P.v. Romero

Filed 8/30/07 P.v. Romero CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County,

James R. Brandlin, Judge. Affirmed.

Jerome McGuire, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan Sullivan Pithey and Jason Tran, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________

Stewart Humberto Romero (Romero) appeals from the judgment entered following a jury trial which resulted in his conviction of two counts of assault with a firearm (Pen. Code, 245, subd. (a)(2)),^[1]during each of which he personally used a firearm ( 12022.5) and during one of which he was released on bail
( 12022.1), and his admission he had previously suffered a felony juvenile adjudication within the meaning of the Three Strikes law ( 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). The trial court sentenced Romero to 21 years, four months in prison.

Romeros contentions, that there is insufficient evidence to support the finding he committed one of the assaults, that his trial counsel was ineffective and that the trial court abused its discretion when it denied his motion to strike or dismiss his Three Strikes prior juvenile adjudication in furtherance of justice are without merit. Also without merit is his assertion the trial court violated the mandates of Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham) when it imposed the upper term of 10 years in prison for his personal use of a firearm during an assault. Accordingly, the judgment is affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

1. The December 31, 2004, incident.

Viewed in accordance with the usual rules of appellate review (People v. Rodriguez (1999) 20 Cal.4th 1,11; People v. Johnston (2003) 113 Cal.App.4th 1299, 1303-1304), the evidence established that at approximately 3:30 p.m. on December 31, 2004, Giovanni Rivera (Rivera) was driving west on 139th Street. Riveras two-year-old son was in a childs seat in the back seat of the car. As Rivera came to a stop for the stop sign at Lemoli Avenue, Romero and a male companion approached the car. When Romero was approximately six feet from the car, he pulled a chrome revolver from out of his waist area, aimed the gun at Rivera and said, Whats up? Rivera, who was frightened for his and his childs safety, froze for approximately five seconds, then drove off. When he was approximately 100 yards from the intersection, Rivera looked back and saw Romero walk into the middle of the street, wave his hands up and down and again point the gun in Riveras direction. Rivera continued to drive until he reached the next block. He then pulled over to the side of the road and used his cell phone to call police.

Hawthorne Police Officer Derrick Cabrera (Cabrera) and a number of other officers responded to Riveras call. As Cabrera was checking the area around the intersection of 39th Street and Lemoli Avenue, he walked down a driveway and saw Romero stepping away from a trash can. Cabrera detained Romero and escorted him out to the street where Rivera identified Romero as the man who had aimed a gun at him. After Romero was taken into custody, Cabrera returned to the trash can and searched it. Under a bag of trash, Cabrera found a chrome revolver loaded with five rounds of live ammunition.

2. The February 16, 2005, incident.

At approximately 5:00 p.m. on February 16, 2005, Jean Pierre Salinas (Salinas), and two companions arrived at the apartment complex where Salinas lived. Outside Salinass apartment, located at 13629 Kornblum, was the mother of his child, Ramona Nicole Macia (Macia). Romero was waiting in a car parked in the middle of the street.

Salinas and Macia began to argue and Romero, who was still inside the car, began to yell at Salinas. When Romero referred to Salinas as a punk and a little bitch, Salinas believed Romero was calling [him] out to fight. Salinas walked out to the sidewalk as Romero got out of the car. Romero began throwing [West Side Evil Clan] gang signs and, while holding a screw driver, moved to within 12 or 18 inches of Salinas. Salinas told Romero to drop the screwdriver [and] [f]ight like a man.However, before the altercation could go any further, Macia intervened, told the two men to stop fighting already and got into the car. As Macia and Romero drove off, Salinas and his two companions went inside his apartment.

After approximately 10 to 15 minutes, Salinass two companions went out into the courtyard in front of Salinass apartment. Salinas walked out into the courtyard approximately 30 seconds later. There, he saw Romero, who was standing approximately 14 feet away. Salinass two friends were standing nearby, approximately four feet from Romero. Romero turned, looked at Salinas, mumbled something, pulled out a gun, which he had wrapped in a bandana, and start[ed] shooting. Romero fired three shots, one of which Salinas felt graze his face. As Salinas ran back into his apartment, Romero ran from the area. Salinass stepfather, who was inside the apartment at the time, telephoned the police.

Shortly after the shooting, Detective David Ball (Ball) went to the apartment building on Kornblum. The manager of the building gave Ball a video surveillance tape of the outside of the building. The tape showed Romeros encounters with Salinas.

Hawthorne Police Detective Michael Shimkus (Shimkus) and his partner also went to the apartment building to investigate. From the grass directly in front of Salinass apartment, Shimkuss partner recovered three shell casings. On the fence and the security door to Salinass apartment, Shimkus observed markings indicating the surfaces had been struck by . . . projectile[s].

At approximately 8:45 p.m. on February 16th, Cabrera and several other officers, all acting undercover, went to 3206 West 135th Street to look for Romero. Romero arrived at the location, went up to the building and appeared to have a conversation with someone through a window. When he then turned around and saw the officers, Romero ran to a car, got inside and drove off at a high rate of speed. Cabrera and his partner followed Romero in their undercover police car. After a high speed chase, during which Romero drove on the wrong side of the street and through stop signs, marked patrol cars called to assist were able to stop Romero. Cabrera then arrived at the scene and took Romero into custody.

At trial, the prosecution presented evidence indicating that on February 16, 2005, Romero was out of custody on bail.

CONTENTIONS

Romero contends: (1) there is insufficient evidence to support the finding he assaulted Rivera with a firearm; (2) his trial counsel was ineffective; (3) the trial court abused its discretion when it denied his motion to strike or dismiss his prior juvenile adjudication in furtherance of justice; and (4) the trial court failed to comply with the mandates of Cunningham when it imposed the upper term of 10 years in prison for his personal use of a firearm during the assault of Salinas.

DISCUSSION

1. Substantial evidence supports the jurys finding Romero assaulted Rivera with a firearm.

Romero contends his conviction of assault with a firearm of Rivera must be reversed because there is insufficient evidence to support it. He asserts he did not do an act that naturally and probably would have resulted in an injury to . . . Rivera and that his conduct in pointing a gun at Rivera establishes no more than exhibition of a firearm, a misdemeanor violation of . . . section 417. The contention is without merit.

In reviewing a challenge to the sufficiency of the evidence, we do not determine the facts ourselves. Rather, we examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidenceevidence that is reasonable, credible and of solid valuesuch that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]. [] . . . [I]f the circumstances reasonably justify the jurys findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] We do not reweigh evidence or reevaluate a witnesss credibility. [Citation.] (People v. Guerra (2006) 37 Cal.4th 1067, 1129.) Reversal . . . is unwarranted unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]. [Citation.] (People v. Manriquez (2005) 37 Cal.4th 547, 577.)

An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another. ( 240.) In People v. Williams (2001) 26 Cal.4th 779, 790, the court determined assault does not require a specific intent to cause injury or a subjective awareness of the risk that an injury might occur. Rather, assault only requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another. The court noted that the test of natural and probable consequences is an objective one [citation] . . . . (Ibid.) Accordingly, a defendant who honestly believes that his act was not likely to result in a battery is still guilty of assault if a reasonable person, viewing the facts known to defendant, would find that the act would directly, naturally and probably result in a battery. (Id., at p. 788, fn. 3.)

It has been determined that pointing a loaded gun in a threatening manner at another constitutes an assault because one who does so has the present ability to inflict a violent injury on the other and the act by its nature will probably and directly result in such injury. [Citations.] (People v. Miceli (2002) 104 Cal.App.4th 256, 269; see People v. Raviart (2001) 93 Cal.App.4th 258, 263 [Assault with a deadly weapon can be committed by pointing a gun at another person . . . .].) Here, the uncontradicted evidence established Romero approached Rivera as he was sitting in his car while stopped at a stop sign. When he was approximately six feet from the car, Romero pulled out a loaded revolver and pointed the weapon at Rivera. After Rivera had driven approximately 100 yards down the street, he looked back and saw Romero wave his hands and again point the gun in Riveras direction. This evidence substantially supports the jurys finding Romero assaulted Rivera with a firearm. Even if Romero honestly believed his conduct was not likely to result in a battery, he is still guilty of assault because any reasonable person, viewing the facts known to Romero, would find that his act of pointing a loaded gun at Rivera would directly, naturally and probably result in a battery. (People v. Williams, supra, 26 Cal.4th at p. 788, fn. 3.)

2. Trial counsel was not ineffective.

a. Ineffective Assistance of Counsel.

To prevail on a claim of ineffective assistance of counsel, a defendant must show both that counsels performance was deficient and that the deficient performance prejudiced the defense. [Citations.] Counsels performance was deficient if the representation fell below an objective standard of reasonableness under prevailing professional norms. [Citation.] Prejudice exists where there is a reasonable probability that, but for counsels errors, the result of the proceeding would have been different. [Citation.] (People v. Benavides (2005) 35 Cal.4th 69, 92-93; see Strickland v. Washington (1984) 466 U.S. 668, 687; People v. Carter (2003) 30 Cal.4th 1166, 1211.)
[P]rejudice must be affirmatively proved. [Citations.] It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding. . . . [Citations.] (People v. Cox (1991) 53 Cal.3d 618, 656.) If the defendant makes an insufficient showing with regard to either component, the claim must fail. (People v. Holt (1997) 15 Cal.4th 619, 703.) Moreover, there is no reason for a court deciding an ineffective assistance claim to . . . address both components of the inquiry if the defendant makes an insufficient showing on one. In particular, a court
need not determine whether counsels performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. (People v. Cox, supra, 53 Cal.3d at p. 656.) Finally, as a reviewing court, we defer to counsels reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation] and there is a strong presumption that counsels conduct [fell] within the wide range of reasonable professional assistance. [Citation.] (People v. Hinton (2006)
37 Cal.4th 839, 876.)

b. Trial counsel was not ineffective for failing to request a pinpoint instruction and failing to object to the response given by the trial court to the jurys question regarding exhibiting or brandishing a firearm.

In count two of the information, Romero was charged with assaulting Rivera with a firearm in violation of section 245, subdivision (a)(2). At trial, Romeros counsel requested the trial court to instruct the jury on the lesser related offense of

exhibiting a firearm in violation of section 417.^[2] Relying on the courts decision in

People v. Birks (1998) 19 Cal.4th 108 (Birks),^[3]the trial court denied defense counsels request.

During argument, defense counsel asserted Romero had not assaulted Rivera, but had simply used the gun in a threatening manner. Counsel stated Romeros conduct constituted . . . a brandishing, not an assault. Counsel continued, Now, the prosecutor has discretion to decide what charge to proceed [with] against a defendant. The evidence established that Mr. Romero was in possession of a firearm because Mr. Rivera told you that he was that he pointed a gun at him, and the evidence established that he brandished the firearm at him. Neither one of those charges the People decided not to proceed on them. So they went for all or nothing for the more serious charge, and what they did was they failed to establish that particular charge.

During deliberations, the jury sent a note to the trial court, indicating it wished
to know the legal definition of assault and brandishing. The trial court indicated
its tentative response was to tell the jury that the definition of assault was
contained in instructions already given, CALJIC numbers 9.02, 9.00 and 9.01,
and that the legal definition of brandishing [was] irrelevant because [it had not been] charged . . . . Although Romeros counsel agreed the court was not required to instruct the jury on the elements of exhibiting or brandishing a firearm, counsel objected to that portion of the courts instruction indicating the definition of exhibiting or brandishing a firearm was irrelevant. The trial court noted counsels concern and indicated it understood that counsels theory of the case was, if Romero was the individual who committed the alleged act, that act was at most a brandishing or exhibiting of a firearm and not an assault. After further discussion, defense counsel agreed the trial court could submit to the jury the following response: The elements of assault with a firearm are contained in CALJIC #s 9.02, 9.00 and 9.01. . . . [y]ou were not instructed on the legal definition of brandishing because it is not being charged. Therefore you will not be provided with the elements of that crime.

Later in their deliberations, the jurors asked for a full read back of Riveras testimony. After hearing the read back, the jury found Romero guilty of assaulting Rivera with a firearm.

Romero contends his trial counsel was ineffective for failing to request a pin point instruction defining the crime of exhibition of a firearm so as to allow the jury to adequately consider his defense.^[4] Romero argues [t]he jury could not have understood [his] argument without an instruction explaining the elements of exhibition of a firearm[.]

We initially note that Romeros counsel requested the trial court to instruct the jury on the lesser related offense of exhibiting or brandishing a firearm and that, citing Birks, the trial court properly denied the request. It is unclear what other pin point instruction Romero believes his counsel should have requested. In any event, Romero suffered no prejudice as a result of counsels actions. As we stated above, [p]rejudice must be affirmatively proved. [Citations.] It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding. . . . [Citations.] (People v. Cox, supra, 53 Cal.3d at p. 656.)

Here, the jury was well aware of the theory of Romeros case. During argument, Romeros counsel made it clear the prosecution was pursuing an all or nothing strategy by charging Romero with assault, but no lesser related or included offenses. Counsel asserted, although Romero might have brandished or exhibited a weapon, the prosecution had failed to prove he had committed an assault and, accordingly, the jury was required to find Romero not guilty of that charge. After hearing all the evidence and considering counsels argument, the jury found Romero guilty of assault beyond a reasonable doubt. There is no reasonable probability that, but for counsels [failure to request some form of pin point instruction other than the one she requested,] the result of the proceeding would have been different. (Citation.) (People v. Benavides, supra, 35 Cal.4th 69, 93.)

Neither can counsel be faulted for agreeing to the trial courts response to the jurys request for the legal definition of . . . brandishing. Counsel made certain the trial court did not instruct the jury that the definition of exhibiting or brandishing a firearm was irrelevant to the case. Counsel then, in view of the fact the jury was aware that it was required to make an all or nothing decision, made the reasonable tactical determination that no further instruction need be given. (People v. Hinton, supra, 37 Cal.4th at p. 876 [We defer to counsels reasonable tactical decisions . . . and there is a strong presumption that counsels conduct [fell] within the wide range of reasonable professional assistance. [Citation.]].)

c. Trial counsel was not ineffective for failing to object to gang related evidence.

During a pretrial motion, the prosecutor asserted that, during the altercation between Romero and Salinas, Romero challenge[d] [Salinas] by making [West Side Evil Clan] gang gestures. The prosecutor argued such evidence was relevant to show Romero was attempting to challenge Salinas to a fight. (ART 4)~ Defense counsel indicated she had no objection to [Salinas] testifying to what [Romero] actually said . . . . [Her] opposition [was] to going further than that. After additional discussion, the trial court granted the motion in limine in part and denied it in part. The court stated, Im not precluding the prosecutor from soliciting information from any percipient witness as to what he or she saw or heard. But absent a further offer of proof, I am going to preclude the prosecutor, in his case in chief, from calling additional witnesses to establish what the words Evil Clan mean or whether or not the defendant is affiliated with a gang.

At trial, the following occurred: [Salinas:] Like, I was on the sidewalk. And then, like, I got next to him. And he got off the car, and he was I dont know who was throwing some gang signs and all that. [] [The Prosecutor:] What did he say to you when he got out of the car? [] [Salinas:] Im from West Side. West Side something. He throwing gang signs. [] [The Prosecutor:] Okay. When you say he was throwing gang signs, do you recall what the signs were? [] [Salinas:] Evil Clan. [] [The Prosecutor:] Okay. Did you recognize when he threw the signs what he meant? [] [Salinas:] No. He left the car. He was, like, Oh, Im from West Side Evil Clan and this. [] [The Prosecutor:] Are you familiar with West Side Evil Clan? [] [Salinas:] My baby mommas brother, they are from there. [] [The Prosecutor:] Okay. So you knew when he said West Side Evil Clan, you knew what he meant; is that correct? [] [Salinas:] Yeah. [] [The Prosecutor:] Okay. And you said what was he doing with his hands when he said he was West Side Evil Clan? [] [Salinas:] He was throwing gang signs.

Initially, Romeros counsel cannot be faulted for failing to object to Salinass testimony regarding Romeros statements he was from the West Side Evil Clan and his throwing of gang signs. The evidence was relevant in that it tended to show a motive for Romeros assault on Salinas. After Romero informed Salinas that he was from the West Side Evil Clan, the gang Macias brother belonged to, Salinas still did not back down from Romeros challenge to a fight. It can be assumed Romero then felt compelled to resort to the more intimidating approach of assaulting Salinas with a gun. (People v. Hernandez (2004) 33 Cal.4th 1040, 1049 [Even in cases not involving a gang enhancement, [e]vidence of the defendants gang affiliation . . . can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime.].)

However, even if counsels performance was somehow deficient, admission of Salinass testimony regarding Romeros gang connections caused Romero no prejudice. The evidence Romero assaulted Salinas is overwhelming. Salinas, and one of his companions who was in the courtyard at the time, both testified Romero fired shots at Salinas. The incident was recorded on a video surveillance tape. Three shell casings were found in the grass immediately in front of Salinass apartment and markings on the fence and the security door to Salinass apartment indicated they had been hit by projectiles. Immediately after the shooting, Romero ran from the area. Later that day, when Romero saw police officers, he fled, leading the officers on a high speed chase.

There was also substantial evidence Romero assaulted Rivera and it is unlikely the limited testimony regarding Romeros gang affiliations affected the jurys verdict as to that offense.

Viewing the record as a whole, there is no reasonable probability that, but for counsels failure to object to Salinass limited testimony regarding Romeros asserted gang association, the result of the trial would have been different. (People v. Benavides, supra, 35 Cal.4th 69, 93; see People v. Davis (1996) 42 Cal.App.4th 806, 813 [[T]he use in evidence of appellants gang-affiliation evidence was utterly harmless since the evidence of his guilt was overwhelming.].)

d. Trial counsel was not ineffective for failing to object to the giving by the trial court of a flight instruction.

The trial court instructed the jury with CALJIC No. 2.52 as follows: The flight of a person immediately after the commission of a crime or after hes accused of a crime is not sufficient, in itself, to establish his guilt but is a fact which, if proved, may be considered by you in the light of all the other proved facts in deciding whether the defendant is guilty or not guilty. The weight to which this circumstance is entitled is a matter for you to decide.

Romero contends his trial counsel was ineffective for failing to object to the giving of the instruction because, although it was relevant to the assault of Salinas, it could not pertain to the alleged assault of Rivera. The contention is without merit.

In general, a flight instruction is proper where the evidence shows that the defendant departed the crime scene under circumstances suggesting that his movement was motivated by a consciousness of guilt. [Citations.] [F]light requires neither the physical act of running nor the reaching of a far-away haven. [Citation.] Flight manifestly does require, however, a purpose to avoid being observed or arrested. [Citations.] Mere return to familiar environs from the scene of an alleged crime does not warrant an inference of consciousness of guilt [citations], but the circumstances of departure from the crime scene may sometimes do so. [Citation.] (People v. Smithey (1999) 20 Cal.4th 936, 982, italics omitted.)

In the present case, a police officer responding to Riveras call discovered Romero at the end of a driveway, stepping away from a trash can where he had hidden the gun used in the assault. These facts can be interpreted as showing that Romero fled the immediate scene of the assault in an attempt to avoid being detected or arrested. Under these circumstances, it can be concluded the flight instruction pertained to the assault of Rivera as well as to the assault of Salinas.

Moreover, we note that, in addition to CALJIC No. 2.52, the jury was instructed with CALJIC No. 17.31. That instruction reads: The purpose of the courts instructions is to provide you with the applicable law so that you may arrive at a just and lawful verdict. Whether some instructions apply will depend upon what you find to be the facts. Disregard any instruction which applies to facts determined by you not to exist. Do not conclude that because an instruction has been given [that the court is] expressing an opinion as to the facts.

We may presume the jurors were able to understand and correlate [the] instructions and that they followed the courts instructions. (People v. Sanchez (2001) 26 Cal.4th 834, 852.) Thus, if the jury determined Romero did not flee from the site of the assault of Rivera, it can be presumed it did not rely on the directive given in CALJIC No. 2.52 as to that offense. Viewing the instructions given, taken as a whole, Romeros counsel properly determined there was no need to object to the giving of CALJIC No. 2.52. Counsels conduct in this regard was utterly reasonable under prevailing professional norms. (People v. Benavides, supra, 35 Cal.4th at p. 93.)

3. The trial court properly declined to strike or dismiss Romeros prior juvenile adjudication.

At trial, the court explained to Romero that the information alleged that, following his March 24, 2003, juvenile adjudication, he had been found to have committed the serious or violent felony of shooting at an inhabited dwelling in violation of section 246 within the meaning of the Three Strikes law ( 667, subd. (b)-(i), 1170.12, subd. (a)-(d)). After waiving his right to a jury or court trial, to confront and cross-examine the witnesses against him, to present an affirmative defense and the privilege against self-incrimination, Romero admitted having previously been found to have committed the serious or violent felony.

Romeros counsel made a motion pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero) to strike or dismiss the prior in furtherance of justice
( 1385). Counsel asserted, [A]t the time of the offense in the prior juvenile proceeding, Mr. Romero . . . was not informed of the charge being a strike prior and . . . was not informed of the consequences of the . . . conviction being a strike conviction, that in the future he would suffer the consequences such as those that he is faced with today. . . . I am aware that . . . the court is not required to strike the strike simply because he [was] not informed of the consequences of that conviction. However, it is . . . certainly a factor that the court can consider. And I would request the court to consider, in its sentencing in this matter, the fact that he was not advised and the fact of his youthfulness[, 17 years of age,] at the time of the prior.

After indicating it had reviewed the transcript of the hearing in the juvenile court and the probation officerss reports, the trial court indicated Romeros exposure at the juvenile adjudication, which included an allegation he had committed the shooting at an inhabited dwelling for the benefit of or to promote a criminal street gang, had been 17 years. Instead, Romero was in essence placed on probation. The trial court continued, And within a very short period of time, [Romero has had] two other incidents involving the use of a firearm . . . . [] I dont believe [Romero] is a suitable candidate for the granting of a Romero motion under . . . section 1385. And that request is respectfully denied.

Romero contends the trial court abused its discretion when it denied his motion to strike his prior juvenile adjudication. He initially asserts his criminal history is not significant enough to justify imposition of a Three Strikes sentence. In addition, relying on the courts decision in People v. Thimmes (2006) 138 Cal.App.4th 1207 (Thimmes), he urges the trial court failed to give adequate weight to the fact that he had been unaware that his prior juvenile adjudication could later be used as a Three Strikes prior.

[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation . . . the court in question must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the schemes spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies. (People v. Williams (1998) 17 Cal.4th 148, 161.)

Romeros criminal history can hardly be deemed insignificant. Within a period of less than two years, he committed three offenses, each of which involved the use of a firearm. Two of the three crimes involved actual shootings. In addition, his assault of Salinas occurred while Romero was out of custody on bail. This record places Romero well within the spirit of the Three Strikes sentencing scheme. (People v. Williams, supra, 17 Cal.4th at p. 161.)

Neither does the courts decision in Thimmes, supra, 138 Cal.App.4th 1207, indicate the trial court should have stricken Romeros prior adjudication. In that matter, the defendants 2004 conviction, driving by the victims residence in violation of a restraining order, was determined to be not particularly serious. His prior offense, a 1999 conviction for making a terrorist threat, was characterized as not of a particularly violent nature. (Id. at p. 1211.) At one point, the trial court impliedly found that defendants background, character, and prospects weighed in favor of striking the strike since the court chose not to do so even though his case [was] a pitiful one . . . . (Id. at p. 1213, original italics.) In view of these circumstances, the appellate court determined the trial courts mistaken notion the defendant had been warned that his prior conviction could later be used as a Three Strikes prior carried some weight in the courts determination that [the] defendant fell within the spirit of the Three Strikes law. (Id. at p. 1213.) The appellate court, while acknowledging that when entering a guilty plea, a defendant need not be advised of the possible future use of a conviction in the event the defendant commits a later crime[,] nevertheless determined that, in the case before it, [a]bsent the weight of the presumption [the defendant had been so advised], there was a reasonable probability that the court would have reached a different conclusion and struck the prior conviction. (Ibid.)

As stated above, Romeros current convictions and prior adjudication can hardly be characterized as not particularly serious or not of a particularly violent nature. All three of his offenses involved the use of a firearm and two involved actual shootings. In addition, the trial court, unlike the court in Thimmes, was well aware of the fact Romero had not been advised that his prior adjudication could be used as a Three Strikes prior. Under these circumstances, it cannot be concluded the trial court abused its discretion when it determined Romero could not be deemed outside the [Three Strikes] schemes spirit, in whole or in part . . . . (People v. Williams (1998) 17 Cal.4th 148, 161.) The trial court properly denied Romeros motion to strike his prior juvenile adjudication.

4. The trial court properly imposed the upper term enhancement for Romeros personal use of a firearm.

At sentencing proceedings held on May 5, 2006, the trial court imposed the upper term of 10 years in prison for Romeros personal use of a firearm during the assault of Salinas. (See 12022.5, subds. (a) & (d).) In support of this sentencing choice, the court stated as reasons the number of rounds . . . fired, the proximity of other persons in the immediate area, [and] the defendants act of apparently waiting and planning for the victim.

Romero contends the trial court violated the mandates of the United States Supreme Courts decision in Cunningham v. California, supra, 549 U.S.___ [127 S.Ct. 856], and his Sixth Amendment right to a jury trial when it imposed the upper term enhancement. The contention is without merit.

In Cunningham, the court, relying on its decisions in Apprendi v. New Jersey (2000) 530 U.S. 466 and Blakely v. Washington (2004) 542 U.S. 296, determined the Federal Constitutions jury trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant. (Cunningham, supra, 127 S. Ct. at p. 860, italics added.) Further, the relevant statutory maximum . . . is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. (Ibid., original italics.)

Romeros sentence enhancement was imposed pursuant to section 1170.1, subdivision (d). That section provides in relevant part: When the court imposes a prison sentence for a felony pursuant to Section 1170 . . . , the court shall also impose, in addition and consecutive to the offense of which the person has been convicted, the additional terms provided for any applicable enhancements. If an enhancement is punishable by one of three terms, [as is the section 12022.5 enhancement for a defendants personal use of a firearm,] the court shall impose the middle term unless there are circumstances in aggravation or mitigation, and state the reasons for its sentence choice, other than the middle term, on the record at the time of sentencing. . . . (Italics added.) Accordingly, section 1170.1, subdivision (d) does not require the trial court to make findings of fact in support of its sentencing choice; the trial court must merely state its reasons for imposition of the lower or upper term.

Here, the trial court complied with the statutory requirement by stating three legitimate reasons for its imposition of the upper term for Romeros use of a firearm during his assault of Salinas.^[5] Accordingly, we conclude there was no violation of the courts opinion in Cunningham.

However, even if Cunningham were to apply, there was no error.^[6] We recognize that none of the reasons, or factors, relied on by the trial court to impose the upper term involved a prior conviction, were found by the jury or were admitted by Romero. However, in People v. Black (July 19, 2007, S126182) ___Cal.4th___ [2007 D.A.R. 11041, 11044-11045 (Black II), the court determined that as long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, [including

Cunningham,] any additional fact finding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendants right to a jury trial. (Original italics; see People v. Osband (1996) 13 Cal.4th 622, 728 [A single factor in aggravation is sufficient to support the upper term.].) The Black II court further stated that 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. (People v. Black, supra, ___Cal.4th___ [2007 D.A.R. at pp. 11046-11047].)

Here, Romero admitted previously having suffered a juvenile adjudication which resulted in the finding he shot at an inhabited dwelling in violation of section 246. His admission of this prior rendered Romero eligible for the upper term enhancement. (People v. Black, supra, ___Cal.4th___ [2007 D.A.R. at pp. 11044-11045].) Since this single factor, or circumstance in aggravation, independently satisf[ied] Sixth Amendment requirements and render[ed] [Romero] eligible for the upper term[,] he was not legally entitled to the middle term, and his Sixth Amendment right to a jury trial was not violated by imposition of the upper term [enhancement] for [his personal use of a firearm during the assault of Salinas]. (Id., ___Cal.4th___ [2007 D.A.R. at p. 11049].)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KITCHING, J.

We concur:

KLEIN, P. J.

ALDRICH, J.

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^[1] All further statutory references are to the Penal Code unless otherwise indicated.

^[2] Section 417, subdivision (a)(2) provides in relevant part: Every person who, except in self-defense, in the presence of any other person, draws or exhibits any firearm, whether loaded or unloaded, in a rude, angry, or threatening manner, or who in any manner, unlawfully uses a firearm in any fight or quarrel is punishable . . . by imprisonment in a county jail . . . . The crime of exhibiting or brandishing a firearm is a lesser related offense of assault with a firearm. (People v. Steele (2000) 83 Cal.App.4th 212, 218.)

^[3]InBirks, supra, 19 Cal.4th at p. 136, the court rejected its previous holding that a criminal defendant has a unilateral entitlement to instructions on lesser offenses which are not necessarily included in the charge. The court indicated its decision withdrew the procedural opportunity for conviction of a reduced offense not encompassed by the accusatory pleading and selected solely by the defendant. (Ibid., italics omitted; see People v. Schmeck (2005) 37 Cal.4th 240, 292 [[A] trial court has no duty to instruct on an uncharged lesser related offense when requested to do so by the defendant.].)

^[4] Pinpoint instructions relate particular facts to a legal issue in the case
or pinpoint the crux of a defendants case . . . . (People v. Rogers (2006)
39 Cal.4th 826, 878.)

^[5] We note that the number of rounds . . . fired and the proximity of other persons in the immediate area are not circumstances in aggravation listed in the California Rules of Court. However, the trial court could properly rely on them as reasons for imposing the upper term. A trial court may consider aggravating circumstances not set forth in rules or statutes. Such aggravating circumstances need only be reasonably related to the decision being made. (People v. Sandoval (July 19, 2007, S148917) ___Cal.4th___ [2007 D.A.R. 11051. 11055], citing Cal Rules of Court, rule 4.408(a).) The circumstances, that Romero fired multiple shots at Salinas while others were standing nearby, are reasonably related to the trial courts decision to impose the upper term for Romeros personal use of a firearm.

^[6] The Peoples assertion Romero forfeited any right to challenge the upper term sentence enhancement because he failed to object to its imposition in the trial court is without merit. In People v. Sandoval, supra,___Cal.4th___ [2007 D.A.R. at p. 11054,
fn. 4], citing People v. Welch (1993) 5 Cal.4th 228, 237-238, the court indicated an objection in the trial court is not required if the objection would have been futile. At the time Romero was sentenced, the California Supreme Courts decision in People v. Black (2005) 35 Cal.4th 1238 (Black I) governed. In Black I the court determined the judicial fact finding which occurred when a judge exercised discretion to impose an upper term sentence did not implicate a defendants right to a jury trial. (Id. at p. 1254.) Since the trial court was bound by the Black I decision (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 456), trial counsel cannot be faulted for failing to have objected to the imposition of the upper term on the ground the jury should have found the aggravating factors beyond a reasonable doubt. (People v. Sandoval, supra, ___Cal.4th___ [2007 D.A.R. at p. 11054, fn.4].) Such an objection would have been futile.