 12022.75, 12022.8, 12022.85, 12022.9, 12022.95, 12072, and 12280 of this code, and in Sections 1522.01 and 11353.1, subdivision (b) of Section 11353.4, Sections 11353.6, 11356.5, 11370.4, 11379.7, 11379.8, 11379.9, 11380.1, 11380.7, 25189.5, and 25189.7 of the Health and Safety Code, and in Sections 20001 and 23558 of the Vehicle Code, and in Sections 10980 and 14107 of the Welfare and Institutions Code.”
Section 12022, subdivision (c) states in part: “[A]ny person who is personally armed with a firearm in the commission of a violation... of Section... 11379... of the Health and Safety Code, shall be punished by an additional and consecutive term of imprisonment in the state prison for three, four, or five years.”
Because the enhancement provided in section 12022, subdivision (c) is among the “specific enhancements” included in section 1170.1, subdivision (a), defendant should have been sentenced to 16 months (one-third the middle term), and not four years, for the arming enhancement on count 7. We shall modify the judgment accordingly.
Turning to the prior conviction enhancements, Health and Safety Code section 11370.2, subdivision (c), provides in pertinent part: “Any person convicted of a violation of... 11379 with respect to any substance containing a controlled substance specified in paragraph (1) or (2) of subdivision (d) of Section 11055 shall receive, in addition to any other punishment authorized by law, including Section 667.5 of the Penal Code, a full, separate, and consecutive three-year term for each prior felony conviction of... Section 11351, 11351.5, 11352, 11378, 11378.5, 11379, 11379.5, 11379.6, 11380, 11380.5, or 11383, whether or not the prior conviction resulted in a term of imprisonment.” (Italics added.)
The prior conviction enhancement contained in Health & Safety Code section 11370.2, subdivision (c) is not among those specified in section 1170.1, subdivision (a). While the list set forth therein is not exclusive, the enhancement nevertheless is not subject to section 1170.1, subdivision (a)’s “one-third” limit because it does not “relate[] to the circumstances of the crime.” (§ 1170.11.) While the enhancements were triggered by defendant’s violation of Health & Safety Code section 11379 (transportation of a controlled substance), they do not relate to the circumstances of that offense. Rather, they relate to defendant’s status as a recidivist. (People v. Gokey (1998) 62 Cal.App.4th 932, 936 [observing that Health and Safety Code section 11370.2 imposes additional punishment “for the status of the offender, and not the acts or omissions underlying the current offense”].)
Health and Safety Code section 11370.2, subdivision (c)’s proviso that any person convicted of a qualifying offense shall receive “a full, separate, and consecutive three-year term for each [qualifying] prior felony conviction” further supports our conclusion. (Italics added.) Courts have found similar language constitutes an exception to the sentencing limitations set forth in section 1170.1, subdivision (a). In People v. Tassell (1984) 36 Cal.3d 77, 90, overruled on other grounds in People v. Ewoldt (1994) 7 Cal.4th 380, 401, the court considered the purpose of section 1170.1, subdivision (h) (formerly subdivision (i)), which states: “For any violation of an offense specified in Section 667.6, the number of enhancements that may be imposed shall not be limited, regardless of whether the enhancements are pursuant to this section, Section 667.6, or some other provision of law. Each of the enhancements shall be a full and separately served term.” (Italics added.) The court observed that “[t]he obvious purpose of subdivision [h] is to nullify certain limitations set forth in other parts of section 1170.1 regarding the number and length of enhancements that may be added to particular counts.” (People v. Tassell, supra, 36 Cal.3d at p. 90.)
From 1982 until 1997 subdivision (h) was labeled subdivision (i). At the time People v. Tassell was decided, section 1170.1, subdivision (h) stated in pertinent part: “Each of such enhancements shall be a full and separately served enhancement and shall not be merged with any term or with any other enhancement.” (36 Cal.3d at p. 90.)
In People v. Mosley (2007) 155 Cal.App.4th 313, 327-328, the court held that the trial court improperly sentenced a defendant to a full, consecutive term for possession of a weapon in custody (§ 4502) and that the trial court should have imposed one-third the middle term pursuant to section 1170.1, subdivision (a). In doing so, the court noted that while section 4502 required the defendant be sentenced consecutively on the weapon possession count, “unlike section 667.6, subdivision (c) or (d), there is no provision for full-term consecutive sentencing on multiple counts....” (Id. at p. 328.)
Section 667.6, subdivisions (c) and (d) provide in part: “(c) In lieu of the term provided in Section 1170.1, a full, separate, and consecutive term may be imposed for each violation of an offense specified in subdivision (e) if the crimes involve the same victim on the same occasion.... [¶] (d) A full, separate, and consecutive term shall be imposed for each violation of an offense specified in subdivision (e) if the crimes involve separate victims or involve the same victim on separate occasions.” (Italics added.)
The trial court did not err in imposing a full, consecutive term for each prior conviction enhancement on count 7.
III
Defendant contends the trial court erred in failing to stay his sentence for possession of a firearm by a felon (count 12) pursuant to section 654 because he had already been punished for using a firearm with the 10-year firearm enhancement imposed in connection with the kidnapping offense (count 1). We conclude that separate punishment for the possession of a firearm offense was permissible under the particular circumstances of this case.
Defendant was convicted of, among other things, kidnapping with personal use of a firearm (count 1), and possession of a firearm by a felon (count 12). He was sentenced to five years for kidnapping, plus 10 years for the firearm enhancement pursuant to section 12022.53, subdivision (b), and a consecutive eight months for possession of a firearm by a felon.
Courts of Appeal are split as to whether section 654 applies to sentence enhancements. (See People v. Arndt (1999) 76 Cal.App.4th 387, 394, and cases cited therein.) While our Supreme Court “has never held that section 654 applies to sentence enhancements” (People v. Rodriguez (2009) 47 Cal.4th 501, 507), in People v. Coronado (1995) 12 Cal.4th 145, 158, it concluded that section 654’s prohibition against multiple punishments for a single “act or omission” is inapplicable to enhancements based on the nature of the offender. An enhancement under section 12022.53, subdivision (b) for personally using a firearm in the commission of the offense necessarily is based on the nature of the offense. We need not decide whether section 654 applies to sentence enhancements based on the nature of the offense, however, because, as we shall explain, even if it does, the trial court did not err in failing to stay defendant’s sentence on count 12.
Section 654, subdivision (a) provides in pertinent part: “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.” “Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.” (Neal v. State of California (1960) 55 Cal.2d 11, 19.) Whether crimes constitute an indivisible course of conduct is a question of fact for the trial court, and its findings will not be disturbed on appeal if they are supported by substantial evidence. (People v. Osband (1996) 13 Cal.4th 622, 730.)
Possession of a firearm may be separately punished from use of the firearm “where the evidence shows a possession distinctly antecedent and separate from” the offense in which the firearm was used. (People v. Bradford (1976) 17 Cal.3d 8, 22.) For example, multiple punishment is proper where “the evidence shows that the defendant arrived at the scene of his or her primary crime already in possession of the firearm.” (People v. Jones (2002) 103 Cal.App.4th 1139, 1145.) Such is the case here.
Rigas testified that she was with defendant when he purchased the shotgun and had seen defendant with the shotgun many times prior to July 16, 2006. She further testified that defendant brandished the shotgun when he drove by Cabello’s home and had it with him when he dragged her into the Blazer. Based on such evidence, the court reasonably could infer that defendant arrived at Cabello’s home (the scene of the kidnapping) already in possession of the shotgun. Indeed, on this record, any other interpretation would be patently absurd. Accordingly, the evidence supports an inference that defendant harbored separate intents in possessing the shotgun and using it in the commission of the kidnapping. (See People v. Jones, supra, 103 Cal.App.4th at p. 1147.)
The trial court did not err in failing to stay defendant’s sentence on count 12.
In his reply brief, defendant asserts that “[i]t is apparent by the court’s pronouncement that its decision was not based on an analysis of the pertinent section 654 factors....” But defendant may not raise arguments, or provide the requisite supporting analysis, for the first time in the reply brief without good cause. (People v. Baniqued (2000) 85 Cal.App.4th 13, 29.) In any event, having reviewed the court’s pronouncement of judgment, we conclude defendant’s assertion is without merit.
IV
Defendant contends the trial court erred in failing to stay his sentence for being personally armed with a firearm in the commission of the transportation of methamphetamine offense (count 7) pursuant to section 654 because his “possession of the firearm [in the commission of that offense] was indivisible from its use in committing the charged kidnapping [count 1]....” We disagree.
As set forth above, “If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.” (Neal v. State of California, supra, 55 Cal.2d at p. 19.) If, on the other hand, “he entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.” (People v. Beamon (1973) 8 Cal.3d 625, 639; see also People v. Jones, supra, 103 Cal.App.4th at p. 1143.) As previously noted, we shall assume for purposes of this appeal that section 654 applies to sentence enhancements that are based on the nature of the offense.
Viewing the evidence most favorably to the verdict as we must, we cannot say that there was insufficient evidence to support the trial court’s implied finding that defendant had different objectives in possessing the shotgun while transporting the methamphetamine and using it in the commission of the kidnapping. As detailed above, substantial evidence supports a finding that defendant possessed both the methamphetamine and the shotgun when he arrived at Cabellos’ home in the Blazer. (Ante, at pp. 10-11.) Moreover, Rigas testified that defendant used the weapon in the course of the kidnapping. Thus, the trial court reasonably could infer that defendant’s objective in possessing the firearm in the car with the methamphetamine was separate and distinct from his objective in using it in the commission of the kidnapping. Accordingly, the trial court was not required to stay execution of defendant’s sentence on the section 12022, subdivision (c) enhancement imposed in connection with count 7.
V
Defendant next contends the trial court erred in finding true one of the prior conviction allegations under Health and Safety Code section 11370.2, subdivision (c). In doing so, he presumes that one of the court’s true findings was based on a prior conviction for violating Health and Safety Code section 11350, which is not a qualifying offense under Health & Safety Code section 11370.2. The People respond that defendant is “factually incorrect,” and that the evidence supports the court’s findings. The People are correct.
Pursuant to Health and Safety Code section 11370.2, subdivision (c), any person convicted of transportation of methamphetamine in violation of Health and Safety Code section 11379 shall be sentenced to “a full, separate, and consecutive three-year term for each prior felony conviction of... [Health and Safety Code] Section 11351... [or] 11352....”
In this case, defendant was convicted of transportation of methamphetamine in violation of Health and Safety Code section 11379. As the People correctly note, the information alleged that defendant had three prior drug convictions within the meaning of Health & Safety Code section 11370.2, subdivision (c) -- two for violating Health and Safety Code section 11351 (possession of narcotics for sale) and one for violating Health and Safety Code section 11352 (transportation or sale of narcotics.) Health and Safety Code sections 11351 and 11352 are qualifying offenses under Health and Safety Code section 11370.2, subdivision (c). (Health & Saf. Code, § 11370.2, subd. (a).)
The section 969b packet submitted to the trial court included abstracts of judgment referring to two convictions under Health and Safety Code section 11351. In addition, the prosecution introduced into evidence a certified copy of defendant’s rap sheet reflecting a prior conviction under Health and Safety Code section 11352. Accordingly, there was ample evidence to support the trial court’s true findings on the three prior conviction allegations under Health and Safety Code section 11370.2, subdivision (c).
VI
Lastly, defendant contends imposition of the upper term (10 years) for the firearm enhancements imposed pursuant to section 12022.5 for false imprisonment (count 2) and assault with a firearm (count 3) violates his federal constitutional rights to jury trial, to proof beyond a reasonable doubt, and to due process as those rights have been interpreted by the United States Supreme Court in 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), and Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856] (Cunningham). Again, we disagree.
In Apprendi, supra, 530 U.S. 466 [147 L.Ed.2d 435], the United States Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (Id. at p. 490 [147 L.Ed.2d at p. 455].)
In Blakely, supra, 542 U.S. 296 [159 L.Ed.2d 403], the Supreme Court applied the rule of Apprendi to invalidate a state court sentence, explaining that “the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” (Id. at p. 303 [159 L.Ed.2d at p. 413], italics omitted.)
In Cunningham, supra, 549 U.S. 270 [166 L.Ed.2d 856], the Supreme Court applied Apprendi and Blakely to California’s then existing determinate sentencing law, which provided that “the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime.” (Former § 1170, subd. (b).) The court held that by “assign[ing] to the trial judge, not to the jury, authority to find the facts that expose a defendant to an elevated ‘upper term’ sentence,” California’s determinate sentencing law “violates a defendant’s right to trial by jury safeguarded by the Sixth and Fourteenth Amendments.” (Cunningham, supra, at p. 274 [166 L.Ed.2d at p. 864], overruling People v. Black (2005) 35 Cal.4th 1238 (Black I) on this point.)
“The California Legislature quickly responded to the Cunningham decision. Senate Bill No. 40 (2007-2008 Reg.Sess.) (Senate Bill 40) amended section 1170 in response to Cunningham’s suggestion that California could comply with the federal jury-trial constitutional guarantee while still retaining determinate sentencing, by allowing trial judges broad discretion in selecting a term within a statutory range, thereby eliminating the requirement of a judge-found factual finding to impose an upper term. (Cunningham, supra, 549 U.S. at pp. 292-294 [166 L.Ed.2d at pp. 876-877]; see Stats. 2007, ch. 3, § 1.) Senate Bill 40 amended section 1170 so that (1) the middle term is no longer the presumptive term absent aggravating or mitigating facts found by the trial judge; and (2) a trial judge has the discretion to impose an upper, middle or lower term based on reasons he or she states. As amended, section 1170 now provides as pertinent: ‘When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, 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. The court shall set forth on the record the reasons for imposing the term selected....’ (§ 1170, subd. (b).) This amended version of section 1170 became effective on March 30, 2007. (Stats. 2007, ch. 3, § 2.)” (People v. Wilson (2008) 164 Cal.App.4th 988, 992.) Defendant was sentenced on January 22, 2008.
The urgency legislation did not change section 1170.1, subdivision (d), which still establishes a presumption that the middle term is the maximum sentence for an enhancement where three possible terms are provided. (People v. Lincoln (2007) 157 Cal.App.4th 196, 205.) In People v. Lincoln, the Second District held that section 1170.1, subdivision (d) “suffers from the identical constitutional infirmities identified by the United States Supreme Court in Cunningham [citation], and is similarly unconstitutional. The Legislature has taken no step to amend this provision to render it compliant with the Sixth Amendment, and the California Supreme Court did not reform it in [People v.] Sandoval [(2007)] 41 Cal.4th [825,] 843-852]).” (157 Cal.App.4th at p. 205.) We need not decide whether we agree with the Second District’s assessment of section 1170.1 because even assuming Cunningham had applied to defendant’s sentencing, there would be no error. As we shall explain, given defendant’s criminal history, including his prior convictions, he was not “‘legally entitled’ to the middle term sentence, and the upper term sentence [was] the ‘statutory maximum.’” (People v. Black (2007) 41 Cal.4th 799, 813, fn. omitted (Black II).)
Section 1170.1, subdivision (d) provides in part: “If an enhancement is punishable by one of three terms, the court shall impose the middle term unless there are circumstances in aggravation or mitigation....”
The trial court failed to set forth on the record the reasons for imposing the upper term on the firearm enhancements on counts 2 and 3. While defendant notes this fact in his opening brief, he does not raise it as an issue on appeal. Because defendant never objected to the court’s failure to state its reasons for imposing the upper term, he forfeited any claim of error on appeal. (People v. Gonzalez (2003) 31 Cal.4th 745, 755; People v. Scott (1994) 9 Cal.4th 331, 354-355.) In his reply brief, defendant asserts that his trial counsel’s “failure to put the trial court to the task to articulate [its] reasons has effectively denied [defendant] the right to a review of the trial court’s determination. Thus, there is a discernible prejudice from the failure to state reasons.” To the extent defendant seeks to raise a claim of ineffective assistance of counsel based on trial counsel’s failure, the claim fails because defendant was not prejudiced by any such error. (Strickland v. Washington (1984) 466 U.S. 668, 687, 691-694 [80 L.Ed.2d 674, 693, 697-698].) To establish he was prejudiced, defendant must show that had his trial counsel objected to the court’s failure to set forth its reasons for imposing the upper term on the enhancements, it is reasonably probable the trial court, after explaining its reasons, would have imposed a less severe sentence. (Id. at p. 687 [80 L.Ed.2d at pp. 697-698].) Given defendant’s extensive criminal history, which is detailed above, and the absence of any mitigating factors in the probation report, we have no doubt the trial court would have imposed the upper term on the enhancements even if had been forced to set forth its reasons for doing so. Defendant suffered no ineffective assistance of counsel.
Interpreting the decision in Cunningham, in Black II, the court concluded that “imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (41 Cal.4th at p. 816.) As the court explained: “Under California’s determinate sentencing system, the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term. [Citation.] Therefore, if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not ‘legally entitled’ to the middle term sentence, and the upper term sentence is the ‘statutory maximum.’” (Black II, supra, at p. 813, fn. omitted.) In other words, “[i]mposition of the upper term violates the Sixth Amendment under Blakely and Cunningham only if no legally sufficient aggravating circumstance has been found to exist by the jury or been established under one of the exceptions to Blakely's jury trial requirement.” (In re Gomez (2009) 45 Cal.4th 650, 660, citing Black II, supra, 41 Cal.4th at p. 816.)
Exceptions to Blakely’s jury trial requirement include: facts admitted by the defendant; prior convictions (People v. Sandoval (2007) 41 Cal.4th 825, 836-837); service of a prior prison term; and unsatisfactory performance on probation or parole when established by the defendant’s record of prior convictions (People v. Towne (2008) 44 Cal.4th 63, 79-83).
Here, defendant admitted prior convictions for a felony prohibiting him from possession of a firearm and possession of a controlled substance for sale. According to the probation report, defendant had nine prior felony convictions, one prior misdemeanor conviction, and four probation violations; and served four prior prison terms. The probation report cited three aggravating factors relating to defendant’s recidivism and no mitigating factors.
In sum, defendant’s criminal history made him eligible for the upper term sentence. Therefore, imposition of the upper term on the firearm enhancements on counts 2 and 3 did not violate defendant’s constitutional rights as interpreted in Apprendi and its progeny.
DISPOSITION
The judgment is modified to reduce defendant’s sentence on the arming enhancement imposed pursuant to section 12022, subdivision (c) on count 7 (transportation of methamphetamine) to 16 months (one-third the middle term), thereby reducing defendant’s aggregate sentence from 33 years to 30 years and 4 months in state prison. As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment reflecting those modifications, and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
We concur: HULL, J. BUTZ, J.