P. v. Johnson

Filed 5/14/07 P. v. Johnson CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court for the County of Los Angeles, Tomson T. Ong, Judge. Reversed and remanded in part and affirmed in part.

Cheryl Barnes Johnson, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul C. Roadarmel, Jr., and David A. Voet, Deputy Attorneys General, for Plaintiff and Respondent.

_______________________

Keith Lamar Johnson appeals from the judgment entered following his conviction by a jury on one count of attempted voluntary manslaughter, a lesser included offense of the charged crime of attempted murder (Pen. Code, 664, 192, subd. (a)),[1]and one count of assault with a firearm ( 245, subd. (a)(2)) with special findings by the jury he was armed with and personally used a firearm in committing both offenses ( 12022, subd. (a)(1), 12022.5, subds. (a), (d)) and had personally inflicted great bodily injury on a person other than an accomplice during the assault ( 12022.7, subd. (a)). Johnson argues the trial court improperly imposed a three-year enhancement for inflicting great bodily injury on the assault count because the People failed to allege the enhancement in its accusatory pleading. He also argues the trial courts imposition of upper term sentences based on its own factual findings concerning aggravating circumstances violated his right to a jury guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution. Because we conclude the trial court used an improper aggravating circumstance to select the upper terms, we remand for resentencing without reaching the constitutional issue raised. In all other respects, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On the evening of February 19, 2005 Theodore Guillory and Toree Brenson, both members of the Eastside Boys gang, together with Coleman Sinclair and Floyd Boroadnay, walked into the territory of a rival street gang, the Sex, Money, Murder gang. They were confronted by Johnson and James McGarrah, members of the Sex, Money, Murder gang. Guillory yelled a verbally aggressive statement at McGarrah and Johnson and walked to within three to five feet of Johnson. Johnson pulled out his gun and fired, hitting Guillory once in the left thigh and once in the right thigh. As Guillory retreated, he heard three more gunshots. However, a nearby shop owner testified he heard only two shots. Guillory was taken from the scene to a friends house and then to a hospital, where he spent seven hours. He missed two weeks of work as a result of his injuries.

In a second amended information Johnson was charged with two counts of attempted willful, deliberate and premeditated murder ( 664, 187, subd. (a)) (count 1 identified Guillory as the victim; count 3 identified Brenson as the victim) and two counts of assault with a semiautomatic firearm ( 245, subd. (b)) (count 5 identified Guillory as the victim; count 7 identified Brenson as the victim). As to count 1 it was specially alleged Johnson personally and intentionally discharged a firearm, causing great bodily injury or death to Guillory within the meaning of section 12022.53, subdivision (d). Count 1 also specially alleged firearm enhancements pursuant to section 12022.53, subdivisions (b) and (c). As to count 3 it was specially alleged Johnson personally used and intentionally discharged a firearm within the meaning of section 12022.53, subdivisions (b) and (c). Firearm-use enhancements were also alleged with respect to counts 5 and 7.[2] Johnson pleaded not guilty and denied all special allegations.

In its instructions to the jury the court explained that it was alleged in the two murder counts that Johnson intentionally and personally discharged a firearm and proximately caused great bodily injury to a person other than an accomplice during the commission of the crimes charged. In explaining that special allegation the court instructed, in the language of CALJIC No. 17.19.5, The term great bodily injury means a significant or substantial physical injury. Minor, trivial or moderate injuries do not constitute great bodily injury. The jury was also instructed it need not determine whether the special allegation had been proved unless it found Johnson guilty of attempted murder.

The court additionally instructed the jury with CALJIC No. 17.20, It is alleged in Counts [5] and [7] that in the commission of a felony, the defendants personally inflicted great bodily injury on a person not an accomplice to the crime. [] If you find a defendant guilty of assault with a firearm, a felony, you must determine whether that defendant personally inflicted great bodily injury on some person not an accomplice to the crime in the commision of assault with a firearm. [] Great bodily injury, as used in this instruction, means a significant or substantial physical injury. Minor, trivial or moderate injuries do not constitute great bodily injury. . . . .[3]

The jury found Johnson not guilty of the attempted murder of Guillory and on both the murder and assault charges with respect to Brenson.[4] However, the jury, which had been fully instructed on sudden quarrel, heat of passion and imperfect self-defense, found Johnson guilty of attempted voluntary manslaughter as to Guillory, a lesser included offense of the attempted willful, deliberate and premeditated murder charged in count 1, and also found him guilty of assault with a firearm on Guillory, charged in count 5. Using a special verdict form the jury found true the special allegations Johnson was armed and had personally used a firearm in committing attempted voluntary manslaughter, was armed and personally used a firearm in committing the assault and personally inflicted great bodily injury on some person not an accomplice to the crime in the commission of assault with a firearm.

Johnson was sentenced to an aggregate state prison term of 17 years on count 5: the high term of four years for assault with a firearm, plus the high term of 10 years for the personal use of a firearm in the commission of a felony ( 12022.5, subds. (a), (d)), plus three years for the great bodily injury enhancement found true as to the assault count ( 12022.7, subd. (a)). The court stayed imposition of sentence on count 1 and the related enhancements pursuant to section 654. Finally, the court had previously revoked Johnsons probation, granted following Johnsons conviction in January 2005 of two counts of selling marijuana (Health & Saf. Code, 11360, subd. (a)). After sentencing Johnson to a 17-year term for assault and the related enhancements, the court imposed two additional one-year terms (one-third the middle term) for the drug violations to run consecutively to the 17-year sentence.

DISCUSSION

1. Failure To Plead the Great Bodily Injury Enhancement in Connection with the Charge of Assault with a Firearm Did Not Substantially Prejudice Johnsons Rights

Johnson correctly observes the People failed to specially allege in count 5 of their accusatory pleading, charging Johnson with assault with a firearm on Guillory, that he caused great bodily injury within the meaning of section 12022.7. Accordingly, although the jury was fully instructed as to the elements of the enhancement and found it true beyond a reasonable doubt, Johnson argues the three-year enhancement imposed by the trial court must be reversed.

In pursuing this argument Johnson purports to rely on the language of section 12022.7, subdivision (g), which he asserts requires that enhancements under this section may be imposed only if the fact of great bodily injury is charged in the accusatory pleading and admitted or found to be true by the trier of fact. However in 2002, more than two years before Johnsons crimes, this language, once part of subdivision (g), was deleted from section 12022.7. (Assem. Bill No. 2173 (2001-2002 Reg. Sess.) 6.) Unlike many other enhancement statutes, section 12022.7 by its terms does not require the statute to be specifically pleaded in the information or indictment.

Notwithstanding the absence of a specific statutory requirement that the elements of an enhancement be pleaded, as well as proved, due process requires a criminal defendant be given fair notice of the charges to provide an opportunity to prepare a defense and to avoid unfair surprise at trial. (People v. Toro (1989) 47 Cal.3d 966, 973, disapproved on another ground in People v. Guiuan (1998) 18 Cal.4th 558; People v. Lohbauer (1981) 29 Cal.3d 364, 368-369; see People v. Tardy (2003) 112 Cal.App.4th 783, 786.) Constitutional principles of due process are satisfied, however, as long as the accusatory pleading apprises the defendant of the potential for the enhanced penalty and alleges every fact and circumstance necessary to establish its applicability. (People v. Thomas (1987) 43 Cal.3d 818, 826; Tardy, at p. 787.) Here, the accusatory pleading alleged in connection with the attempted murder charged in count 1 that Johnson had personally discharged a firearm, causing great bodily injury to his victim, Guillory. Although not separately pleaded as to the assault with a firearm count, Johnson was plainly on notice he faced an enhanced penalty for causing great bodily injury when he shot Guillory.

People v. Mancebo (2002) 27 Cal.4th 735 (Mancebo), upon which Johnson also relies, is not to the contrary. In Mancebo, the defendant was charged with various sex crimes against multiple victims. The information also alleged additional facts of firearms use and kidnapping to support an enhancement under the One Strike law ( 667.61). At sentencing the trial court sua sponte substituted for the allegations of firearms use an unpleaded multiple victim circumstance to support application of the One Strike law. The trial court then utilized the gun allegations to impose additional enhancements under section 12022.5, subdivision (a). Ruling this to be error, the Supreme Court held that, because the multiple victim circumstance was not alleged, it could not be used to support the One Strike law. The Court rejected the Peoples argument that the defendant, charged and convicted of crimes against multiple victims, had factual notice of the multiple victim circumstance even though those facts were not alleged as a basis for supporting One Strike sentencing. (Mancebo,at pp. 744-745.) The Court explained that the statute required every fact and circumstance used to support the One Strike law to be alleged in the accusatory pleading. Because the multiple victim circumstance allegation was not specifically alleged as a qualifying basis for the One Strike law, defendant was led to believe that that circumstance would not be used to support One Strike sentencing. (See id. at p. 746.)

Mancebo thus stands for the limited proposition that a defendant is entitled to notice of the specific facts that will be used to support an enhanced sentence. Facts alleged and proved only as part of the substantive crime charged cannot later be used to support a sentencing enhancement. (Mancebo, supra, 27 Cal.4th at p. 749; see People v. Tardy, supra, 112 Cal.App.4th at p. 789.) Johnsons sentence, however, unlike Mancebos, was enhanced based on facts specifically pleaded and proved as enhancements. (See People v. Riva (2003) 112 Cal.App.4th 981, 1003 [failure to plead enhancement under 12022.53 as to the count on which it was imposed did not violate defendants right to adequate notice of the factual bases of the sentence enhancement sought or interfere with defendants ability to defend the charges against him because enhancement alleged as to other counts involving same incident that also went to trial]; see generally 960 [[n]o accusatory pleading is insufficient, nor can the trial, judgment, or other proceeding thereon be affected by reason of any defect or imperfection in matter of form which does not prejudice a substantial right of the defendant upon the merits].)

Even if there were some theoretical merit to Johnsons position, that argument has been waived by his trial counsels express agreement to present to the jury the great bodily injury enhancement to the assault charge. In reviewing the proposed jury instructions with counsel, the trial court paused at the one concerning infliction of great bodily injury on the assault charges and stated, Now, [CALJIC No.] 17.20 is G.B.I. I didnt see any G.B.I. allegations. The prosecutor responded it was on the assault with a firearm counts. The court then said, Really? All right, any objection? and Johnsons counsel agreed, No, its there.[5]Indeed, in pressing his argument to the jury that Johnson was not guilty of either attempted murder or attempted voluntary manslaughter because he had fired his gun in fear and never formed the specific intent to kill Guillory, Johnsons counsel conceded, Mr. Johnson is guilty of a serious felony, assault with a firearm on Teddy Guillory and on Teddy Guillory alone. He then argued, There are also some other allegations you are going to be asked to find in conjunction with that charge [of] assault with a firearm. Should be real simple. Its alleged that he inflicted serious bodily injury. That sure sounds like serious bodily injury to me. Its alleged that he made personal use of a firearm . . . . We are not disputing those things. Im not defending an innocent man here. I have never pretended that I was. Mr. Johnson isnt pretending that he is. Having made the tactical choice not only to permit the jury to decide the great bodily injury allegation but also to concede its truth, Johnson cannot now argue the trial court improperly imposed an additional three-year term based on the jurys true finding. (See People v. Fudge (1994) 7 Cal.4th 1075, 1101 [defense counsels tactical decision not to object to procedural irregularity waives issue].)

2. The Trial Court Relied on an Improper Circumstance in Aggravation in Imposing an Upper Term Sentence for Assault with a Firearm and the Related Firearm Use Enhancement

The trial court sentenced Johnson to the upper term for assault with a firearm (four years), as well as the upper term (10 years) for the related firearm use enhancement, because he was on probation at the time of the offense (Cal. Rules of Court, rule 4.421(b)(4)) and because his crimes are getting more violent (see Cal. Rules of Court, rule 4.421(b)(2) [defendants prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness]), and those two aggravating circumstances outweighed any mitigating circumstances. Johnson contends imposition of the upper term sentences based on facts neither found by a jury to be true beyond a reasonable doubt nor admitted by Johnson violated his right to a jury trial under the Sixth Amendment to the United States Constitution.

In Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856, 166 L.Ed.2d 856], decided after Johnson had filed his opening appellate brief and the People had filed their respondents brief in this case, the United States Supreme Court reaffirmed Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435] (Apprendi), Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403] (Blakely) and United States v. Booker (2005) 543 U.S. 220 [125 S.Ct. 738, 160 L.Ed.2d 621] (Booker), overruled People v. Black (2005) 35 Cal.4th 1238,[6]and held Californias determinate sentencing law (DSL) violates a defendants right to a jury trial guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution to the extent it authorizes the trial judge to find facts (other than a prior conviction) that expose a defendant to an upper term sentence by a preponderance of the evidence. This Court has repeatedly held that, under the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence. (Cunningham, at pp. 863-864.)

Under Californias DSL, an upper term sentence may be imposed only when the trial judge finds an aggravating circumstance. . . . [A]ggravating circumstances depend on facts found discretely and solely by the judge. In accord with Blakely, therefore, the middle term prescribed in Californias statutes, not the upper term, is the relevant statutory maximum. [Blakely, supra,] 542 U.S.[ at p. ]303 (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. . . .). Because circumstances in aggravation are found by the judge, not the jury, and need only be established by a preponderance of the evidence, not beyond a reasonable doubt [citation], the DSL violates Apprendis bright-line rule: Except for 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. [Citation.] (Cunningham, supra, 127 S.Ct. at p. 868.)

Although Cunningham invalidated a significant part of the DSL and generally precludes the trial judge from finding facts or circumstances in aggravation that expose a defendant to an elevated or upper term sentence, the Supreme Court also reaffirmed its prior holdings that the trial court may increase the penalty for a crime based upon the defendants prior convictions without submitting that question to a jury. (Cunningham, supra, 127 S.Ct. at p. 868; see Almendarez-Torres v. United States (1998) 523 U.S. 224 [118 S.Ct. 1219, 140 L.Ed.2d 350]; Blakely, supra, 542 U.S. at p. 301; Apprendi, supra, 530 U.S. at pp. 488, 490.) Prior to the decision in Cunningham (and before the California Supreme Courts decision in People v. Black, supra, 35 Cal.4th 1238), this prior conviction exception to Apprendi and Blakely was construed broadly by California appellate courts to apply not only to the fact of the prior convictions but also to other issues relating to the defendants recidivism, including the defendants status as a probationer or parolee at the time the current offense was committed and the existence of numerous or increasingly serious prior convictions. (See People v. Thomas (2001) 91 Cal.App.4th 212, 221-222 [courts have held that no jury trial right exits on matters involving the more broadly framed issue of recidivism]; see also People v. McGee (2006) 38 Cal.4th 682, 706-707 [numerous state and federal court decisions have interpreted the Almendarez-Torres exception more broadly than defendant urges here, and have concluded that Apprendi does not preclude a court from making sentencing determinations related to a defendants recidivism].)[7]

In this case, to establish Johnsons ineligibility for probation pursuant to section 1203, subdivision (e)(4), the information alleged his two prior felony drug convictions. Johnson admitted those two prior convictions, which had been charged as two counts in a single proceeding, before the jury returned with its verdicts. A reasonable argument can be made these prior convictions alone, established by means that satisfy the governing Sixth Amendment authorities, exposed Johnson to an upper term sentence under the DSL and, as a result, even though the trial judge relied on other aggravating factors (whether or not established by constitutionally permissible means) in exercising his discretion to impose the upper term, Johnsons Sixth and Fourteenth Amendment rights under Cunningham were not violated.[8]Indeed, Justice Kennard in her concurring and dissenting opinion in Black, supra, 35 Cal.4th 1238, made just that argument: Under California law, the existence of a single aggravating circumstance is sufficient to support imposition of an upper term. [Citation.] In this case, the jurys findings pertaining to defendants probation eligibility, and the trial courts findings pertaining to defendants criminal record, were each sufficient to satisfy this statutory requirement, thereby making the upper term the statutory maximum for the offenses. [Citation.] Once the upper term became the statutory maximum in this manner, defendants right to jury trial under the federal Constitutions Sixth Amendment was satisfied, and the trial court on its own properly could ‑‑ and did ‑‑ make additional findings of offense-based aggravating circumstances in support of its discretionary sentence choice to impose the upper term. (Black, at p. 1270 (conc. & dis. opn. of Kennard, J.).)[9]

Even if the presence of a single aggravating factor, established by constitutionally permissible means, does not necessarily end the Cunningham inquiry, moreover, in this case the trial courts sentencing decision was based entirely on two aggravating factors related directly to Johnsons recidivism ‑‑ that he was on probation at the time of the current offense and the increasingly violent nature of his offenses. If the broad construction of the prior conviction exception adopted by California appellate courts before Black and Cunningham remains good law, Johnsons Sixth Amendment challenge to his sentence would similarly lack merit.

We need not resolve these significant constitutional issues, however; for the trial court committed a more basic error that requires a remand for resentencing: an impermissible dual use of facts. As discussed, in addition to the fact Johnson was on probation when he shot and wounded Guillory, the trial court identified as the only other circumstance in aggravation, He is engaging in a pattern more of violent conduct. At least his crimes are getting more violent. It used to be drug sales. Now its using a weapon . . . .[10] Johnsons prior record consisted of a misdemeanor conviction for battery against a former spouse or cohabitant ( 243, subd. (e)(1)) and his two felony convictions for selling marijuana. Whether or not those three past offenses could properly found to be numerous or of increasing seriousness within the meaning of California Rules of Court, rule 4.421(b)(2), as asserted by the People, the trial court did not base its decision to impose upper terms on any qualitative or quantitative analysis of Johnsons prior record but rather on the fact he had used a gun in committing the current offense and had not used a weapon in the past: It used to be drug sales. Now its using a weapon.[11] But the court separately punished Johnson for using a firearm by imposing the section 12022.5 enhancement, as well as for causing great bodily injury by imposing the section 12202.7 enhancement. Neither factor may also be used to impose an upper term sentence.[12] ( 1170, subd. (b) [The court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law]; People v. Scott (1994) 9 Cal.4th 331, 350 [Although a single factor may be relevant to more than one sentencing choice, such dual or overlapping use is prohibited to some extent. For example, the court generally cannot use a single fact both to aggravate the base term and to impose an enhancement, nor may it use a fact constituting an element of the offense either to aggravate or to enhance a sentence]; see Cal. Rules of Court, rule 4.420(c) [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].)

Improper dual use of the same fact for imposition of both an upper term and a consecutive term or other enhancement does not necessitate resentencing if [i]t is not reasonably probable that a more favorable sentence would have been imposed in the absence of the error [Citation.] Only a single aggravating factor is required to impose the upper term. (People v. Osband (1996) 13 Cal.4th 622, 728.) Apart from the constitutional issues arising from Cunningham, supra, 127 S.Ct. 856, it is apparent from the record the trial court could have identified appropriate aggravating factors to justify selection of the upper term sentences for the aggravated assault and the firearm-use enhancement. However, we cannot determine from the transcript of the sentencing hearing whether it is reasonably probable it would have done so, particularly in view of its decision to impose two additional, consecutive one-year sentences on the drug offenses for which Johnson was serving probation. (See People v. Scott, supra, 9 Cal.4th at p. 355 [the statement of reasons is intended to facilitate review of sentencing decisions that otherwise rest within the sound discretion of the trial court. When that court errs in identifying or articulating its sentencing choices, the reviewing court has no choice but to remand the matter for resentencing unless it finds the error nonprejudicial, i.e., it is not reasonably probable that a more favorable sentence would have been imposed in the absence of the error. [Citation.]].) Accordingly, Johnsons sentence on count 5 and the related gun-use enhancement must be vacated, and the matter remanded for resentencing.

DISPOSITION

The judgment is reversed with respect to the imposition of the upper term sentences for assault with a firearm and the related firearm-use enhancement, and the matter is remanded for resentencing. In all other respects the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

PERLUSS, P. J.

We concur:

JOHNSON, J.

WOODS, J.

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[1] Statutory references are to the Penal Code unless otherwise indicated.

[2] McGarrah was charged in the second amended information with the same four crimes but none of the special gun-use enhancements.

[3] On the Peoples motion before the commencement of trial, counts 5 and 7 were amended to charge Johnson and McGarrah with assault with a firearm ( 245, subd. (a)(2)) rather than assault with a semiautomatic weapon ( 245, subd. (b)).

[4] The jury found McGarrah not guilty of all charges.

[5] Counsel for McGarrah also stated he had no objection to the instruction.

[6] On February 20, 2007 the United States Supreme Court vacated the judgment in People v. Black, supra, 35 Cal.4th 1238, and remanded the case to the California Supreme Court for further consideration in light of Cunningham, supra, 549 U.S. ___ [127 S.Ct. 856]. On February 21, 2007 the California Supreme Court directed the parties on remand to submit additional briefs addressing the effect of Cunningham on the issues in the case. (People v. Black, order on remand Feb. 21, 2007, S126182.)

[7] The question whether this is a proper interpretation of the prior conviction exception of Almendarez-Torres v. United States, supra, 523 U.S. 224, as set forth in Cunningham, is currently pending before the California Supreme Court. (People v. Towne, review granted July 14, 2004, S125677, supp. briefing ordered, Feb. 7, 2007 [parties to address the following issue, among others, Do Cunningham v. California, supra, and Almendarez-Torres v. United States (1998) 523 U.S. 224, 239-247, permit the trial judge to sentence defendant to the upper term based on any or all of the following aggravating factors, without submitting them to a jury: the defendants prior convictions as an adult are numerous and of increasing seriousness; the defendant has served a prior prison term; the defendant was on parole when the crime was committed; the defendants prior performance on probation or parole was unsatisfactory (California Rules of Court, Rule 4.421, subds. (b)(2) - (b)(5))?]; People v. Hernandez, review granted Feb. 7, 2007, S148974; People v. Pardo, review granted Feb. 7, 2007, S148914.)

[8] Notably, in weighing the aggravating and mitigating circumstances before imposing sentence, the trial court did not rely on the fact of Johnsons two prior felony drug convictions to select the upper term.

[9] The question whether there is a violation of the defendants rights under Cunningham if the defendant is eligible for the upper term based on a single aggravating factor established by means that satisfy the governing Sixth Amendment authorities even if the trial judge relies on other aggravating factors not established by such means in exercising his or her discretion to impose an upper term sentence is also currently pending before the California Supreme Court. (E.g., People v. Black, supra, S126182; People v. Towne, supra, S125677.)

[10] In her sentencing memorandum the prosecutor identified as additional circumstances in aggravation Johnsons role as one of the initiators of the verbal altercation that led to the shooting, the presence of two other individuals near Johnson when he fired at Guillory and the fact Johnson, a gang member, was asserting his gangs territorial rights at the time of the shooting. The trial court did indicate it was relying on any of those factors.

[11] The presentence report from the probation department identified as circumstances in aggravation, in addition to the fact Johnson was on probation and used a weapon in the commission of the offense, the crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness; and the defendant engaged in a pattern of violent conduct, which indicates a serious danger to society. Johnsons defense counsel argued any violence and resulting injury were inherent in the crimes themselves (attempted voluntary manslaughter and aggravated assault with a firearm) and the related enhancements and were not properly considered circumstances in aggravation. The trial court interrupted his argument to comment, You do know that the probation officers report is merely a recommendation, its not guideline. Thereafter, the trial court did not make any reference to the assertion Johnsons crimes involved great violence or a high degree of viciousness (Cal. Rules of Court, rule 4.421(a)(1)) or the contention Johnson has engaged in violent conduct that indicates a serious danger to society (Cal. Rules of Court, rule 4.421(b)(1)).

[12] Johnsons trial counsel preserved this objection by specifically arguing in the trial court that Johnsons use of a gun could not be used both to enhance his sentence and to impose the upper term.