IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Butte)
December 27, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
KENNETH JOHN LAMORA, DEFENDANT AND APPELLANT.
(Super. Ct. No. CM030901)
The opinion of the court was delivered by: Blease , Acting P. J.
P. v. Lamora
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 looking for Thuemler to get his money or his gun back.
Defendant found out that Thuemler was at the residence of John Davis. Defendant armed himself with a Glock handgun and obtained a shotgun for co-defendant Robert Busch. The two arrived at Davis's house around 1:30 a.m. Defendant loaded his gun, then he and Busch exited his vehicle, and defendant entered the house. As defendant walked up to the house, he chambered a round into the gun. He went inside the house, and saw Thuemler sitting on the couch. When confronted, Thuemler tried to reach for something in his pants pocket. Defendant rushed toward Thuemler and pinned him down. Defendant released Thuemler when he thought he had stopped fighting, but Thuemler again started to reach for his pocket. Defendant grabbed Thuemler's right hand, and Thuemler grabbed defendant's right hand. Defendant's gun went off during the course of the struggle.
Defendant left the scene, believing he had only inflicted a grazing wound. In fact, the bullet severed an artery, and Thuemler subsequently bled to death.
Defendant was initially charged with murder and two counts of possession of a firearm by a felon. As to the murder count, it was alleged defendant personally and intentionally discharged a firearm which proximately caused great bodily injury and death to the victim pursuant to section 12022.53, subdivision (d), and personally used a firearm within the meaning of sections 12022.5, subdivision (a) and 12022.53, subdivision (b).
Defendant later pleaded no contest to a new charge of voluntary manslaughter, and admitted that he personally used a firearm within the meaning of section 12022.5.*fn2 The remaining counts and allegations were dismissed.
Defendant further agreed to a maximum sentence of 21 years in state prison. Defendant signed a written waiver form that he understood that the matter of sentencing would be determined solely by the superior court judge, and that the judge could consider his "prior criminal history and the entire factual background of the case, including any unfiled, dismissed or stricken charges or allegations or cases when granting probation, ordering restitution or imposing sentence."
At the sentencing hearing, defense counsel offered to stipulate that the factual basis for the plea could be taken from the probation report, but the court stated it would take the factual basis from the preliminary hearing transcript.
The trial court sentenced defendant to the middle term of 6 years on the voluntary manslaughter count, and the upper term of 10 years on the weapons enhancement, for a total of 16 years. The court gave the following reason for imposing the upper term on the enhancement: "Here the defendant entered a third party's residence with a loaded firearm for the purpose of confronting another who the defendant had known was -- knew was commonly armed in order to retrieve a firearm. Once in the residence the defendant deliberately chambered a round and pointed the gun at the victim. And for . . . those reasons the Court is selecting the upper term as the appropriate term; that being ten years."
The fact that defendant pointed a gun at the victim was set forth in the probation officer's report, but was not part of the evidence offered in the preliminary hearing.
Defendant argues that the trial court could not rely on the probation report (and consequently the fact that he pointed the gun at the victim) when sentencing him because: (1) any aggravating fact used to increase his sentence must be admitted by him, and (2) the factual basis for the plea was the preliminary hearing testimony, thus he admitted only the facts set forth in the preliminary hearing. Defendant then asserts that one critical fact, that he pointed the gun at the victim, was set forth only in the probation report; therefore, it was not a fact upon which the trial court could rely when imposing the sentence. Finally, he reasons that because the trial court could not consider the fact that he pointed the gun, the only facts left in the court's explanation of its choice of the upper term were facts that comprised the elements of the enhancement. Since a fact that is an element of the crime, or in this case the enhancement, cannot be used to impose the upper term, he reasons the trial court abused its sentencing discretion when it imposed the upper term.
Defendant's chain of reasoning comes apart at the first link. Even if the sole factual basis for the plea was the preliminary hearing testimony, the court is nevertheless entitled to rely on the probation report at sentencing. It could certainly do so in this case, where defendant agreed in writing that the court could consider the "entire factual background of the case" when sentencing defendant.
Defendant relies on People v. French (2008) 43 Cal.4th 36, 50, which in turn relied upon Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856] for the proposition that where the defendant has entered a plea of guilty or no contest, an upper term may not be imposed except when based on circumstances admitted by the defendant. His reliance is misplaced.
California's DSL suffered, prior to 2007, from a "constitutional defect" because it mandated imposition of the middle term unless there were circumstances in aggravation or mitigation of the crime. (People v. Sandoval (2007) 41 Cal.4th 825, 836, 844 (Sandoval).) "[F]or Sixth Amendment purposes, the middle term under the DSL [was] the maximum term that [could] be imposed on the basis of the jury's verdict alone." (Id. at p. 836.) Under the prior DSL, any fact, other than a prior conviction, which was necessary to support the upper term had to be admitted by the defendant or proved to a jury beyond a reasonable doubt. (United States v. Booker (2005) 543 U.S. 220, 244 [160 L.Ed.2d 621, 650].) However, effective March 30, 2007, additional factual findings are no longer necessary to impose an upper or lower term. (Stats. 2007, ch. 3, § 3; Sandoval, supra, 41 Cal.4th at p. 844.) Defendant was sentenced on September 8, 2010. Accordingly, it was not necessary for the trial court to rely on facts admitted by defendant when sentencing him to the upper term. Instead, as set forth in section 1170, subdivision (b), the choice of term rested within the "sound discretion" of the court. The court was required to set forth the reasons for imposing the term selected, and in establishing its reasons could consider the probation officer's report. (§ 1170, subd. (b).) Thus, the court could and did consider the following statement from the probation officer's report: "Mr. LaMora said he entered the residence and located the victim sitting on the couch. He stated he immediately chambered one round into his firearm, pointed the gun and said, 'Where's the gun? Where's my fucking gun, Billy?'"
Having determined that the trial court correctly considered the pointing of the gun when exercising its discretion to impose the upper term, we can quickly dispense with defendant's remaining arguments. Defendant claims the only factors the court properly could consider in imposing the upper term were encompassed by the elements of the enhancement, resulting in an improper dual use of facts. However, in addition to the fact that defendant pointed the gun at the victim, the trial court also considered that the gun was loaded. Neither of these facts are elements of the gun use enhancement. Either of them alone would have been sufficient to support the upper term. (See People v. Black (2007) 41 Cal.4th 799, 815 ["the presence of one aggravating circumstance renders it lawful for the trial court to impose an upper term sentence."].)
A court may not use a fact constituting an element of the offense, or in this case the enhancement, to impose a greater term. (People v. Scott (1994) 9 Cal.4th 331, 350; Cal. Rules of Court, rule 4.420 (d).) Defendant argues the three factors cited by the court (chambering a round, knowing the victim would be armed, and entering with a loaded firearm) were essentially nothing more than the elements of the enhancement. Not so.
"The elements of a personal use enhancement are a mental state, a prohibited act, and an attendant circumstance. The mental state is general intent. The prohibited act is the use of a firearm . . . . The attendant circumstance is that the use of the firearm occurred 'in the commission of' the offense, which has been construed to mean that the use facilitated the offense." (People v. Wardell (2008) 162 Cal.App.4th 1484, 1496.) It is not necessary for purposes of section 12022.5 that the gun be loaded. (People v. Nelums (1982) 31 Cal.3d 355, 359; People v. Wolcott (1983) 34 Cal.3d 92, 102.) A firearm use enhancement also does not require that the defendant point the gun at the victim. (People v. Carrasco (2006) 137 Cal.App.4th 1050, 1059.) Since neither of these facts are elements of the gun use enhancement, the trial court properly considered the fact that defendant entered the residence with a loaded firearm and chambered the weapon when it imposed the upper term.
The trial court properly took the facts it considered in aggravation from both the probation officer's report and the factual basis for the plea (the preliminary hearing). Since the aggravating factors considered by the trial court were substantiated by the record in the case, including the probation officer's report, the court exercised its discretion within the bounds of section 1170, subdivision (b). There was no abuse of discretion.
The judgment is affirmed.
We concur: NICHOLSON , J. DUARTE , J.