PEOPLE v. HOLLIS

A122295.

THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER LESTER HOLLIS, Defendant and Appellant.

Court of Appeals of California, First Appellate District, Division Two.

Not to be Published in Official Reports


RICHMAN, J.

This case is a tragic example of what can happen when people resort to firearms as a method of conflict resolution. Defendant Christopher Hollis shot and killed Meleia Willis-Starbuck, a young Dartmouth college student with a very bright future ahead of her, when he repeatedly fired a gun in a grossly misguided attempt to diffuse a conflict between Willis-Starbuck and a group of football players from the University of California, Berkeley. Apparently intending to merely fire a warning shot, defendant instead brought an abrupt end to the life of a friend whom he considered his "sister." After a jury convicted defendant of voluntary manslaughter with a firearm enhancement, assault with a firearm enhancement, and possession of a firearm by a felon, defendant was sentenced to 24 years in prison, which included the upper term on both the manslaughter count and its enhancement. He challenges that sentence, claiming the trial court violated his Sixth and Fourteenth Amendment rights to a jury trial and the prohibition against the dual use of an aggravating factor. He also contends that the trial court erred by failing to state a legitimate justification for imposing a consecutive sentence on the possession of a firearm count. We disagree and affirm.

FACTS AND PROCEEDINGS BELOW

In the early morning hours of July 17, 2005, Willis-Starbuck and a group of her female friends were out for a night of partying in the city of Berkeley. After going to two parties where some of them, including Willis-Starbuck, consumed alcohol, the women stopped by an apartment on College Avenue where Willis-Starbuck was staying for the summer. They spotted some friends across the street in front of a University of California dormitory and went over to visit for a while. Around the same time, an event being held in a common area of the dormitory was letting out, and a number of people, including some members of the university's football team, were milling around in the dormitory courtyard. After a while, the women decided to leave and began walking back to their car, which was parked across the street in front of Willis-Starbuck's apartment. As they did so, they encountered at least five football players who were likewise walking across the street to a parked car. Some of the men began talking to the women, and although the conversation started off innocently, it shortly turned hostile when some of the men became aggressive, grabbing and touching the women inappropriately. When the women rebuffed the attention, the men became angry and started calling them derogatory names. After one of the men told another that one of the women looked like Chewbacca,1 a loud argument ensued, with Willis-Starbuck one of the main participants in the confrontation.

At one point, Willis-Starbuck walked away from the group to make a call on her cell phone. One of the men testified at defendant's trial that he heard her urgently say, "I need you to hurry up and get over here with your pistol."

Approximately 10 to 20 minutes into the confrontation, all of the women got into their car except for Willis-Starbuck, who remained outside and continued to argue with some of the men. As she was standing there, gunshots rang out, and Willis-Starbuck fell to the ground, where she soon died from a gunshot wound to the torso. Upon hearing the gunshots, the men all took off running. One of them, Gary Doxy, later noticed that his wrist was bleeding from what was apparently a superficial bullet wound.

A criminalist for the People testified at defendant's trial that the bullet recovered from Willis-Starbuck's body had an indentation that he believed was caused by contact with bone. He also noted that the entry wound was round, indicating a straight shot.

A defense criminalist testified, however, that the bullet was damaged in a manner suggesting it had struck something hard, and that nothing in the body would cause that kind of damage. The bullet also had traces of a clear residue like glass or plastic that, he opined, it scraped off another object through which it passed. He concluded, therefore, that the bullet must have struck something after it was fired but before it hit Willis-Starbuck. On cross-examination, the criminalist admitted it was possible that the residue could have been deposited there when the bullet was cleaned after the autopsy. He also acknowledged that the entry wound from a bullet that has ricocheted is typically oblong and oval, unlike the entry wound on Willis-Starbuck, which was round.

Christopher Wilson, who had known defendant since seventh grade and was with him at the time of the shooting, testified at trial, giving the following account.

On the evening of July 16, 2005, Wilson, defendant (who went by the nickname "C4"), and two other friends—one male and one female—went to series of parties in Berkeley. Wilson was driving because defendant did not have a car. Sometime after midnight, when they were at their third party, defendant received a call on his cell phone and approached Wilson to tell him they had to go help Willis-Starbuck who was involved in an argument with a group of people. Wilson did not want to leave so they stayed at the party for a little while longer. About 10 minutes later, defendant again approached Wilson, this time insisting more urgently that they leave because people were still at Willis-Starbuck's place and were bothering her. All four of them then left the party and, after dropping off their female friend, the three men continued on to Willis-Starbuck's apartment. As they approached the apartment building, they saw a group of six to twelve men standing outside. Wilson did not notice any women, including Willis-Starbuck. Upon seeing the size of the group, Wilson, who did not know defendant was carrying a gun and was anticipating a fistfight at the very worst, determined he was not going to get out of the car to fight.

After they drove past the group of men and turned a corner, defendant told Wilson to stop the car. Defendant then got out, ran down the street in a crouched position, raised his arm, and fired four or five shots toward the group of people. According to Wilson, when defendant fired the shots, his arm was not parallel to the ground but rather was angled slightly upward, at roughly a 45 degree angle. Defendant then ran back to the car and got in. Their friend was asking, "What was that? Was that fire works?" Defendant responded, "That was me. I'm for sure," and "I ran them cats off the block" or "I ran them n****** off the block." They then drove off and went to a friend's house, where they later learned Willis-Starbuck had been shot and killed.

The prosecution and defense presented additional testimony concerning the position of defendant's arm when he fired the shots. The prosecution sought to establish that defendant fired into the crowd of people, while the defense attempted to prove that he fired into the air, accidentally killing Willis-Starbuck with a ricochet bullet.

A witness who was sitting in his parked car near the scene of the confrontation testified that he heard what sounded like a car backfiring. He looked up and saw defendant standing on the corner of a nearby intersection with his arm extended parallel to the ground and pointing straight ahead. One to two seconds after the witness heard the first shot, he saw a "muzzle flash" that accompanied a second shot. When he saw the muzzle flash, defendant's arm was still outstretched parallel to the ground. Six or seven seconds later, defendant ran to a parked car and got in, and the car drove away.

One of the football players involved in the confrontation testified that after he heard the first gunshot, he looked in the direction of where it came from and saw the shooter in the distance, with his arm up in the air at an angle. This was consistent with his statement to the police shortly after the shooting. On cross-examination, however, he admitted that at the time of the shooting, his vision was poor so he could not be certain of the shooter's arm's position.

Defendant was identified as a suspect soon after the shooting, and on September 23, 2005, he was arrested in Fresno after two months on the run.

By amended information filed in September 2007, the Alameda County District Attorney charged defendant with murder (Pen. Code, § 187, subd. (a)2; count one) with personal use of a firearm (§§ 12022.5, subd. (a)(1), 12022.7, subd. (a)(1), 12022.53, subds. (b)-(d)); assault with a firearm (§ 245, subd. (a)(2); count two) with personal use of a firearm (§§ 1203.06, subd. (a)(1), 12022.5, subd. (a)); and possession of a firearm by a felon (§ 12021, subd. (a)(1); count three). It was also alleged that defendant had a prior felony conviction for possession of marijuana for sale (Health & Saf. Code, § 11359).

Trial commenced on April 1, 2008, and following seven days of testimony, a jury acquitted defendant of murder but convicted him of the lesser included charge of voluntary manslaughter and found true the allegation that he personally used a firearm. The jury also found defendant guilty of assault with a firearm enhancement and possession of a firearm by a felon.

A sentencing hearing was held on July 11, 2008. Numerous friends and family members of Willis-Starbuck spoke at the hearing and submitted written statements concerning the impact her life and death had on them. Others submitted written statements in support of defendant, and defendant himself spoke at the hearing, apologizing for the "accident" that took Willis-Starbuck's life. At the conclusion of the hearing, having considered all of the information submitted, including the probation report and letters from the prosecutor and defense counsel, the trial court denied probation and sentenced defendant to 24 years in state prison as follows:

"With respect to count one, Mr. Hollis was convicted by a jury of voluntary manslaughter. The court is going to use the aggravated term of 11 years. Eleven years is because he was on probation, he has a prior felony conviction, this crime involved great violence and the defendant used the firearm.

"Also as part of count one is the use of a firearm clause. Under 12022.5, the court is going to use the aggravated term for the same reasons. Under that statute, that count or that clause must run consecutively to the 11 years in count one.

"As to count two, Mr. Doxy's count—so the principal term will be count one, Madame Clerk. Count two then is subordinate term, that is the 245 assault with a firearm of Gary Doxy. One-third the midterm is one year in state prison.

"With respect to the use of a firearm clause that is 16 months or one year, four months. Again, that must, by statute, run consecutively. The one year and one year and four months in count two is to run consecutively to count one because it is a separate victim.

"Count three is the ex-felon in possession of a firearm. One-third the midterm is eight months in state prison. The court is going to sentence Mr. Hollis to eight months in state prison. That is going to run consecutively to count one and count two in this matter because Mr. Hollis was not supposed to be in possession of a firearm, being convicted as a felon already.

"So that will be a total of 24 years in the state prison."

This timely appeal followed.

DISCUSSION

A. The Trial Court Did Not Violate Defendant's Sixth and Fourteenth Amendment Rights or the Prohibition Against Dual Use of Aggravating Circumstances When Imposing the Upper Term on the Voluntary Manslaughter Conviction and the Firearm Enhancement

It is well established that when a trial court is making a sentencing selection, "[o]nly a single aggravating factor is required to impose the upper term." (People v. Osband (1996) 13 Cal.4th 622, 728; People v. Castellano (1983) 140 Cal.App.3d 608, 614-615.) It is also undisputed that a trial court may not make a dual use of a factor to aggravate the term for an offense and to enhance that term. (People v . Scott (1994) 9 Cal.4th 331, 350.) But defendant claims that the trial court did just that. His argument runs as follows: When the trial court selected the upper term on the manslaughter conviction, it cited the following circumstances in support: "[H]e was on probation, he has a prior felony conviction, this crime involved great violence and the defendant used the firearm." When imposing the upper term on the firearm enhancement, the court relied on the "same reasons." According to defendant, although the court cited four factors, in fact only one circumstance—violation of probation—was valid. This is so because two of the factors—that the crime involved great violence and that defendant used a firearm—were unsupported by the jury verdict, and reliance thereon violated defendant's Sixth and Fourteenth Amendment rights. (See Cunningham v. California (2007) 549 U.S. 270; People v. Lincoln (2007) 157 Cal.App.4th 196, 202.) And a third factor—defendant's prior felony conviction—was, he claims, an insignificant factor that neither the probation department nor the prosecution cited as an aggravating factor and that the court expressly rejected as a factor relevant to sentencing. This leaves, defendant submits, just one aggravating circumstance—that he was on probation at the time he shot Willis-Starbuck—and the court could not rely on just that one factor to aggravate the term for the manslaughter conviction and to enhance that term. We are not persuaded.

Putting aside the two factors cited by the trial court that defendant contends were unsupported by the jury verdict (that the crime involved great violence and defendant's use of a firearm), we are left with two remaining factors: defendant was on probation and had a prior felony conviction. Defendant concedes that the court properly imposed the upper term on the voluntary manslaughter conviction based on his probation violation. (See Cal. Rules of Court, rule 4.421(b)(4)3 [that a defendant committed current offense while on probation constitutes an aggravating circumstance for sentencing purposes]; People v. Towne (2008) 44 Cal.4th 63, 79 ["the federal constitutional right to a jury trial and proof beyond a reasonable doubt on aggravating circumstances does not extend to the circumstance that a defendant was on probation or parole at the time of the offense"].) Thus, the question is whether defendant's prior felony conviction was sufficient to justify the upper term on the gun enhancement. We conclude that it was.

During trial, defendant stipulated to the fact of his prior felony conviction so he does not—indeed cannot—dispute its existence. And he does not dispute that the court may properly consider a prior felony conviction to be an aggravating circumstance.4 Instead, defendant challenges the court's reliance on his particular felony conviction—for possession of marijuana for sale—contending that "[t]he trial court did not believe the marijuana for sale conviction was of any importance to the sentencing determination" such that, standing alone, it does not justify the upper term. He offers three theories in claimed support of this position. Each theory fails.

First, defendant maintains that the court expressly rejected the conviction as an aggravating factor relevant to his eligibility for probation. This claim, however, is based on a misinterpretation of the record.

At the sentencing hearing, the court solicited input from defense counsel about the probation report, which indicated that defendant was statutorily ineligible for probation and recommended that he receive a sentence close to the maximum exposure of 24 years. Counsel responded by disputing certain of the criteria affecting probation and circumstances in aggravation, and offering additional circumstances in mitigation. As pertinent here, counsel argued that defendant's prior criminal conduct was irrelevant: "Rule 4.421(b)(1), the suggestion that Mr. Hollis has engaged in violent conduct. It appears to be a past tense circumstance in aggravation, suggesting that he had some history of violent conduct. I don't believe that to be the case. I would ask the court to disregard 4.421(b)(1)." The trial court responded in relevant part, "Mr. Syren [defense counsel] has objected to (b)(1) as well, and I'll accept that as well."

From this, defendant concludes that the trial court found defendant's prior conviction not to be an aggravating factor, explaining: "Prior to this ruling, the court had rejected two possible other aggravating factors promoted in the probation report: `In terms of Rule 4.421(a)(4), I don't think the defendant induced Mr. Chris Wilson to drive to the scene to then commit the murder. . . . He didn't induce Chris Wilson to be part of the murder. I think it was simply to get down to the scene. [¶] I'm not going to accept rule (a)(8). I don't believe this was a planned, sophisticated assault.' [¶] Immediately after rejecting two of the probation department's determinations of aggravating factors, the trial court then stated, `And [defense counsel] has objected to [California Rules of Court, rule 4.421](b)(1) as well, and I'll accept that as well.' In the context of the court's rejection of other possible aggravating factors, the inclusion of `as well' meant that the court was accepting the defense objection to the inclusion of the prior felony as an aggravating factor."

This is simply an incorrect construction of the record. A reading of the sentencing transcript in its entirety makes clear that when the court referred to "accepting" in the context of the aggravating and mitigating circumstances, "accepting" meant accepting the circumstance as an applicable factor that the court would consider, not accepting defense counsel's objection thereto. Where the court disagreed that an aggravating or mitigating circumstance was applicable, the court did not "accept" that factor. This interpretation is consistent with the manner in which the court used the terms throughout the hearing, and we have no doubt that is what it meant. Thus, and contrary to defendant's assertion, the court did not agree with the defense objection to consideration of defendant's prior felony conviction, but rather considered his criminal history an applicable aggravating factor.

Next, defendant argues that the prior felony was "never promoted as an aggravating factor by the probation department . . . ." We first note that as to criteria affecting probation, the probation report noted, "The defendant's prior record of criminal conduct indicated a pattern of criminal behavior." (See Rule 4.414(b)(1) ["Prior record of criminal conduct, whether as an adult or a juvenile, including the recency and frequency of prior crimes; and whether the prior record indicates a pattern of regular or increasingly serious criminal conduct."].) Therefore, while the probation department did not cite defendant's prior felony as a circumstance in aggravation, it clearly considered it relevant to sentencing. But more significantly, the trial court is not bound by the probation department's determinations (People v. Warner (1978) 20 Cal.3d 678, 683), so the department's omission of defendant's prior felony conviction as a factor in aggravation is of no consequence.

Third, defendant argues that "[t]he trial court never mentioned the prior marijuana felony specifically until it made the final sentencing order . . . ." This is unavailing, most obviously because the court cited the prior conviction as a justification for imposition of the upper term. As the People succinctly put it, "The fact remains that the court considered [defendant's] prior felony conviction sufficiently significant to cite it as one of the reasons for imposing the upper term." That alone is enough. We further add, however, that appellate courts have affirmed an upper term sentence based on the existence of an aggravating factor on which the trial court did not even rely. (See People v. Stuart (2008) 159 Cal.App.4th 312, 314 ["although the court did not mention defendant's six prior misdemeanor convictions as a reason for imposing the upper term, those convictions qualified as an aggravating circumstance" that made defendant eligible for the upper term].) This being the case, certainly a factor that the court specifically cited at the time of sentencing is sufficient justification for imposition of the upper term.

In light of the foregoing, we reject defendant's premise that the trial court considered his prior felony conviction to be so insignificant that it was irrelevant to the sentencing decision.

Defendant places heavy reliance on People v. Lincoln, supra, 157 Cal.App.4th 196, but the case does not help his cause—and in fact undermines it. In Lincoln, the trial court imposed the upper term on one count of assault and an enhancement for personal use of a firearm. The factors justifying the upper terms were "the circumstances of the offense, particularly vulnerable victims, planning, the opportunity to deliberate and consider the course of action, the close proximity of the victims, and the inherent high risk to the victim. . . ." (Id. at p. 202.) The Court of Appeal vacated the sentence, holding that "[t]he imposition of the upper terms on the bases relied upon by the trial court violated the Sixth Amendment" because such factors "require[d] factual determinations beyond those necessarily encompassed by the jury verdict." (Ibid.) Such error was not harmless because the court could not conclude that a jury would have found true at least one aggravating circumstance beyond a reasonable doubt. (Ibid. )

To defendant's detriment, however, the Lincoln court specifically observed that with respect to resentencing on the section 12022.5 enhancement, the same as at issue here, defendant had prior criminal convictions which the trial court could rely on, alone or in conjunction with other factors, to justify the upper term. (People v. Lincoln, supra, 157 Cal.App.4th at p. 206.) Likewise here, defendant had a prior felony conviction that the trial court specifically cited as an aggravating circumstance. This is sufficient to support the upper term. (See People v. Black, supra, 41 Cal.4th at p. 819; People v. Osband, supra, 13 Cal.4th at p. 728.)

Defendant questions "whether it is reasonable to assume that the trial court would have assessed an upper term on the gun enhancement based solely on the prior marijuana for sale conviction."5 He suggests the answer is "no," again falling back on his claim that the court did not believe the conviction was important to the sentencing decision. As detailed above, there is no merit to this claim. To the contrary, we are confident that the trial court would have imposed the upper term if the only aggravating circumstance was defendant's prior felony conviction. The record makes clear that the trial court considered defendant deserving of a lengthy prison sentence. While the court believed defendant was remorseful for killing Willis-Starbuck, it was of the opinion that defendant was not remorseful for having shot into a crowd of people. The court imposed the upper term on the manslaughter conviction and the firearm enhancement and consecutive sentences on counts two and three. Thus, given the court's apparent belief that defendant was deserving of the maximum sentence, we have no doubt it would have imposed the upper term on the firearm enhancement based solely on defendant's prior felony conviction.

In sum, upper terms on the manslaughter conviction and firearm enhancement were both supported by different aggravating circumstances and as such, there was no violation of the prohibition against dual use of an aggravating factor. Further, because the upper term sentence was justified without reliance on the two circumstances that require a jury verdict, defendant's claim that his Sixth and Fourteenth Amendment rights to a jury trial were violated fails as well.6 We note in closing that because defendant does not argue the trial court abused its discretion in imposing the aggravated term on the section 12022.5 enhancement, we need not address that issue.7

B. The Trial Court Properly Imposed Consecutive Sentences on Counts Two and Three

In his opening brief, defendant challenges the consecutive sentences on count two (assault on Gary Doxy) and count three (felon in possession of a firearm) on the ground that the trial court failed to state any reasons for the imposition of consecutive sentences. In reply, however, he concedes that a consecutive sentence on count two was proper given that the count involved a separate victim. He therefore drops his challenge to that issue.

As to count three, however, defendant maintains that the trial court failed to provide a viable reason for a consecutive sentence, instead merely restating the crime of which defendant was convicted: "[Count three] is going to run consecutively to counts one and count two in this matter because Mr. Hollis was not supposed to be in possession of a firearm, being convicted as a felon already." This, he contends, runs afoul of the requirement that the trial court state valid reasons for imposing a consecutive sentence. (See § 1170, subd. (c); People v. Price (1984) 151 Cal.App.3d 803, 822-823.)

Defendant acknowledges that his trial counsel failed to object to the court's proferred reason for the consecutive sentence such that his challenge now may be deemed waived. Defendant is correct. (People v. Scott, supra, 9 Cal.4th at p. 353.) He argues, however, that by failing to object his counsel provided ineffective assistance. Not so.

In People v. Ledesma (1987) 43 Cal.3d 171, our Supreme Court explained the showing necessary to obtain a reversal of a conviction on ineffective assistance of counsel grounds: "`A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction . . . has two components.' [Citations.] `First, the defendant must show that counsel's performance was deficient.' [Citations.] Specifically, he must establish that `counsel's representation fell below an objective standard of reasonableness . . . under prevailing professional norms.' [Citations.] [¶] In determining whether counsel's performance was deficient, a court must in general exercise deferential scrutiny." (Id. at p. 216.) The court then explained the second component: "[A] criminal defendant must also establish prejudice before he can obtain relief on an ineffective-assistance claim." (Id. at p. 217.) "`The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.' [Citations.]" (Id. at pp. 217-218.)

Having reviewed the record, we conclude there was no ineffective assistance of counsel because, even if defendant could establish that his counsel was deficient for failing to object to the court's reason for the consecutive sentence on count three, he has not demonstrated that he was likely to obtain a better result had defense counsel so objected.

Rule 4.4245 sets forth criteria governing the imposition of concurrent and consecutive sentences. In addition to listing criteria relating to the crimes, the rule allows for consideration of any circumstances in aggravation or mitigation, except a fact used to impose the upper term or to otherwise enhance defendant's prison sentence or that is an element of the crime. Only one single aggravating factor is required to impose a consecutive sentence. (People v. Osband, supra, 13 Cal.4th at pp. 728-729; People v. Coulter (1989) 209 Cal.App.3d 506, 516.)

Here, there existed an additional circumstance in aggravation that was cited in the probation report and expressly accepted by the court as an aggravating factor, but not relied upon by the court in imposing the upper term on the manslaughter conviction and its associated enhancement: the particular vulnerability of Willis-Starbuck. (Rule 4.421(a)(3).) In People v. Black, supra, 41 Cal.4th at pp. 820-821, the court reiterated its prior conclusion that the imposition of consecutive sentences does not implicate a defendant's Sixth Amendment rights, a conclusion not undermined by the decision in Cunningham v. California, supra, 549 U.S. 270. Thus, the vulnerability of Willis-Starbuck did not require a jury determination, and the court would have been free to use this aggravating factor as justification for imposing a consecutive sentence on count three. And we conclude that the court here would have done so had defense counsel objected to the trial court's stated reason for the consecutive sentence on count three.

Alternatively, counsel does not render ineffective assistance by failing to make motions or objections that counsel reasonably determines would be futile. (People v. Anderson (2001) 25 Cal.4th 543, 587; People v. Price (1991) 1 Cal.4th 324, 386-387.) As noted above, given the trial court's clear belief that defendant was deserving of the lengthiest sentence possible, defense counsel could reasonably have concluded that it would have been futile to object to the imposition of a consecutive sentence on count three.

DISPOSITION

The judgment of conviction is affirmed.

We concur:

Haerle, Acting P.J.

Lambden, J.

FootNotes


1. Chewbacca is a fictional creature from the Star Wars movie series. (<http://starwars.wikia.com/wiki/Chewbacca> [as of July 24, 2009].)
2. All subsequent statutory references are to the Penal Code except where otherwise noted.
3. All rule references are to the California Rules of Court.
4. Although rules 4.421(b)(2) and 4.421(b)(3) list, respectively, "prior convictions . . . [that] are numerous or of increasing seriousness" and a prior "prison term" as aggravating factors, the factors listed in rule 4.421 are not exclusive, and the court may rely on other factors that are "reasonably related to the decision being made." (Rule 4.408(a).) California courts routinely uphold the use of a prior conviction as an aggravating factor. (See, e.g., People v. Black (2007) 41 Cal.4th 799, 819.)
5. The post-Cunningham changes to section 1170 eliminated the middle term presumption for an underlying offense, but section 1170.1, subdivision (d) retains that presumption for purposes of imposing sentence on enhancements.
6. Defendant acknowledges that his trial counsel failed to object to the court's citation to the great violence involved in the crime as a factor supporting the upper term, and an appeal challenging the court's reliance on that factor may have been waived. However, because we affirm the upper term sentence on the firearm enhancement without reliance on the great violence circumstance, defendant's failure to object to the court's consideration of that factor is of no consequence. We take no position on his contention that the two factors requiring a jury finding were unsupported by the verdict.
7. Heading I of defendant's opening brief states, "The trial court violated Hollis's Sixth and Fourteenth Amendment rights, impermissibly used dual factors in sentencing, and abused its discretion when it imposed the upper term of ten years for the section 12022.5 firearm enhancement." Nowhere in the body of his opening brief, however, does defendant present an abuse of discretion argument. Any such argument was therefore waived. (Tiernan v. Trustees of Cal. State Universities & Colleges (1982) 33 Cal.3d 211, 216, fn. 4; Lyons v. Chinese Hosp. Assn. (2006) 136 Cal.App.4th 1331, 1336, fn. 2; Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6; 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 701, pp. 769-770.)

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