P. v. Anderson

Filed 9/25/07 P. v. Anderson CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County. Allen J. Webster, Jr., Judge. Affirmed in part, reversed in part, and remanded.

John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Stephanie C. Brenan, Deputy Attorney General, Viet H. Nguyen, Deputy Attorney General, for Plaintiff and Respondent.

INTRODUCTION

A jury convicted defendant and appellant Daryl Anderson (defendant) of three counts of assault with a firearm (Penal Code, 245, subd. (a)(2)),[1]one count of attempted murder ( 664/187, subd. (a)) and two counts of possession of a firearm by a minor ( 1201, subd. (a)(1)). The trial court sentenced defendant to state prison for an aggregate term of 44 years-to-life, which included a ten-year gang enhancement imposed under section 186.22, subdivision (b)(1).

Defendant argues that the People adduced insufficient evidence to prove that (1) the firearm defendant used on October 8, 2004 to commit two of his assaults was either real or, if real, loaded; and (2) defendant committed any of his crimes with the specific intent to promote, further, or assist in any criminal conduct by gang members[.] ( 186.22, subd. (b)(1).) We conclude that the record contains substantial evidence to support defendants firearms convictions and the gang enhancement.

Defendant further contends that his upper-term sentence imposed on his attempted murder conviction violated his constitutional right to a jury trial under the United States Supreme Courts decision in Cunningham v. California (2007) __ U.S. __, 127 S.Ct. 856 (Cunningham). We conclude that defendants upper-term sentence was properly imposed based on recidivist factors that do not implicate defendants right to a jury trial, pursuant to People v. Black (2007) 41 Cal.4th 799 (Black II). We also conclude, however, that the trial court committed errors in sentencing defendant, and therefore reverse portions of defendants sentence and remand for limited resentencing.

BACKGROUND

Defendant is a member of the Grape Street Watts Crips (Grape Street), a criminal street gang, the territory of which encompasses the Jordan Downs housing project in the Watts area of south Los Angeles. Defendants gang moniker is Little Dairy or L Dairy. Members of Grape Street often wear purple clothing.

Two of Grape Streets rival gangs control nearby territories. One is the Bounty Hunter Bloods, whose territory includes the Nickerson Gardens housing project. The other is the PJ Watts Crips or Project Crips, whose territory includes the Imperial Courts housing project.

A. The October 8 Crimes: Counts 1, 6 and 9

On October 8, 2004, Justin P. was an eighth-grade student at Markham Middle School in south central Los Angeles. Justin lived in Nickerson Gardens, about a ten-minute walk from Markham. Justin walked to school the morning of October 8 with his cousin and his friend. Just after he entered the school grounds, Justin saw defendant standing with another, unidentified young man. Defendant wore a purple shirt under a white shirt; defendants companion wore a purple shirt under a black shirt.

As Justin and his companions approached, defendants companion began yelling at them, Fuck Booty Holes. Justin knew from the alliteration between Booty Holes and Bounty Hunters that this was intended to insult the Bounty Hunters, the Blood gang from Nickerson Gardens. Justin kept walking, but defendant and his companion followed Justin, until defendants companion walked in front of Justin and demanded to know where Justin was from. Justin knew that this meant [i]f I gang bang or not. Justin told the man to get out of [his] face because Justin was not a gang member, and kept walking.

Defendant then confronted Justin and asked whether Justin was getting smart. Justin told defendant to get out of [his] face and walked past him again. Defendant came up behind Justin and put a gun to the right side of Justins head. Defendant said that he was from Grape Street. Defendant held the gun to Justins head for several minutes, asking Justin if he was getting smart. Defendant and his companion then fled, apparently having seen a school security guard approaching. Justin saw the gun in defendants hand as he ran away. Justin went to the school attendance office, reported what had occurred and identified defendant from a yearbook. He later identified defendant from a photographic six-pack.

At some time that same morning, on the other side of the Markham Middle School campus, R.M. entered the schools main gate. Defendant and his companion came up behind R. and asked him where [he] was from. R. said was from nowhere meaning that R. was not a gang member and kept walking toward the schools P.E. field. Defendant and his companion followed R. When they reached the P.E. field, defendant confronted R. and said, We got to get down. R. knew this was an invitation to fight. R. agreed to fight defendant.

As R. was removing his backpack to fight, defendants companion gave defendant a gun. Defendant pointed the gun at R.s face from approximately eight feet away. Defendant said to R., Fuck PJ, fuck Stebo, fuck Little Trent. PJ was a reference to PJ Watts Crips, the gang from Imperial Courts. Stebo and Little Trent were R.s cousins. Defendant again identified himself as a member of Grape Street. R. stared at defendant for a moment, then walked away. As he did so, he heard defendant say, Ill be back. R. also identified defendant from a yearbook and later from a photographic six-pack.

B. The October 23 Crimes: Counts 2, 3 and 7

At approximately 8:00 p.m. on October 23, 2004, Marco Vasquez drove his wife and three children to the Jordan Downs housing project to visit his mother. As he parked, he saw three young men in the parking area, two riding bicycles in circles. While his family stayed in the car, Vasquez walked toward his mothers apartment. As he walked down the alley between two buildings, he again saw the three young men from the parking lot. Vasquez thought this was suspicious. Vasquez became worried about his family, and turned to go back toward the parking area. As he did so, he heard the three young men calling out to him to approach them. Defendant was one of the three young men. Defendant was carrying a gun.

The three young men came toward Vasquez. Vasquez pulled out his pockets to show them that he had no money, but they kept approaching. Vasquez surmised that the young men were not after money, and he became frightened. Defendant approached to within two or three feet of Vasquez. Vasquez jumped toward defendant, pushed him and fled toward his mothers apartment. One of defendants companions told defendant to shoot Vasquez. Defendant fired three or four shots. Vasquez looked back as he ran and saw defendant firing the gun. Just as Vasquez reached his mothers door, one of the bullets struck him in the right buttocks. He made it inside his mothers apartment without further injury. He was hospitalized and later identified defendant from a photographic six-pack.

C. Defendants Trial and Sentence

On June 30, 2005, defendant was charged in a nine-count information.[2] At the trial, the victims testified about the crimes perpetrated against them, and about their contemporaneous identifications of defendant as the perpetrator. In addition, Officer Timothy Pearce of the Los Angeles Police Departments Southeast Division Gang Unit testified regarding gang activity in Watts, with particular emphasis on Grape Street. Officer Pearce testified that an essential gang activity is to protect its turf, that is, the area in which the gang controls narcotics sales. He further testified that Grape Street is consistently involved in activities such as robberies, narcotic sales, shootings, drive-by shootings, murder and witness intimidation.

In response to hypothetical questions, Officer Pearce opined that acts like those defendant committed on October 8, 2004 at Markham Middle School would have benefited Grape Street. Markham Middle School is outside or on the edge of Grape Street territory, across the street from territory controlled by another gang, Hacienda Village Bloods. Defendant and his companion explicitly challenged rival gangs during the course of the crimes. Officer Pearce testified that, when the victims of such assaults go back to the neighborhood and tell what happened, people will hear that Grape Street is out confronting people, thus expand[ing] [Grape Streets] power through fear and intimidation.

The shooting of Vasquez on October 23, Officer Pearce stated, would similarly inculcate fear and intimidation on the population inside Grape Streets territory. That kind of real intimidation and danger is what keeps a strangle hold on that neighborhood [Jordan Downs] and . . . keeps people from calling the police and allows that gang to do all their criminal activities without being interfered with by witnesses and the police.

The jury convicted defendant on six counts. Defendant was convicted of assault with a firearm against Justin P. (count 1) and R.M. (count 9), both on October 8, 2004, and against Vasquez (count 3) on October 23, 2004. Defendant was also convicted of the attempted murder of Vasquez (count 2), possession of a firearm by a minor on October 8 (count 6), and possession of a firearm by a minor on October 23 (count 7).

The jury found true the allegations with respect to all six counts that defendant committed the crimes for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members[.] ( 186.22, subd. (b)(1).) On counts 1, 3 and 9, the jury found true the allegation that defendant personally used a firearm. ( 12022.5, subdivisions (a)-(d).) On counts 2 and 3, the jury found true the allegations that defendant inflicted great bodily injury in the commission of a felony. ( 12022.7, subd. (a).) With respect to count 2, the jury found true the allegation that defendant personally and intentionally discharged a firearm that caused great bodily injury ( 12022.53, subd. (d)). The jury found not true the allegation with respect to count 2 that the attempted murder was willful, deliberate and premeditated.

The trial court sentenced defendant to state prison for a term of 44 years-to-life, consisting of the upper term of 9 years on count 2, plus 10 years for the gang enhancement, plus 25 years-to-life on the enhancement for causing great bodily injury by discharging a firearm. The trial court imposed concurrent 17-year sentences on counts 1 and 9, both of which included a 10-year gang enhancement. The trial court stayed the sentences on counts 3, 6 and 7 pursuant to section 654.

DISCUSSION

A. Standard of Review

When reviewing the sufficiency of the evidence to support a criminal conviction, we review[] the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Bolden (2002) 29 Cal.4th 515, 553, quoting People v. Kipp (2001) 26 Cal.4th 1100, 1128.) We draw all reasonable inferences in support of the judgment. (People v. Wader (1993) 5 Cal.4th 610, 640.) We will reverse only if it appears that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]. (People v. Bolin (1998) 18 Cal.4th 297, 331, quoting People v. Redmond (1969) 71 Cal.2d 745, 755.) This deferential standard of review obtains even in cases in which the prosecution relies primarily on circumstantial evidence. (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) If the circumstances reasonably justify the trier of facts findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. (Ibid., quoting People v. Stanley (1995) 10 Cal.4th 764, 792-93.)

B. The Record Contains Sufficient Evidence that Defendant Used a Firearm

Defendant challenges the sufficiency of the evidence to support his firearm-related convictions and enhancements based on his conduct at Markham Middle School on October 8, 2004.[3] The defendants use or possession of a firearm is an essential element of assault with a firearm ( 245, subd. (a)(2)),[4]possession of a firearm by a minor ( 12101, subd. (a)(1)),[5]and the firearm-use enhancement ( 12022.5, subdivisions (a)-(d).)[6] (See 12001, subd. (b) [defining firearm as any device, designed to be used as a weapon, from which is expelled through a barrel, a projectile by the force of any explosion or other form of combustion].) Defendant argues that the prosecution failed to prove that he used or possessed a firearm on October 8. The gun defendant used to threaten Justin and R. was not introduced into evidence and was not fired during the incidents, and defendant contends that the prosecution failed to adduce other evidence that the gun was real, rather than a toy. In the alternative, defendant argues that, even if the gun was real, there is no evidence that it was loaded, and that there is accordingly insufficient evidence to sustain defendants convictions for assault with a firearm ( 245, subd. (a)(2)).

We conclude that the prosecution introduced sufficient circumstantial evidence to permit a reasonable jury to infer that the gun defendant used on October 8 was both real and loaded. A defendants own words and conduct in the course of an offense may support a rational fact finders determination that he used a loaded weapon. (People v. Rodriguez, supra, 20 Cal.4th at 13.) Accordingly, a defendants own words and actions, in both verbally threatening and in displaying and aiming [a] gun at others, [can] fully support[] a jurys determination the gun was sufficiently operable to inflict injury. (People v. Lochtefeld (2000) 77 Cal.App.4th 533, 541.)

For example, in People v. Rodriguez, supra, 20 Cal.4th 1, defendant Rodriguez was a member of the 18th Street gang in Hollywood. The victim, Merritt, knew Rodriguez by sight, and saw Rodriguez shoot a man. (Id. at p. 6.) The next day, Merritt encountered Rodriguez in the street. Rodriguez blocked Merritts path and told Merritt to go back to his apartment. When Merritt continued to follow Rodriguez and his companion, Rodriguez lifted his shirt, revealing a gun in his waistband. When Merritt remained in place, Rodriguez took out his gun, put the barrel under Merritts chin, and told Merritt to keep quiet because I could do to you what I did to them. (Id. at pp. 6-7.) Rodriguez was convicted by a jury of, among other things, assault with a firearm in violation of section 245, subdivision (a)(2). (Id. at p. 4.)

The court of appeal reversed Rodriguezs conviction, concluding that, in the absence of evidence the gun was loaded or that defendant had attempted to use it as a club or bludgeon, the evidence was insufficient to prove that Rodriguez had the present ability to inflict a violent injury. (People v. Rodriguez, supra, 20 Cal.4th at pp. 10-11.) The California Supreme Court reversed the court of appeal, concluding that the court of appeals reasoning amounted to nothing more than a different weighing of the evidence[.] (Id. at p. 12.) The jury reasonably could have inferred the gun was loaded because [Rodriguez] had shot [a man] the previous day and because defendant, a gang member, logically would not carry an unloaded gun in an area where gang violence was prevalent. (Ibid.) In addition, the jury could have interpreted Rodriguezs threat that he could do to [Merritt] what he did to them as an admission by [Rodriguez] of his present ability to harm Merritt. (Ibid.) (See also People v. Lochtefeld, supra, 77 Cal.App.4th pp. 536, 541- 542 [pointing pellet gun at police officers head with finger on trigger was implied assertion that pellet gun was operable]; People v. Mearse (1949) 93 Cal.App.2d 834, 836-838 [defendants command to victim to halt or Ill shoot indicated gun loaded]; People v. Montgomery (1911) 15 Cal.App. 315, 318 [evidence that enraged defendant returned with gun, pointed it at victim and said, I have got you now was sufficient to support finding that gun was loaded].)

The evidence in this case showed that defendant was an active member of Grape Street, and that both Bounty Hunters and PJ Watts Crips were rival gangs. Officer Pearce testified that Markham Middle School is outside of or on the border of Grape Street territory, such that defendant would gain status and credit for going close to an enemy territory and pulling off a confrontation . . . . It takes a lot of guts for a gangster to do that[.] On October 8, both defendant and his companion were wearing purple shirts. As Officer Pearce stated, [w]earing the purple T-shirt underneath is something thata shirt can be pulled up to flash the neighborhood, to let them know its Grape Street[.] Defendant also verbally identified himself as a member of Grape Street to both Justin and R. Both defendant and his companion were aggressively confrontational, and affirmatively undertook to insult both Bounty Hunters and PJ Watts Crips. Defendants companion shouted, Fuck Booty Holes at Justin, who lived in Nickerson Gardens, the heart of the Bounty Hunters territory. While the record does not reflect whether R. lived in or near Imperial Courts, defendant sought to provoke R., saying Fuck PJ, fuck Stebo, fuck Little Trent. The jury thus reasonably could conclude that defendant and his companion were deliberately attempting to intimidate or provoke a confrontation with members or associates of rival gangs. The inference follows that, when defendant left or ventured to the edge of Grape Street territory seeking a confrontation with Grape Streets rivals, the gun he and his companion carried was both real and loaded. To paraphrase People v. Rodriquez, supra, 20 Cal.4th at p. 12, defendant, a gang member, logically would not carry an unloaded [or toy] gun in an area where he intended to provoke confrontation with rival gang members.

The inference that defendants gun was operable and loaded is further supported by defendants words and actions when he used the gun to threaten Justin and R. Although defendant correctly points out that he never verbally threatened to shoot anyone, that threat was manifest in defendants conduct. Defendant pulled the gun on Justin in response to Justin telling defendant to get out of [his] face. Defendant pressed the gun to Justins head and held it there for minutes, asking Justin if he was getting smart and telling Justin that defendant was from Grape Street. R. was preparing to fight defendant when defendants associate passed defendant the gun, and defendant pointed the gun at R.s face from eight feet away. R. testified that he was not scared of defendant and was ready to fight him until defendant pointed the gun into his face. Then, R. became scared. As R. walked away, defendant threatened, Ill be back.

Finally, there was also evidence that defendant possessed a real, loaded weapon two weeks later, on October 23, 2004, when defendant shot Vasquez. Defendant was then in the relative safety of Grape Streets home territory in Jordan Downs, rather than in close proximity to a rival gangs territory. The jury could infer from defendants possession and use of a loaded firearm on October 23 that he was likely carrying a real, loaded firearm on October 8.

Accordingly, the circumstantial evidence was sufficient to permit a reasonable jury to find beyond a reasonable doubt that defendant possessed and used a real, loaded weapon at Markham Middle School on October 8.

C. The Record Contains Sufficient Evidence to Support the Gang Enhancement

Defendant attacks the sufficiency of the evidence supporting the jurys finding that the crimes charged in counts 1, 2 and 9[7]were committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members[.] ( 186.22, subd. (b)(1).)[8]In particular, defendant contends that although there was evidence of defendants enthusiastic gang membership, the prosecutor failed to prove that defendant had the specific intent to promote, further, or assist in any criminal conduct by gang members[.] (Ibid.)

Section 186.22, subdivision (b)(1), however, does not require proof that defendant had the specific intent to promote, further, or assist other, additional criminal conduct. (People v. Hill (2006) 142 Cal.App.4th 770, 774.) Rather, the plain language of section 186.22, subdivision (b)(1) requires specific intent to promote, further or assist any criminal conduct by gang members. ( 186.22, subd. (b)(1), italics added.) Accordingly, the specific-intent element can be satisfied by evidence that defendants own criminal conduct was gang related (People v. Hill, supra, 142 Cal.App.4th at p. 774), or that defendant intended to help [a fellow gang member] commit a crime. (People v. Romero (2006) 140 Cal.App.4th 15, 20; see People v. Morales (2003) 112 Cal.App.4th 1176, 1198-99 [specific intent to benefit the gang not required; specific intent established by evidence of defendants intentional acts, when combined with his knowledge that those acts would assist crimes by fellow gang members].)

Defendant further argues that, because section 186.22, subdivision (b)(1) requires specific intent to promote, further or assist . . . criminal conduct, the prosecutor must prove that defendant subjectively knew that the conduct he intended to promote, further or assist was illegal. The authorities do not support this interpretation. As this court recently stated in People v. Noori (2006) 136 Cal.App.4th 964, 975-76, [u]nder the accepted rules of statutory construction, including the additional mental state element of knowing that ones actions are illegal requires a specified legislative intent. [K]nowledge of the unlawfulness of an act or omission is not required unless the Legislature has specifically decreed otherwise. (People v. Ramsey [(2000)] 79 Cal.App.4th [621,] 632, quoting People v. Honig (1996) 48 Cal.App.4th 289, 336-337 [55 Cal.Rptr.2d 555].) There is no such decree in section 186.22, subdivision (b)(1). Section 186.22, subdivision (b)(1) requires proof only that defendant intended to promote, further or assist conduct that is criminal, and not that defendant subjectively knew such conduct to be a violation of law. (See 1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Defenses, 36 at p. 367 [Criminal intent is merely the intent to commit the prohibited act, not the intent to violate the law]; People v. OBrien (1892) 96 Cal. 171, 176 [It is an emphatic postulate of both civil and penal law that ignorance of a law is no excuse for a violation thereof]; People v. McLaughlin (1952) 111 Cal.App.2d 781, 788 [No doctrine is more universal or of more ancient vintage in the law than that ignorance of the law excuses no one. That doctrine still strides the world]; cf. 7, subd. (1) [willfully . . . does not require any intent to violate law]; 7, subd. (5) [knowingly . . . does not require any knowledge of the unlawfulness of such act or omission].)

The evidence is sufficient to sustain the gang enhancements. Defendant concedes that his assaults on Justin and R. at Markham Middle School on October 8 were gang related. The evidence that defendant flaunted his gang affiliation, and that both defendant and his companion insulted rival gangs and wore Grape Street colors in the course of committing those assaults, supports that conclusion. As a result, the evidence of defendants own gang-related assaults, committed in concert with a fellow gang member, is sufficient to sustain the gang enhancements imposed with respect to counts 1 and 9. In addition, Officer Pearce testified that such intimidation tactics are consistent with Grape Streets purpose to expand and consolidate its territory for narcotics sales. The jury could thus reasonably infer that defendant committed the assaults on Justin and R. with the specific intent to promote, further, or assist in any criminal conduct by gang members[.]

With respect to defendants attempt to murder Vasquez at Jordan Downs on October 23, defendant correctly asserts that the record contains no evidence that defendant made gang-related threats, identified himself as a gang member, or wore gang paraphernalia that night, or that defendants companions were members of Grape Street. But this lack of evidence is not conclusive. Defendant, with his companions, followed Vasquez from the parking lot, called out to Vasquez from a distance, approached Vasquez even after Vasquez turned out his pocket to show that he had no money, and shot Vasquez after Vasquez fled. Such conduct supports the inference that defendant did not intend to rob Vasquez that night, but approached and shot him for some other purpose. Officer Pearce opined that defendants conduct was consistent with that of Grape Street members protecting their territory from outsiders and terrorizing the residents of Jordan Downs to prevent them from reporting Grape Streets narcotics sales and other illegal activities to the police. (Cf. People v. Gardeley (1996) 14 Cal.4th 605, 612-13 [affirming gang enhancement when defendant beat man who stopped to urinate in gang territory; such conduct was a classic example of how a gang uses violence to secure its drug-dealing stronghold]). A reasonable trier of fact could thus conclude that defendants attempt to murder Vasquez, charged in count 2, was for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members[.]

D. The Trial Court Did Not Err In Imposing Defendants Upper-Term Sentence On Count 2

Defendant argues that the trial court sentenced him to the upper term of nine years on count 2 in violation of his Sixth Amendment right to a jury trial, pursuant to the United States Supreme Courts decisions in Apprendi v. New Jersey(2000) 530 U.S. 466, and Blakely v. Washington (2004) 542 U.S. 296. After briefing was completed and this matter submitted, the United States Supreme Court issued its decision in Cunningham, supra, __ U.S. __, 127 S.Ct. 856. Subsequently, the California Supreme Court issued its decisions in Black II, supra, 41 Cal.4th 799 and People v. Sandoval (2007) 41 Cal.4th 825. Based on these authorities, we find no Apprendi error in defendants upper-term sentence.

In Cunningham, the United States Supreme Court held that Californias determinate sentencing law violated the Sixth Amendment insofar as it authorized trial judges, rather than juries, to make factual findings that expose defendants to upper term sentences. (Cunningham, supra, __ U.S. __ at p. __, 127 S.Ct. at pp. 868-871.) In Black II, supra, 41 Cal.4th 799, the California Supreme Court held that so long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury. (Id. at p. 813.) Further, [u]nder Californias 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 . . . the upper term sentence is the statutory maximum. (Ibid.)

The Sixth Amendment does not confer a right to a jury trial on either the fact that a prior conviction occurred or other related issues that may be determined by examining the records of the prior convictions (Black II, supra, 41 Cal.4th at p. 819), including whether a defendant has suffered prior convictions, and whether those convictions are numerous or of increasing seriousness within the meaning of California Rules of Court, rule 4.421(b)(2).[9] (Id. at pp. 819-820; see also Almendarez-Torres v. United States (1998) 523 U.S. 224, 239-247.) Furthermore, although California law requires proof beyond a reasonable doubt of alleged prior convictions used to justify a recidivist sentence (see, e.g., People v. Bowden (2002) 102 Cal.App.4th 387, 392-393), facts relating to prior convictions found to be aggravating circumstances for purposes of imposing an upper-term sentence are not subject to proof beyond a reasonable doubt, but may be found by a preponderance of the evidence. (Black II, supra, 41 Cal.4th at p. 820, fn. 9.) Accordingly, as the Supreme Court concluded in Black II,imposition of the upper term does not infringe upon the defendants 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 defendants record of prior convictions. (Id. at p. 816.) The trial court may rely upon a defendants record of juvenile sustained petitions as an aggravating circumstance when imposing an upper-term sentence. (Rule 4.421(b)(2); People v. Tu (2007) 154 Cal.App.4th 735, __ [2007 Cal.App. LEXIS 1409, *21-*26].)

The trial court in this case did not specify the particular aggravating factor or factors upon which it relied in selecting the upper-term sentence on count 2. (Rules 4.420(e), 4.421.) Immediately prior to pronouncing sentence, however, the trial court heard and denied defendants motion to strike the section 12022.53, subdivision (d) enhancement for causing great bodily injury by discharging a firearm. It appears that the trial court intended that the reasons it stated for denying the motion were also to justify the upper-term sentence on count 2.

The trial court stated that defendant is really just a . . . one-man crime wave who has absolutely no regard for human life, no regard for people, no regard for property. He forces what he wants. If he doesnt get it, he shoots people. . . . He basically lives with a gun. Every time he doesnt get something, he pulls a gun on people. With Mr. Vasquez the man pulls out . . . his pocket, shows I have no money, he shoots him in the behind. [] Goes to a school, these kids are trying to get an education in middle school, he points a gun at the kids head. Case after case he doesnt get what he wants, he basically strikes out at people . . . [.] [L]uckily none of these people have been killed. I guess fortunately it hasnt happen[ed]. He shows absolutely no regard for anyone. The trial court then referred to some of defendants prior violent criminal acts. Defendants record includes a juvenile sustained petition in May 2004 for two counts of assault with a deadly weapon ( 245(a)(1)), for which defendant was sentenced to a four-year term of camp community placement, and a sustained petition in November 2003 for attempted robbery ( 664/211) and assault with a deadly weapon ( 245(a)(1)), for which defendant was sentenced to three years of home probation. Its case after case after case, the trial court observed, where [defendant] basically has a very antisocial attitude towards society. The trial court continued, Basically, I guess [defendant is] consistently showing that he is not amenable to any sort of rehabilitation. He is not amenable to following the rules. . . . [] . . . [] He needs to be punished.

It therefore appears that, in imposing the upper-term sentence, the trial court relied upon the aggravating factor set forth in rule 4.421(b)(2): The defendants prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness. As noted above, defendant had prior juvenile sustained petitions on four violent felony counts. Furthermore, defendants crimes had progressed from assault with a deadly weapon and robbery to attempted murder. Defendants criminal record thus evidenced prior convictions that were both numerous and of increasing seriousness. (See Black II, supra, 41 Cal.4th pp. 818-820 [three prior convictions numerous].) Defendant was thus eligible for an upper-term sentence based on aggravating factors that were not within the scope of defendants right to a jury trial, as set forth in Cunningham, supra, 127 S.Ct. 856. The trial court did not violate defendants Sixth Amendment rights by finding additional aggravating factors.

E. The Trial Court Erred in Sentencing Defendant

When sentencing defendant, the trial court imposed the sentences on counts 1 and 9 (assault with a firearm) concurrently with the indeterminate term of 44 years to life imposed on count 2 (attempted murder). Orally, the trial court designated the sentences on counts 1 and 9 as subordinate terms to the sentence on count 2. Because the sentence on count 2 was an indeterminate term, however, it could not serve as a principal term for purposes of imposing subordinate determinate sentences. Furthermore, when, as here, determinate sentences are imposed concurrently, the trial court must impose the full term of each determinate sentence. Accordingly, the trial court in this case was required, but failed, to select a principal determinate term, which could be either count 1 or count 9. (See Pen. Code, 1168, subd. (b), 1170.1, subd. (a); People v. Felix (2000) 22 Cal.4th 651, 655; People v. Caplan (1987) 193 Cal.App.3d 543, 560, fn. 6, disapproved on other grounds in People v. Hammon (1997) 15 Cal.4th 1117, 1123.)

In addition, the abstract of judgment is inconsistent with the trial courts oral pronouncement of sentence. The abstract of judgment incorrectly states that full terms were imposed by the trial court on counts 1 and 9, rather than one-third of the mid term on each of the two counts, as specified by the trial court orally. Similarly, the abstract of judgment states that full terms were imposed on the firearm use and gang enhancements on counts 1 and 9, rather than the one-third terms on each enhancement imposed by the trial court orally.

Finally, the trial court imposed but stayed a great bodily injury enhancement ( 12022.7, subd. (a)) on count 2, in addition to imposing an enhancement for causing great bodily injury by discharging a firearm ( 12022.53, subd. (d)). We agree with both defendant and the People that the trial court erred in doing so. Section 12022.53, subdivision (f) expressly provides, in relevant part, that [a]n enhancement for great bodily injury as defined in Section 12022.7, 12022.8, or 12022.9 shall not be imposed on a person in addition to an enhancement imposed pursuant to subdivision (d). (See also People v. Warner (Sept. 12, 2007, F051027) __ Cal.App.4th __ [2007 Cal.App. LEXIS 1522, *7-*9].) Accordingly, the section 12022.7 enhancement imposed on count 2 must be stricken.

In light of the conclusion that the section 12022.7 enhancement must be stricken, we remand to permit the trial court to exercise its discretion to impose concurrent or consecutive sentences on counts 1 and 9, provided that no sentence greater than 44 years to life results.

Disposition

The judgment of conviction is affirmed. The great bodily injury enhancement ( 12022.7, subd. (a)) imposed on count 2 is reversed, and the trial court is instructed upon remand to enter an order striking the enhancement. The sentences as to counts 1 and 9 are reversed. Upon issuance of the remittitur, the trial court is to exercise its discretion to impose concurrent or consecutive sentences on counts 1 and 9, as discussed in the body of this opinion, provided that no sentence greater than 44 years to life results. After the resentencing, an amended abstract of judgment is to be prepared and forwarded to the Department of Corrections and Rehabilitation. The abstract of judgment shall be accurate and correct, as specified in this opinion. The judgment is affirmed in all other respects.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MOSK, J.

We concur:

TURNER, P. J.

ARMSTRONG, J.

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[1]All statutory references are to the Penal Code unless otherwise specified.

[2]The jury acquitted defendant on counts 4 and 5, which charged defendant with the second degree robbery and attempted second degree robbery of two different victims on October 31, 2004. Count 8, which charged defendant with displaying a concealable weapon in public, was dismissed by the trial court.

[3]Defendant challenges his convictions on counts 1 and 9 for assault with a firearm ( 245, subd. (a)(2)); his conviction on count 6 for possession of a firearm by a minor ( 12101, subd. (a)(1)); and the firearm-use enhancements imposed on counts 1 and 9 ( 12022.5, subd. (a)-(d)).

[4]Section 245, subdivision (a)(2) provides: Any person who commits an assault upon the person of another with a firearm shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not less than six months and not exceeding one year, or by both a fine not exceeding ten thousand dollars ($10,000) and imprisonment.

[5]Section 12101, subdivision (a)(1) provides: A minor shall not possess a pistol, revolver, or other firearm capable of being concealed upon the person.

[6]Section 12022.5 provides, in relevant part:

(a) . . . [A]ny person who personally uses a firearm in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for 3, 4, or 10 years, unless use of a firearm is an element of that offense.

[] . . . []

(d) Notwithstanding the limitation in subdivision (a) relating to being an element of the offense, the additional term provided by this section shall be imposed for any violation of Section 245 if a firearm is used[.]

[7]Although the jury found true the gang-enhancement allegations with respect to all six counts on which defendant was convicted, the trial court imposed the enhancement only on counts 1, 2 and 9. The sentences on counts 3, 6 and 7 were stayed pursuant to section 654.

[8]Section 186.22, subdivision (b)(1) provides, in relevant part:

. . . [A]ny person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished as follows:

[] . . . []

(C) If the felony is a violent felony, as defined in subdivision (c) of Section 667.5, the person shall be punished by an additional term of 10 years.

[9] All rule references are to the California Rules of Court. Rule 4.421 was amended effective May 23, 2007. All rule references are to the rules in effect when defendant was sentenced.