P. v. Quintanilla

Filed 7/31/07 P. v. Quintanilla CA1/3

Opinion following rehearing

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

Respondents petition for rehearing is granted and the opinion filed on July 18, 2007, is vacated and replaced by this opinion. This case was remanded to us by the United States Supreme Court after its decision in Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham). In light of our Supreme Courts recent decision in People v. Black (July 19, 2007, S126182) ___ Cal.4th ___ [2007 WL 2050875, 2007 Cal. Lexis 7604] (Black II), we now affirm the judgment.

Procedural Background

An amended information filed on March 27, 2003, charged appellant with various offenses arising from his physical and sexual abuse of his girlfriend, Isabel J. On April 4, 2003, the jury returned guilty verdicts as follows: Count 4false imprisonment (Penal Code section 236[1]); count 5 cohabitant injury ( 273.5, subd. (a)); count 6sexual penetration with a foreign object (289, subd. (a)(1); count 8prevent or dissuade witness testimony ( 136.1, subd. (a)); count 10assault likely to produce great bodily injury ( 245, subd. (a)(1); count 11criminal threat ( 422); and count 13forcible rape ( 261, subd. (a)(1)).

In September 2005, we issued an opinion reversing appellants conviction for intimidating a witness and affirming the judgment in all other respects. (See People v. Quintanilla (2005) 132 Cal.App.4th 572.) In the unpublished part of our opinion, and relying on People v. Black (Black I),[2] we rejected appellants contention the trial court violated Blakely v. Washington[3] when it imposed upper terms and consecutive sentences. The Supreme Court of California denied appellants petition for review on November 30, 2005.

On February 20, 2007, the United States Supreme Court issued an order in this case granting certiorari, vacating the judgment, and remanding to this court for further consideration in light of Cunningham, supra, 127 S.Ct. 856. Pursuant to its mandate, we have recalled the remittitur. We have reexamined our initial opinion in this case, which we incorporate by reference, and have received supplemental briefing from the parties.

The Trial Courts Sentencing Decision

The trial court sentenced appellant as follows: count 5 (cohabitant injury) upper term of four years; count 6 (sexual penetration)middle term of six years; count 8 (dissuading witness) one-third the middle term of eight months; count 11 (criminal threat) one-third the middle term of eight months; and count 13 (rape)upper term of eight years. The court imposed all sentences consecutive to count 5 (cohabitant injury), and suspended sentence on counts 4 and 10 pursuant to California Rules of Court, rule 424. The total sentence imposed was a term of nineteen years and four months.

Regarding the basis for the imposition of consecutive sentences, the court found the objective of the criminal threats was predominantly independent of the beating of the victim, pursuant to Rule 4.425(a)(1). The court also found the crimes involved separate various acts of violence, pursuant to Rule 4.425(a)(2).

In imposing the upper terms on counts 5 (cohabitant injury) and 13 (rape), the court found the following factors in aggravation: (1) the crime involved great violence disclosing a high degree of cruelty, viciousness and callousness; (2) the victim was particularly vulnerable; (3) appellant took advantage of a position of trust or confidence to commit the offense; (4) appellant had three previous felony convictions; (5) appellant was on probation when the crime was committed; (6) appellants prior performance on probation was unsatisfactory.

ANALYSIS

A. Imposition of Upper Terms

In Cunningham, the high court concluded Californias determinate sentencing law (DSL) violates the Sixth Amendment because it allocates to judges sole authority to find facts permitting the imposition of an upper term sentence[.] (Cunningham, supra, 127 S.Ct. at p. 871.) Relying on Cunningham, appellant contends the trial courts imposition of upper terms in the present case violated his Sixth-Amendment right to a jury trial. This contention fails under Black II.

In Black II, our Supreme Court addressed the same issue. (See Black II, supra, at p. *1 [considering whether imposition of the upper term violated appellants right to a jury trial].) The Court noted that in Blakely, supra, the high court explicitly recognized the legitimate role of judicial factfinding in indeterminate sentencing, in which the judge may implicitly rule on those facts he deems important to the exercise of his sentencing discretion. (Blakely, supra, 542 U.S. at p. 309.) (Black II, supra, at p. *7.) Accordingly, the Court concluded that 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. (Ibid.) The Court added that [t]he facts upon which the trial court relies in exercising discretion to select among the terms available for a particular offense do not pertain to whether the defendant has a legal right to a lesser sentenceand that makes all the difference insofar as judicial impingement upon the traditional role of the jury is concerned. (Citation.) (Ibid.) Noting the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term under Californias DSL, the Court therefore concluded that if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not legally entitled to the middle term sentence, and the upper term sentence is the statutory maximum for Sixth Amendment purposes. (Ibid.)

Applying these conclusions to the facts before it, the Black II Court noted the high court consistently has stated that the right to a jury trial does not apply to the fact of a prior conviction[,] [and that] recidivism . . . is a traditional, if not the most traditional, basis for a sentencing courts increasing an offender's sentence. (Black II, supra, at p. *10 [citations omitted].) On that basis, the Court reasoned defendants criminal history alone rendered him eligible for the upper term sentence. (Ibid.) In sum, the Court concluded defendants criminal history and the jurys finding that the offense involved the use of force or violence establish two aggravating circumstances that independently satisfy Sixth Amendment requirements and render him eligible for the upper term. Therefore, he was not legally entitled to the middle term, and his Sixth Amendment right to jury trial was not violated by imposition of the upper term sentence for the offense of continuous sexual abuse of a child. (Black II, supra, at p. *12.) Similarly here, the fact appellant had three previous felony convictions is in itself a sufficient basis to render him eligible for the upper term. Hence, appellant suffered no Sixth Amendment violation by the trial courts exercise of its discretion in selecting the upper terms in his case. (Ibid.)

B. Imposition of Consecutive Terms

Appellant also claims he was wrongly denied a jury trial on factors used to impose consecutive terms. The California Supreme Court rejected such a claim in Black I, supra, 35 Cal.4th at page 1262: [A] jury trial is not required on the aggravating factors that justify imposition of consecutive sentences. With respect to the same issue, the Black II Court stated: The high courts decision in Cunningham does not call into question the conclusion we previously reached regarding consecutive sentences. The determination whether two or more sentences should be served in this manner is a sentencing decision [ ] made by the judge after the jury has made the factual findings necessary to subject the defendant to the statutory maximum sentence on each offense and does not implicate[ ] the defendants right to a jury trial on facts that are the functional equivalent of elements of an offense. (Black I, supra, 35 Cal.4th at p. 1264.) Accordingly, we again conclude that defendant's constitutional right to jury trial was not violated by the trial court's imposition of consecutive sentences on all three counts. (Black II, supra, at p. *13.) Black II is binding on this court, (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), and dispositive of this aspect of appellants challenge to his sentence.

DISPOSITION

The judgment is affirmed.

_________________________

Parrilli, Acting P. J.

We concur:

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Pollak, J.

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Siggins, J.

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[1] Further statutory references are to the Penal Code unless otherwise noted.

[2]People v. Black (2005) 35 Cal.4th 1238, certiorari granted and judgment vacated by Black v. California (2007) 127 S.Ct. 1210.)

[3]Blakely v. Washington (2004) 542 U.S. 296 (Blakely), in which the high court ruled the sentence a violated petitioners Sixth Amendment right to a jury trial because he was sentenced to more than three years above the 53-month statutory maximum of the standard range because he had acted with deliberate cruelty [and] [t]he facts supporting that finding were neither admitted by petitioner nor found by a jury. (Blakely, supra, 542 U.S. at p. 303.)