Edwards

Pursuant to a plea agreement with the People, defendant pled guilty to a charge of assault with a firearm (Pen. Code, § 245, subd. (a)(2)) and admitted the truth of the allegation of firearm use. (§ 12022.5, subd. (a), § 1192.7, subd. (c)(8).) The court sentenced defendant to a four-year aggravated term for the assault with a firearm, and a consecutive five-year enhancement for the personal use of a firearm. Defendant contends that the trial court erred by considering improper factors in aggravation in selecting the upper term on the firearm use enhancement. Although we agree that the trial court did consider improper factors in sentencing defendant on the enhancement, we affirm because we conclude that it is not reasonably probable that a result more favorable to the defendant would have been reached in the absence of this error.

I

Factual and Procedural Background

On January 22, 1992, defendant shot 14-year-old Miesha Lindsey, his girlfriend and the mother of his 10-month-old child. Lindsey was admitted to the hospital in critical condition, the bullet having entered her right breast and continued in a downward trajectory through the right lung, nicking the liver and…