(Super. Ct. No. CM030901)
The opinion of the court was delivered by: Blease , Acting P. J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Kenneth John Lamora was charged with murder and being a felon in possession of a firearm. The charges against defendant also included allegations that he personally used a firearm, and personally and intentionally discharged a firearm, proximately causing great bodily injury in the commission of the murder. Defendant pleaded no contest to an amended count of voluntary manslaughter. He admitted as an enhancement to the count of voluntary manslaughter that he personally used a firearm in the commission of the crime. The remaining charges were dismissed pursuant to the plea agreement.
The trial court sentenced defendant to the middle term of 6 years for manslaughter, but imposed the upper term of 10 years for the firearm enhancement.
Defendant argues the trial court cited four facts to support its selection of the upper term, but only one of those facts was not an element of the enhancement, and that fact was not admitted or found true by a jury. As such, he argues, the fact should not have been considered in sentencing, its use resulted in an abuse of discretion, and the upper term on the gun use enhancement should be reversed.
Defendant's contention that only a fact admitted by him could be used to impose an aggravated term is wrong. Penal Code section 1170 has been amended to give the trial court discretion in the choice of possible terms, and in exercising that discretion the court may consider the entire record in the case, including the probation officer's report.*fn1 In imposing sentences under California's determinate sentencing law (DSL) the trial court is no longer constitutionally limited by findings of fact that have been admitted by the defendant or found true by a jury.
The trial court considered facts other than the elements of the weapons enhancement when sentencing defendant to the upper term for the enhancement. Because the court also properly could consider evidence from the probation officer's report, it did not rely solely on the elements of the offense in sentencing defendant to the upper term.
We will affirm the judgment and sentence.
FACTUAL AND PROCEDURAL BACKGROUND
The following facts are taken from the preliminary hearing transcript, which the trial court stated it would use as the factual basis for the plea.
Defendant gave the victim, David Thuemler, a firearm and agreed that Thuemler would sell the gun for $1,000 and give the money to defendant. When defendant did not get the money, he started ...