People v. Linarez

[EDITORS' NOTE: THIS OPINION IS DEPUBLISHED UPON GRANTING OF PETITION FOR REVIEW. THE OPINION APPEARS BELOW WITH A GRAY BACKGROUND.] [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 1395 OPINION

Defendant Raul Rodriguez Linarez fired at a group of rival gang members from a car, wounding the victim in the abdomen. He pled no contest to assault with a firearm (Pen. Code, § 245, subd. (a)(2))1 and admitted that he personally used a firearm in the commission of that offense (§ 12022.5, subd. (a)(1)). Pursuant to the plea agreement, the court dismissed street gang enhancement allegations (§ 186.22, subd. (b)(1)(A), (4)(B)) and a great bodily injury enhancement allegation (§ 12022.55). Defendant was sentenced to the upper term of four years for assault with a firearm and a consecutive term of 10 years for the firearm use enhancement. In entering his plea, defendant agreed to a Harvey waiver (People v.Harvey (1979) 25 Cal.3d 754 [159 Cal.Rptr. 696, 602 P.2d 396]) in which he stipulated that when imposing sentence, the trial court could consider defendant's prior criminal history and the "entire factual background of the case, including any unfiled, dismissed or stricken charges or allegations." We conclude this constituted a waiver of his right to a jury trial on some of the aggravating factors used by the court to impose the upper term. Therefore, we reject defendant's claim of Cunningham error (Cunninghamv. California (2007) 549 U.S. ___ [166 L.Ed.2d 856, 127 S.Ct. 856] (Cunningham)) and will affirm the judgment. *Page 1396 FACTUAL AND PROCEDURAL BACKGROUND When pleading no contest, defendant made two stipulations which resolve the issues raised in this appeal. First, defendant stipulated: "[T]HERE IS A FACTUAL BASIS FOR MY PLEA(S) [AND ADMISSION(S)] AND I FURTHER STIPULATE THE COURT MAY TAKE FACTS FROM PROBATION REPORTS, POLICE REPORTS OR OTHER SOURCES AS DEEMED NECESSARY TO ESTABLISH THE FACTUAL BASIS." Second, he stipulated by Harvey waiver that "THE SENTENCING JUDGE MAY CONSIDER MY 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." Defendant also acknowledged on the plea form that the court could sentence him to a maximum, aggravated term of 14 years, and could impose consecutive sentences. The probation report summarized the facts of the case. Defendant and his codefendant, members of Varrio Chico Norte, a Norteño criminal street gang, drove toward a group of rival gang members after flashing gang signs. When their car was within 10 feet of the group, defendant fired from the passenger window. Defendant admitted in his interview with the probation officer that he pointed the gun to threaten the crowd and fired when the gun did not scare them. The probation report also revealed that at the time of the shooting, defendant was on juvenile wardship probation for two felony counts of violating section 186.22, subdivision (d), engaging in criminal street gang activity. Defendant had been released from placement at a group home three weeks before the shooting because he had reached the age of 18. The probation report indicated that defendant's prior performance on probation had been unsatisfactory.2 At sentencing, the court indicated that it had read the probation report and stated several reasons for imposing the aggravated term for the underlying offense of assault with a firearm: "[T]he court finds that the defendant was on *Page 1397 juvenile probation [at the time of the offense], did unsatisfactory performance. He's shown violent conduct which is a serious danger to society, and those factors alone would justify the upper term in this case of 4 years." The court continued: "Regarding the enhancement, the allegation for the use of the firearm, the firearm was not only used, that is brandished and fired, but it was used in such a way that it caused serious injuries to [the] victim. [¶] It's that factor which supports the imposition of the upper term of 10 years in this case, leading to a gross unstayed term of 14 years. . . ."