Filed 6/16/17 P. v. Glass CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

v.

CALVIN GLASS, JR.,

Defendant and Appellant.
D070491



(Super. Ct. No. SCN348199)

APPEAL from a judgment of the Superior Court of San Diego County, Michael J. Popkins, Judge. Affirmed.
Conrad D. Petermann, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Meagan J. Beale and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
Defendant Calvin Glass, Jr. appeals from a judgment of conviction entered after he pled guilty to one count of voluntary manslaughter and one count of attempted murder. With respect to the voluntary manslaughter count, Glass also admitted that in committing the crime, he personally used a firearm.
On appeal, Glass challenges the sentence that the trial court imposed. Glass argues that the trial court improperly relied on the same aggravating factors to impose an upper term sentence with respect to the voluntary manslaughter count and an upper term sentence on the firearm enhancement associated with the voluntary manslaughter count. According to Glass, the trial court's use of these factors for selecting the upper term sentences on both the substantive offense and the enhancement violated the dual use prohibition. We disagree with Glass's contention, and therefore affirm the judgment of the trial court.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual background
Glass shared an apartment with Jordan Luis. Both young men were part of a Youth Social Services Program, through Casa de Amparo. Glass and Luis were having difficulties living together.
At some point, Luis invited Julius Lowe to stay in the shared apartment, sleeping on the couch. Lowe stayed with Luis and Glass in the apartment for approximately three weeks. During this time period, Lowe threatened Glass a number of times, both in person and on social media.
On July 26, 2015, Glass armed himself with a 9 millimeter semi-automatic firearm and entered the apartment. He fired at Luis, who had been sitting on a chair, striking Luis in the chest and upper right arm. Glass also fired multiple shots toward Lowe. One shot hit Lowe on the underside of his jaw and exited out his chin. Immediately after firing the shots, Glass ran out of the apartment.
Luis died at the scene. Lowe got a gun and ran after Glass, but was unable to catch up with him.
Glass was apprehended in Escondido. He admitted that he had shot Luis and Lowe. He said that he had felt threatened by both men in the past and wanted the threat to come to an end.
B. Procedural background
Glass pled guilty to one count of voluntary manslaughter (§ 192, subd. (a); count 1), and one count of attempted murder (§§ 187, subd. (a), 664; count 2). He also admitted that he personally used a firearm with respect to count 1 (§ 12022.5, subd. (a)).
The trial court sentenced Glass to a term of 21 years in state prison. Glass filed a timely notice of appeal and requested a certificate of probable cause from the trial court. The court denied the request for a certificate of probable cause.
III.
DISCUSSION
Glass contends that the trial court improperly relied on the same factors to impose upper terms on both count 1 and on the enhancement corresponding with count 1. According to Glass, the "imposition of the upper term on the firearm enhancement was improper because the court had already relied on the same aggravating factors in imposing the upper term for the voluntary manslaughter offense," and "[r]eliance on the same facts to impose upper terms for both the substantive offense and its enhancement violated the dual use proscription." We disagree.
A. Additional background
In discussing sentencing, the trial court first noted the presence of certain aggravating factors. Specifically, the court explained that Glass "took a life" of a "[p]erson that was just sitting in a chair and at that moment minding his own business." The court continued, "[The victim] [d]idn't even get a chance to get up. He is just gunned down in a callous and vicious way." The court further noted that "there was some planning involved in this case, that he did plan and got the gun the week before and it appeared that he went there with the intent to do a shooting or a killing." The court disagreed with defense counsel's position that Glass had no choice but to do what he did. The court stated that Glass could have concealed the gun and used it only if the need to use it arose.
The court determined that the aggravating factors outweighed the mitigating factors, and that the upper term was therefore the appropriate choice with respect to the voluntary manslaughter conviction. The court then stated that this same weighing of aggravating versus mitigating factors also supported the imposition of the upper term on the gun use enhancement. The trial court imposed the sentence on the attempted murder count to run concurrently with the sentences on the voluntary manslaughter count and gun use enhancement.
B. Analysis
Glass contends that the trial court's use of the same factors in aggravation to impose the upper terms on both the voluntary manslaughter offense count and the gun use enhancement "constituted a violation of [Penal Code] section 1170, subdivision (b)'s[ ] prohibition against dual use of facts at sentencing." He argues that "even assuming the court could properly rely on the aggravating factors cited by the court in its decision to impose the upper term on the voluntary manslaughter charge or the firearm enhancement, it could not rely on the same factors to impose upper terms on both the voluntary manslaughter charge and the firearm enhancement."
As an initial matter, the People contend that Glass has forfeited this contention because his trial counsel failed to object to the trial court's use of the same factors in selecting the upper terms for both the substantive offense in count 1 and the corresponding gun use enhancement. In response, Glass contends that, to the extent his trial counsel failed to object to the trial court's reliance on the same factors in aggravating the sentences on both the substantive offense and the enhancement, his trial counsel provided ineffective assistance. Because Glass contends that defense counsel rendered ineffective assistance by failing to object to the trial court's sentencing choices, we


address the merits of his claim. (See People v. Williams (1998) 61 Cal.App.4th 649, 657 [addressing the merits of a claim despite forfeiture because defendant asserted ineffective assistance of counsel].)
At least one court has considered the argument that Glass raises and has concluded that a trial court's reliance on the same factors to aggravate both the sentence for a substantive offense and the sentence on a related enhancement does not violate the dual use prohibition. (See People v. Moberly (2009) 176 Cal.App.4th 1191, 1198 (Moberly).) The Moberly court explained: "We . . . conclude that the dual use of a fact or facts to aggravate both a base term and the sentence on an enhancement is not prohibited. We draw this conclusion by comparison with cases recognizing there is no prohibition on the dual use of facts to impose more than one aggravated term. (See, e.g., People v. Robinson (1992) 11 Cal.App.4th 609, 616, disapproved on other grounds in Scott, supra, 9 Cal.4th at p. 353, fn. 16; People v. Williams (1984) 157 Cal.App.3d 145, 156.) . . . This use of the same facts—to impose the aggravated sentence on multiple, consecutive terms—is for present purposes similar to use of the same fact or facts to impose the aggravated sentence on a single offense and on its accompanying, consecutive enhancement. Appellant provides no rationale for distinguishing the situations, and we find no principled distinction exists." (Ibid.)
We agree with the analysis in Moberly and adopt its reasoning here. Penal Code section 1170, subdivision (b) prohibits the court from "using the fact of any


enhancement" as a basis for imposing an upper term sentence with respect to a substantive offense. "To comply with section 1170(b), a fact charged and found as an enhancement may be used as a reason for imposing the upper term only if the court has discretion to strike the punishment for the enhancement and does so." (Cal. Rules of Court, rule 4.420(c); People v. Scott (1994) 9 Cal.4th 331, 350.) The trial court in this case did not use the same fact to impose both the personal firearm use enhancement and to impose an upper term, in that the court did not rely on the fact underlying the enhancement (i.e., Glass's personal use of a firearm) as a circumstance in aggravation to select the upper term. Rather, the court relied on a separate set of aggravating factors to impose the upper terms with respect to both the substantive offense and the enhancement. As the Moberly court concluded, there is no principled distinction between a court's reliance on the same set of factors to aggravate a defendant's sentences on multiple, consecutive terms and a court's reliance on the same set of factors to aggravate a defendant's sentence on a substantive offense and an accompanying consecutive enhancement. We therefore reject Glass's contention that the trial court erred in relying on the same set of factors in selecting the upper term with respect to his voluntary manslaughter conviction, and in selecting the upper term with respect to the gun use enhancement.
IV.
DISPOSITION
The judgment of the trial court is affirmed.

AARON, J.

WE CONCUR:

McCONNELL, P. J.

DATO, J.