P. v. Brown

Filed 6/26/08 P. v. Brown CA3

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

A jury convicted defendant Phillip L. Brown of two counts of forcible rape (Pen. Code, 261, subd. (a)(2) (counts one and two)), assault by means of force likely to produce great bodily injury (Pen. Code, 245, subd. (a)(1) (count three)), two counts of failing to register as a sex offender (Pen. Code,  290, subd. (g)(2) (counts four and five)), assault with the intent to commit rape (Pen. Code, 220 (count six)), and false imprisonment (Pen. Code, 236 (count seven)). In a bifurcated proceeding, the jury sustained allegations of aggravating factors, four prior prison terms, and a prior serious felony conviction. The trial court sentenced defendant to a total term of 55 years four months.^[1]

On appeal, defendant contends his upper term sentences in counts one, two, and six were based on factors found true by a jury when no authority for such a jury finding exists, and there is insufficient evidence to support one of the prior prison term enhancements. We modify the sentence to strike one of the prior prison term enhancements and otherwise affirm.

BACKGROUND

Defendant is the half-brother of E.D., as they have the same father. On March 28, 2006, the two were staying in a Sacramento house they were renovating together. That evening, some of defendants friends came over and they drank alcohol, smoked marijuana, and used methamphetamine.

After the others left, defendant said he wanted some sex from his sister, and she replied he was crazy. He hit her, and she suggested he go to a prostitute, causing defendant to hit her again. E.D. fell down and defendant told her to take off her clothes. As he kicked and choked her, defendant threatened to snap E.D.s neck if she did not comply.

Defendant raped E.D. for about 20 minutes and then ordered her to the shower, where he washed the blood off of his sister. Defendant kept her from dressing after the shower, pinned her down, and raped her again for about 15 to 20 minutes.

D.R. is defendants half-sister, as they share the same father. One evening in September 2004, defendant and D.R. were in a car parked in front of D.R.s mothers house, using cocaine and methamphetamine. Needing a warmer place to sleep, they went to the garage of a nearby house defendant was painting.

After they entered, defendant closed the garage door. Defendant told D.R. she looked good and asked to have sex with her. D.R. refused, which angered defendant. Defendant stuck something in the track of the garage door, went to the car, and tried to remove D.R.s clothes. He eventually took off her pants and underwear before she escaped from the car.

Defendant caught D.R., held her down, and tied her hands and feet with a cord severed from a vacuum cleaner. Defendant swung the cord over a ceiling railing and suspended his half-sister approximately six inches off the ground. He then poured paint over her and threatened to set her on fire. He cut her down about an hour later, placing her in the back seat and saying she would be killed or dumped by the river. D.R. managed to escape as defendant was cleaning the paint off of the garage floor.

Defendant first registered as a sex offender in April 1998, and subsequently registered 10 more times. His last registration date was June 15, 2004, in San Francisco. He had been living on and off in Sacramento since the assault on D.R. in September 2004.

Two 1988 sexual assaults against T.G. were admitted into evidence as prior misconduct evidence. T.G.s testimony showed defendant, whom she had dated, raped her twice in two months.

Defendant testified, asserting he had consensual sex with E.D. in exchange for drugs. He claimed to have had a fight over drugs with D.R. She poured paint on his car, causing defendant to push her down and pour paint over her.

I

The Supreme Court announced its decision in Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856] (Cunningham) on the day the trial was set to begin. In response, the People amended the information to include allegations of four aggravating factors pursuant to California Rules of Court, rule 4.421 (future references to rules are to the California Rules of Court),^[2]and counts one and two were separate offenses under Penal Code section 667.6, subdivision (d). Defendant raised numerous objections, including an alleged lack of authority for the bifurcated proceedings on the aggravating factors. The court overruled defendants objections and permitted the bifurcated trial.

After the jury returned its guilty verdicts, the trial on the aggravating factors commenced. The jury was instructed it could consider the evidence presented during the guilt phase to determine whether each alleged circumstance was true, and the People had the burden of proving the allegations beyond a reasonable doubt. Other instructions were given, including explanations of the necessary findings to sustain the aggravating factors in rule 4.421(a)(1) and (b)(1). Testimony was presented regarding defendants prior convictions and interpreting his record.

The jury deliberated and returned its findings. Regarding counts one, two, and three, a mistrial was declared on the rule 4.421(a)(1) aggravating factor, and the jury found true the aggravating factors that defendant was a danger to society (rule 4.421(b)(1)), his convictions were numerous and of increasing seriousness (rule 4.421(b)(2)), and he had served a prior prison term (rule 4.421(b)(3)). The jury sustained all four aggravating factors for counts six and seven, and found counts one and two occurred on separate occasions pursuant to Penal Code section 667.6, subdivision (d).

The court imposed upper terms on counts one, two, and six. Count six was selected as the principal term and the court imposed the upper term sentence based defendant being on probation at the time of the offense (rule 4.421(b)(4)). For count one, the upper term was based on defendant having engaged in violent conduct showing he is a danger to society and having served a prior prison term, while the aggravating factors in count two were defendants prior convictions and the a high degree of viciousness, cruelty or callousness of the offenses.

Relying on the jurys finding, the court also determined counts one and two were separate offenses for the purpose of Penal Code section 667.6, subdivision (d).

Defendant contends the upper term sentences are invalid because there was no authority for the jury trial on the aggravating factors. He argues factors used to increase a sentence to an upper term are considered elements of the crime under Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi), Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403], and Cunningham, supra, 549 U.S. 270. From this, defendant concludes the trial court conducted an unauthorized criminal trial, a structural error under the Sixth Amendment. We disagree.

A.

Apprendi held that, other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum must be tried to a jury and proved beyond a reasonable doubt. (Apprendi, supra, 530 U.S. at p. 490.) In Cunningham, the United States Supreme Court held Californias determinate sentencing law violates a defendants right to trial by jury safeguarded by the Sixth and Fourteenth Amendments. (Cunningham, supra, 549 U.S. at p. ___ [166 L.Ed.2d at p. 864].)

We reject defendants claim for two reasons. First, the Supreme Court did not require California to adopt a particular procedure to comply with its decision. (Cunningham, supra, 549 U.S. at p. ___ [166 L.Ed.2d at p. 876].) The court described how some states responded to Apprendi and Blakely by allowing their judges to exercise broad discretion within the statutory range, while others have done so by calling upon the jury -- either at trial or in a separate sentencing proceeding -- to find any fact necessary to the imposition of an elevated sentence. (Cunningham, supra, at p. ___ [166 L.Ed.2d at pp. 876-877], fn. omitted.) So long as the sentence itself complies with the rule of Apprendi, it does not matter for the purpose of Sixth Amendment review what particular procedure was utilized by the court to reach the sentence.

The other reason the claim cannot stand is defendant was eligible for his upper term sentences based on aggravating factors not subject to the Apprendi rule. In People v. Black (2007) 41 Cal.4th 799 (Black II), the California Supreme Court applied the Apprendi line of cases, as interpreted in Cunningham, to Californias determinate sentencing law. It concluded so long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury. (Black II, supra, at p. 813, original italics.)

The presence of a single aggravating circumstance found in accordance with the Apprendi rule renders defendant eligible for the upper term. (Black II, supra, 41 Cal.4th at p. 815.) Therefore, imposition of the upper term does not infringe upon the defendants constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendants record of prior convictions. (Id. at p. 816.)

A courts reliance on prior convictions renders the defendant eligible for an upper term sentence. (Black II, supra, 41 Cal.4th at p. 818.) The prior conviction exception to Apprendi is not to be read too narrowly. (Black II, supra, at p. 819.) Numerous cases have interpreted this exception to include not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions. (Ibid.) Whether defendants prior convictions were numerous or of increasing seriousness (rule 4.421(b)(2)) is one example of a factor that comes within the recidivism exception to Apprendi. (Black II, supra, 41 Cal.4th at pp. 819-820.)

The upper term sentences in counts one and two thus clearly comport with Cunningham. As noted above, defendants numerous convictions, invoked by the court as an aggravating factor in count two, is not subject to Apprendi. Likewise, the prior prison term used by the court in count one is not subject to Apprendi. (People v. Thomas (2001) 91 Cal.App.4th 212, 223; see United States v. Corchado (10th Cir. 2005) 427 F.3d 815, 820 [the rule does not apply to subsidiary findings that are related to a prior conviction, such as the defendants status on probation].)

Defendant argues the prior prison term aggravating factor is suspect because defendant was also subjected to sentence enhancements for having served prior prison terms, creating a potential dual use of facts in violation of rule 4.420(c). He is incorrect.

At the trial on the aggravating factors, the prosecution submitted defendant serving a prior prison term for a violation of Penal Code section 12021 on June 23, 1998, which the jury relied on in sustaining the prison term aggravating factor. This prison term was not used in the prior prison term enhancements. The sentencing courts statement of reasons is entitled to a presumption of correctness, and we presume the court properly relied on this prison term for the aggravating factor. (People v. Garcia (1995) 32 Cal.App.4th 1756, 1775.)

As defendants sentences in counts one and two were based on aggravating factors not subject to Apprendi, these factors cannot be considered elements of their underlying offenses. The propriety of the jury trial on these factors is thus irrelevant to the legality of defendants sentence under the federal Constitution.

B.

The upper term sentence for count six was based on defendant being on probation at the time of the offense, a factor which also comes within the recidivism exception to Apprendi, as interpreted in Black II. Defendant was not entitled to a jury trial on this factor and it was never submitted to the jury. Therefore, the authority for the trial on the aggravators is equally irrelevant to the courts reliance on this particular factor.

However, there is another issue with this sentence. Count six involved defendants assaults on D.R., which took place in September 2004. As the People concede, there is no evidence defendant was on probation or parole at the time of these attacks on D.R. Assuming that imposing an upper term sentence on this basis violated Apprendi, we find the error harmless.

In People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval), a companion case to Black II, the California Supreme Court stated the test for harmless error (Washington v. Recuenco (2006) 548 U.S. 212 [165 L.Ed.2d 466]) was whether the reviewing court could conclude, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury . . . . (Sandoval, supra, at p. 839.)

In People v. Osband (1996) 13 Cal.4th 622 (Osband), the trial court imposed a full consecutive sentence for the defendants rape conviction. (Id. at p. 728.) The one factor used to impose the consecutive term was also one of the three factors used to justify imposition of the upper term for the same offense, and thus constituting an improper dual use of a sentencing factor. (Ibid.)

The California Supreme Court found the error harmless. In this case, the court could have selected disparate facts from among those it recited to justify the imposition of both a consecutive sentence and the upper term, and on this record we discern no reasonable probability that it would not have done so. Resentencing is not required. (Osband, supra, 13 Cal.4th at p. 729.)

Although Osband applied a lower standard than the harmless beyond-a-reasonable-doubt standard for Apprendi error, we see no reason to reach a different result. The trial court clearly expressed its intent to impose an upper term in count six, and had relied on two valid aggravating factors in imposing upper term sentences in counts one and two. We are convinced beyond a reasonable doubt the court would have relied on one of these valid factors to impose the upper term in count six had it known defendant was not on probation at the time of the offense. Accordingly, we conclude any error in defendants upper term sentence in count six was harmless beyond a reasonable doubt.

C.

We also find any error under California law regarding the authority for the trial is harmless. Under the determinate sentencing law, the court must exercise its own discretion in arriving at a sentence and state the reasons for the sentence it chooses. (Pen. Code, 1170, subd. (c).) The validity of the jury trial on the aggravating factors is relevant to defendants sentence as a matter of state law only to the extent it conflicted with the courts sentencing functions.

The court stated the reasons for the upper term sentences and exercised its own discretion in choosing the particular factors to apply. In count one, the court invoked a factor which the jury hung on, rule 4.421(a)(1), while ignoring another factor which the jury sustained, rule 4.421(b)(1). Similarly, in count six, the factor selected by the court for imposing the upper term, defendants probation status, was never submitted to the jury. Since the court exercised its own discretion rather in selecting the aggravating factors, defendant was not prejudiced by the jury trial on the aggravating factors in the information.

Defendants sentences did not involve any reversible error under Apprendi or state law, so it is unnecessary to determine whether the trial on the aggravating factors was authorized under California law. We therefore express no opinion on the validity of this procedure, which is now unnecessary in light of the legislative and judicial responses to Cunningham. (See Sandoval, supra, 41 Cal.4th at pp. 846-848.)

II

Defendant contends and the People concede one of the prior prison term enhancements must be stricken, as the three enhancements involve only two distinct prison terms. We accept the concession.

The jury sustained four prior prison term allegations, finding defendant served prior prison terms for two 1988 convictions and single convictions in 1993 and 1986. The court imposed three one-year enhancements based on these findings.

Defendant only served a single continuous period of confinement for the three convictions in 1988 and 1986. Under Penal Code section 667.5, subdivision (b), a one year enhancement is imposed for each prior separate prison term . . . . A prior prison term means a continuous completed period of prison incarceration imposed for the particular offense alone or in combination with concurrent or consecutive sentences for other crimes . . . . (Pen. Code, 667.5, subd. (g).) One period of confinement for multiple convictions is a single prison term for the purpose of the enhancement. (People v. Jones (1998) 63 Cal.App.4th 744, 746-750 [concurrent sentences for two felonies, one of which was a violation of probation case]; People v. Ruiz (1996) 44 Cal.App.4th 1653, 1669 [one period of prison confinement for multiple convictions].)

Since defendant served only two separate prison terms for the three enhancements sustained by the jury, we modify the sentence to strike one of the enhancements.

DISPOSITION

The judgment is modified by striking one of the three prior prison term enhancements, reducing defendants prison sentence from 55 years four months to 54 years four months. The trial court is directed to prepare an amended abstract of judgment accordingly and to forward a certified copy to the Department of

Corrections and Rehabilitation. As modified, the judgment is affirmed.

NICHOLSON , J.

We concur:

DAVIS, Acting P.J.

HULL, J.

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^[1] Part of the total sentence was an eight-month consecutive term imposed in case No. 05F08179.

^[2] The amended information alleged the offenses involved great violence or bodily injury or a high degree of viciousness, cruelty or callousness (see rule 4.421(a)(1)), involved violent conduct showing defendant is a danger to society (rule 4.421(b)(1)), defendants prior convictions were numerous and of increasing seriousness (rule 4.421(b)(2)), and defendant had served a prior prison term (rule 4.421(b)(3).