P. v. Johnson

Filed 10/16/07 P. v. Johnson CA2/7

Opinion following remand by Supreme Court

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL on remand from the Supreme Court. Affirmed.

Edward H. Schulman, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Theresa A. Patterson, and Chung L. Mar, Deputy Attorneys General, for Plaintiff and Respondent.

_____________________

A jury convicted Herbert Johnson of eight counts of rape and one count of sexual penetration by a foreign object and found true the special allegation he had committed the offenses during the course of a burglary. The trial court sentenced Johnson to an aggregate state prison term of 89 years to life. On appeal Johnson contends the evidence is insufficient to support his convictions on three of the rape counts. Johnson also contends the trial courts imposition of a sentence based in part on its own factual findings concerning aggravating circumstances violated his right to a jury trial guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution. We affirm.[1]

FACTUAL AND PROCEDURAL BACKGROUND

An amended information filed February 2, 2006 charged Johnson with 10 counts of rape by force or fear (Pen. Code, 261, subd. (a)(2))[2]and one count of sexual penetration by a foreign object ( 289, subd. (a)(1)). It also alleged as to each count that Johnson had committed the offense during the course of a burglary ( 667.61, subd. (d)(4) (the One Strike law)). Two of the rape counts (counts 9 and 10) were dismissed at the close of the trial for insufficient evidence.

According to the evidence at trial, on May 25, 1998, as 19-year-old Lillian E. prepared to go to sleep for the night, she was awakened by a male intruder who put his hand over her face, told her not to say anything, inserted his fingers in her vagina, ordered her to comply with his commands or he would kill her sister and repeatedly raped her in various positions over the course of an hour. Although Lillian E. was unable to identify her attacker and the case went unsolved for years, DNA samples obtained from Johnson in connection with another rape case later confirmed Johnson was the rapist.[3]

Following his conviction by a jury on all eight counts of rape and one count of sexual penetration with a foreign object and the jurys finding the offenses were committed during the course of a burglary, the trial court sentenced Johnson to a term of 25 years to life with respect to the first count of rape under the One Strike law and to full, separate and consecutive eight-year terms (the upper term) with respect to each of the remaining eight counts. ( 667.6, subd. (c) [authorizing imposition of full, separate and consecutive terms for each violation of offense specified in subd. (e), including rape and unlawful sexual penetration by foreign object]; see 264, subd. (a) [rape, as defined in section 261, punishable by imprisonment in state prison for three, six or eight years], 289 [offense of unlawful sexual penetration by foreign object punishable by imprisonment in state prison for three, six or eight years].)

DISCUSSION

1. Johnsons Rape Convictions Are Supported by Substantial Evidence

a. Standard of review

In reviewing a challenge to the sufficiency of the evidence, we consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt. [Citations.] (People v. Mincey (1992) 2 Cal.4th 408, 432; People v. Staten (2000) 24 Cal.4th 434, 460; People v. Hayes (1990) 52 Cal.3d 577, 631.) Our sole function is to determine if any rational trier of fact could have found the essential elements of the crime or the special allegation present beyond a reasonable doubt. (People v. Bolin (1998) 18 Cal.4th 297, 331; People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) The Supreme Court has held, Reversal on this ground is unwarranted unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support [the jurys finding]. (Bolin, at p. 331, quoting People v. Redmond (1969) 71 Cal.2d 745, 755.)

Substantial evidence in this context means evidence which is reasonable, credible, and of solid value ‑‑ such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578; accord, People v. Hill (1998) 17 Cal.4th 800, 848-849 [When the sufficiency of the evidence is challenged on appeal, the court must review the whole record in the light most favorable to the judgment to determine whether it contains substantial evidence ‑‑ i.e., evidence that is credible and of solid value ‑‑ from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. [Citations.]].) Although the jury is required to acquit a criminal defendant if it finds the evidence susceptible of two reasonable interpretations, one of which favors guilt and the other innocence, it is the jury, not the appellate court, which must be convinced of his guilt beyond a reasonable doubt. (People v. Millwee (1998) 18 Cal.4th 96, 132.)

b. Substantial evidence supports Johnsons conviction for each of the eight counts of rape under section 261

Rape is defined in section 261, subdivision (a)(2), as an act of sexual intercourse accomplished with a person not the spouse of the perpetrator against a persons will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another. The essential guilt of rape consists in the outrage to the person and feelings of the victim of the rape. [Thus,] [a]ny sexual penetration, however slight, is sufficient to complete the crime. ( 263.) Although penetration is a necessary element of rape, vaginal penetration is not required. Penetration, however slight, of the victims external genital organs is sufficient to constitute sexual penetration and to complete the crime of rape even if the rapist does not succeed in penetrating into the vagina. (People v. Quintana (2001) 89 Cal.App.4th 1362, 1366, quoting People v. Karsai (1982) 131 Cal.App.3d 224, 231-232 [penetration of external genital organs such as labia majora and labia minora sufficient] disapproved on other grounds in People v. Jones (1988) 46 Cal.3d 585, 600, fn. 8.)

Citing Lillian E.s testimony that he inserted his penis into her vagina five times while she was on her back, Johnson contends the evidence is sufficient to support only five of the eight counts of conviction for rape. However, Johnson ignores Lillian E.s additional testimony that he penetrated her external genitalia, poking her in the vagina four to five times with his penis while she was on her hands and knees but was unsuccessful in penetrating her vagina in that position and later forced Lillian E. to assume a different position. At another point in her direct examination, when asked to summarize the number of times Johnson succeeded in penetrating her vagina with his penis during her ordeal, Lillian E. testified five times; when asked the number of times Johnson attempted to penetrate her vagina but was unsuccessful in that effort, she testified three times. A reasonable trier of fact could infer from Lillians testimony that, in poking her vagina with his penis in an effort to effect vaginal penetration, Johnson succeeded in penetrating her external genitalia (albeit not her vagina) at least three times, if not four or five. Accordingly, substantial evidence amply supports the jurys verdict on all eight counts of rape.

2. The Trial Courts Imposition of Upper Term Sentences Did Not Violate Johnsons Sixth Amendment Right to a Jury Trial

a. The sentencing determination

Prior to the sentencing hearing the People submitted a sentencing memorandum and a supplemental sentencing memorandum, which, considered together, argued Johnson should be sentenced to an indeterminate term of 25 years to life on count 1 and full, consecutive upper terms of eight years each on counts 2 through 8 and 11. In support of its position Johnson should receive the maximum possible sentence of 64 years plus 25 years to life, the People argued the crime involved great violence, threat of great bodily harm and displayed a high degree of cruelty, viciousness and callousness (Cal. Rules of Court, rule 4.421(a)(1)); the victim was particularly vulnerable (Cal. Rules of Court, rule 4.421(a)(3)); the manner in which the crime was carried out indicates planning (Cal. Rules of Court, rule 4.421(a)(8)); Johnson has engaged in violent conduct that indicates a serious danger to society (Cal. Rules of Court, rule 4.421(b)(1)); and Johnsons prior convictions as an adult are numerous and of increasing seriousness (Cal. Rules of Court, rule 4.421(b)(2)). With respect to Johnsons prior criminal history, the sentencing memoranda explained Johnson had been convicted of third degree assault in New York in 1976 and sentenced to 60 days in jail and two years of probation.[4] In 1982 he entered a plea in New Jersey to breaking and entering with intent to commit rape and was sentenced to a term of five to seven years in state prison. After he moved to California, Johnson was convicted of misdemeanor assault ( 240) in 1998 and resisting or obstructing a peace officer ( 148, subd. (a)(1)) in 1999. In 1999 Johnson was also convicted, following his guilty plea, of two counts of rape and sentenced to an aggregate state prison term of eight years.[5]

In a probation and sentencing report ordered by the court, the probation officer also discussed Johnsons prior criminal history, including what was described as a 1980 New Jersey conviction for sexual assault and burglary for which Johnson was sentenced to 15 years in state prison. The report concluded, The defendant is a sexual predator, who also committed a forcible rape subsequent to his charge in the present matter. The defendant is not eligible for probation, and is considered a major threat to the community.

At the sentencing hearing the prosecutor referred to the two sentencing memoranda he had submitted and argued Johnson is a sexual predator. He should be punished to the maximum allowable under the law. Before turning to defense counsel, the court stated, I intend to follow the Peoples recommendation. It is the courts indicated plan. Defense counsel declined the invitation to respond.

The court then sentenced Johnson to 25 years to life on count 1. As to counts 2, 3, 4, 5, 6, 7, 8 and 11, the court is selecting the high term of eight years because the crime involved great violence, great bodily harm. There was also a threat of great bodily harm to the victims sister. And it is also a high degree of cruelty and viciousness. And also the victim was particularly vulnerable in that the victim was 19 years old. Pursuant to [rule] 4.408 [authorizing the court to consider additional criteria reasonably related to the sentencing decision being made], the court finds that the victim was a virgin prior to the point that this defendant raped her. I find that as an aggravating factor.

It will be consecutive terms pursuant to [section] 667.6[, subdivision ](c) and for the additional reasons that the manner in which the crime was carried out indicates planning, sophistication or professionalism. And the defendant has engaged in violent conduct, which indicates a serious danger to society. And the defendant has prior convictions, which are numerous. The defendant served prior prison terms. So that means those additional counts are eight years each, fully consecutive, for a total of 64 years on those counts plus the 25 to life on count 1.

b. Cunningham, Black II and the use of a defendants criminal history as a circumstance in aggravation

Asserting that the trial court selected the upper term of eight years for counts 2 through 8 and count 11 based solely on the circumstances of his crimes (that is, the crimes involved great violence and great bodily harm, as well as a high degree of cruelty and viciousness; there was a threat of great bodily harm to the victims sister; and the 19-year‑old victim was particularly vulnerable and had been a virgin prior to being brutalized by Johnson), Johnson argues imposition of those upper terms based on factual determinations made by the court, not the jury, violated his Sixth and Fourteenth Amendment right to a jury trial under Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham) and People v. Black (2007) 41 Cal.4th 799 (Black II).[6]

In Cunningham the United States Supreme Court reaffirmed Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403] (Blakely) and Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2438, 147 L.Ed.2d 435], overruled People v. Black (2005) 35 Cal.4th 1238 (Black I) and held Californias determinate sentencing law violates a defendants right to a jury trial guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution to the extent it authorizes the trial judge to find facts (other than a prior conviction) that expose a defendant to an upper term sentence by a preponderance of the evidence. This Court has repeatedly held that, under the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence. (Cunningham, at pp. 863-864.)

Following its decision in Cunningham, the United States Supreme Court vacated the judgment in Black I, supra, 35 Cal.4th 1238[7]and remanded the case to the California Supreme Court for further consideration in light of Cunningham. In Black II, supra,41 Cal.4th 799 the Court held the existence of at least one aggravating circumstance established by means that satisfy the governing Sixth Amendment authorities renders a defendant eligible for the upper term sentence under the determinate sentencing law, so that any additional factfinding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendants right to jury trial. (Id. at p. 812.) The courts factual findings regarding the existence of additional aggravating circumstances may increase the likelihood that it actually will impose the upper term sentence, but these findings do not themselves further raise the authorized sentence beyond the upper term. No matter how many additional aggravating factors are found by the trial court, the upper term remains the maximum that may be imposed. Accordingly, judicial factfinding on those additional aggravating circumstances is not unconstitutional. (Id. at p. 815.)

In addition, relying on United States Supreme Court decisions holding the trial court may increase the penalty for a crime based upon the defendants prior convictions without submitting that question to a jury (see Cunningham, supra, 127 S.Ct. at p. 868; Blakely, supra, 542 U.S. at p. 301; Almendarez-Torres v. United States (1998) 523 U.S. 224, 243 [118 S.Ct. 1219, 140 L.Ed.2d 350] [recidivism . . . is a traditional, if not the most traditional, basis for a sentencing courts increasing an offenders sentence]), the Black II Court held that aggravating factors relating to a defendants prior convictions are beyond the reach of Cunningham. As we recognized in [People v.] McGee [(2006) 38 Cal.4th 682], numerous decisions from other jurisdictions have interpreted the Almendarez-Torres 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. . . . [] The determinations whether a defendant has suffered prior convictions, and whether those convictions are numerous or of increasing seriousness [citation], require consideration of only the number, dates, and offenses of the prior convictions alleged. The relative seriousness of these alleged convictions may be determined simply by reference to the range of punishment provided by statute for each offense. This type of determination is quite different from the resolution of issues submitted to a jury, and is one more typically and appropriately undertaken by a court. (Black II, supra, 41 Cal.4th at pp. 819-820.)

c. The trial court properly relied on Johnsons criminal history in electing to impose upper term sentences on each of the determinate counts

In our original opinion in this case we accepted Johnsons argument concerning the basis for the trial courts sentencing decision and focused ‑‑ incorrectly, we now conclude ‑‑ on the courts discussion of those circumstances in aggravation relating to the nature of Johnsons crimes and the vulnerability of his victim, overlooking the courts reference to the prosecutors sentencing memoranda, which also identified Johnsons criminal history as a circumstance in aggravation.[8] As a result, we held imposition of the upper term on each of the eight determinate counts (counts 2 through 8 and 11), based on the courts own factual findings of aggravating circumstances, violated Johnsons constitutional right to a jury trial under Cunningham. We then concluded imposition of the upper term sentences was not harmless error, explaining, Although we have little doubt a jury could reasonably find this brutal crime involved a high degree of cruelty and the victim was particularly vulnerable . . . , from this record we simply cannot conclude the jury would have found, beyond a reasonable doubt, the existence of the aggravating factors identified by the trial court. Reconsideration of that conclusion in light of Black II, supra, 41 Cal.4th 799 and Sandoval, supra, 41 Cal.4th 825 would not lead to a different result.[9](See Sandoval, at p. 840 [to the extent a potential aggravating circumstance at issue in a particular case rests on a somewhat vague or subjective standard, it may be difficult for a reviewing court to conclude with confidence that, had the issue been submitted to the jury, the jury would have assessed the facts in the same manner as did the trial court. The sentencing rules that set forth aggravating circumstances were not drafted with a jury in mind].)

Upon reexamination of the record of the sentencing proceedings following the Supreme Courts transfer of the matter to us for reconsideration in light of Black II and Sandoval, however, we now realize, as was the case in Black II, the prosecutors sentencing memoranda, as well as the probation report, reflected Johnsons prior criminal record ‑‑ at least three misdemeanor convictions and three felony convictions, which included two state prison terms. Again, as in Black II, the trial court in this case made explicit reference to that sentencing report in deciding to impose upper terms on the eight determinate counts. (See Black II, supra, 41 Cal.4th at p. 818 [The trial court stated it considered not only the circumstances of the crime but also the other aggravating circumstances set out in the district attorneys sentencing brief. In that brief, the prosecutor listed the aggravating circumstance described in California Rules of Court, rule 4.421(b)(2) as one of the aggravating circumstances in this case].) Moreover, read in that context it is apparent the trial courts reference to the fact the defendant has prior convictions, which are numerous [and has] served prior prison terms was intended to constitute part of the courts explanation not only for the imposition of consecutive sentences but also for the selection of the upper terms: So that means those additional counts are eight years each, fully consecutive, for a total of 64 years on those counts plus the 25 to life on count 1.

Johnsons convictions are sufficiently numerous to satisfy California Rules of Court, rule 4.421(b)(2). (See Black II, supra, 41 Cal.4th at p. 818 [three misdemeanor and two felonies are numerous and of increasing seriousness]; People v. Searle (1989) 213 Cal.App.3d 1091, 1098 [three prior convictions are numerous].) In addition, it is undisputed Johnson served a prior prison term in New Jersey, as well as the prison term being served for the 1999 rape convictions. Accordingly, Johnsons criminal history, properly identified by the trial court as an aggravating factor, rendered him eligible for the upper term sentences imposed. Johnsons federal constitutional right to a jury trial was not violated by the trial courts sentencing decision.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

PERLUSS, P. J.

We concur:

JOHNSON, J.

WOODS, J.

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Analysis and review provided by Chula Vista Property line Lawyers.

[1]Our original opinion in this case, reversing the judgment in part and remanding the matter for resentencing, was filed on April 2, 2007, subsequent to the decision by the United States Supreme Court in Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham) but before the California Supreme Courts decisions in People v. Black (2007) 41 Cal.4th 799 (Black II ) and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval). After granting and holding the Peoples petition for review, on September 12, 2007 the California Supreme Court transferred the matter to us with directions to vacate our original decision and reconsider the cause in light of Black II and Sandoval. The parties submitted supplemental briefing pursuant to California Rules of Court, rule 8.200(b); and we thereafter requested further supplemental briefing on the question whether the trial court properly relied in part on Johnsons criminal history in selecting the upper term of eight years rather than the middle term of six years in imposing eight full, separate and consecutive terms on counts 2 through 8 and count 11. Except for our discussion of the constitutionality of Johnsons sentence, the opinion we now file is substantially the same as our opinion of April 2, 2007.

[2] Statutory references are to the Penal Code.

[3] Johnson pleaded guilty to two counts of forcible rape in November 1999, Los Angeles County Superior Court case no. NA042450, and was sentenced to an aggregate state prison term of eight years. While serving his sentence, a saliva specimen was obtained from Johnson. Analysis of that specimen led to Johnson being charged with the offenses at issue in the case at bar.

[4] Johnson did not dispute the factual accuracy of the Peoples summary of his prior criminal history.

[5] Although Johnsons 1999 convictions on two counts of rape were originally charged as prior serious or violent felonies within the meaning of the Three Strikes law ( 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), Johnson apparently successfully moved to strike those charges on the ground the 1999 rape convictions were for offenses that had occurred after the May 1998 rape of Lillian E. and therefore were not properly considered prior convictions for purposes of enhancing Johnsons sentence.

[6] Because Johnson was sentenced in August 2006, subsequent to the California Supreme Courts decision in People v. Black (2005) 35 Cal.4th 1238 (Black I), but prior to the United States Supreme Courts decision in Cunningham, supra, 549 U.S. ___, his failure to object to the sentencing proceedings does not forfeit his constitutional claim. (Sandoval, supra, 41 Cal.4th at p. 837, fn. 4 [An objection in the trial court is not required if it would have been futile. . . . Had the defendant requested a jury trial on aggravating circumstances, that request clearly would have been futile, because the trial court would have been required to follow our decision in Black I and deny the request].)

[7] In Black I, supra, 35 Cal.4th 1238 the California Supreme Court had held, notwithstanding Blakely, the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence or consecutive terms under California law does not implicate a defendants Sixth Amendment right to a jury trial. (Black I, at p. 1244.) The Court explained, The jurys verdict of guilty on an offense authorizes the judge to sentence a defendant to any of the three terms specified by statute as the potential punishments for that offense, as long as the judge exercises his or her discretion in a reasonable manner that is consistent with the requirements and guidelines contained in statutes and court rules. (Id. at pp. 1257-1258.)

[8] Prior to our request for supplemental briefing directed to the question whether the trial court had relied in part on Johnsons criminal history in selecting upper term sentences, the Attorney General had not argued the applicability of the Almendarez-Torres-recidivism exception to the Sixth Amendment jury trial requirement recognized in Cunningham and Blakely.

[9] In Sandoval, supra, 41 Cal.4th 825 the Court held, if no aggravating factors have been found consistent with Sixth Amendment principles (that is, found to be true by a jury beyond a reasonable doubt, admitted by the defendant or included within the recidivism exception recognized by the United States Supreme Court in Cunningham and Blakely), the denial of the right to a jury trial on aggravating circumstances is reviewed under the harmless error standard set forth in Chapman v. California (1967) 386 U.S. 18 [87 S.Ct. 824, 17 L.Ed.2d 705] (Chapman) . . . . (Sandoval, supra, 41 Cal.4th at p. 838.) [I]f a reviewing court concludes, 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, the Sixth Amendment error properly may be found harmless. (Id. at p. 839.)