PEOPLE v. DIAZ

Filed 4/25/07

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

Story Continue from Part I

In order for the trial court to find each of the four aggravating factors it believed to be present, the court necessarily engaged in additional factfinding beyond the facts found true by the jury. This is exactly the factfinding that failed constitutional scrutiny in Cunningham: If the jurys verdict alone does not authorize the sentence, if, instead, the judge must find an additional fact to impose the longer term, the Sixth Amendment requirement is not satisfied. (Cunningham, supra, 127 S.Ct. at p. 869.) In the absence of pertinent admissions by Diaz, the four aggravating factors on which the trial court relied to impose the upper term sentences on counts 10, 13, and 14 could only have been relied on had they been submitted to a jury for determination under the beyond a reasonable doubt standard of proof. As these factors were neither admitted nor found true by a jury beyond a reasonable doubt, they cannot, consistent with the Sixth Amendment, increase the statutory maximum punishment available for Diazs crimes beyond the presumptive midterm sentence.

2. Particularly Vulnerable Victim Finding

In support of the high term sentences, the Attorney General argues that the finding that the victim was particularly vulnerable does not violate Blakely, supra, 542 U.S. 296, because the jury here necessarily found, in convicting appellant of the charged offenses, that appellant engaged in sexual acts with a woman incapable of consent. The trial courts aggravating circumstance finding that the victim was particularly vulnerable merely reflected this jury determination. If, as the Attorney General posits, vulnerability and incapacity to resist the sexual offenses are equivalent, then the victims vulnerability is not a proper aggravating factor in light of the sexual offenses of which Diaz was convicted because, by definition, any victim of these offenses would be a particularly vulnerable victim, as he or she was prevented from resisting by an intoxicant, anesthetic substance, or controlled substance. ( 289, subd. (e); 288a, subd. (i); 261, subd. (a)(3).) Using elements as aggravators collapses the sentencing scheme by making every occurrence of a crime aggravated, undermining the purpose of an aggravating factor: A fact is aggravating if it makes defendants conduct distinctively worse than it would otherwise have been. (People v. Zamarron (1994) 30 Cal.App.4th 865, 872.)

As a general rule, a fact that is an element of a crime may not be used to impose the upper term. (Cal. Rules of Court, rule 4.420(d).) Moreover, it has been held an analogous contexts that it is improper to base a finding of particular vulnerability on a fact that is an element of the crime. In People v. Flores (1981) 115 Cal.App.3d 924, at page 927, the court held that a victims minority is not a proper basis for a particular vulnerability finding when the victims minority is an element of the offense. The Court of Appeal wrote that by defining certain sexual acts on minor victims as distinct crimes with heightened punishments, it seems clear that the Legislature already has determined that all persons of specified ages are particularly vulnerable by reason of their age alone . . . . (Ibid.) Here, it is clear that the Legislature considered individuals who were rendered incapable of resisting sexual penetration with a foreign object, oral copulation, and rape due to the influence of a controlled substance, intoxicant, or anesthetic substance to be particularly vulnerable, and accordingly, defined those acts as distinct crimes with their own statutory punishments. ( 289, subd. (e); 288a, subd. (i); 261, subd. (a)(3).) The element of prevention from resisting due to intoxication, controlled substance, or anesthetic cannot do double duty as an aggravating factor. (See Flores, at p. 927; People v. Fernandez (1990) 226 Cal.App.3d 669, 680 [victim cannot be vulnerable simply because she was a child where the defendant was convicted of lewd and lascivious conduct upon a child under the age of 14]; People v. Ginese (1981) 121 Cal.App.3d 468, 476-477 [while a victim of an age range crime may be particularly vulnerable for reasons other than his or her age, the mere fact of minority cannot support a finding of particular vulnerability; it is merely referring to punishable elements of the crime already incorporated into the child molesting statute]; People v. Alvarado (2001) 87 Cal.App.4th 178, 195 [vulnerability finding may not be based exclusively on victim being 81 years old when a sentence enhancement was imposed because the victim was over 65 years old; finding may, however, properly be based on victims age in combination with other factors].)

Therefore, to the extent that the courts finding that the victim was particularly vulnerable reflected the jurys determination that she was incapable of resisting due to intoxication or controlled substance, then relying on the existence of a vulnerable victim as an aggravator constitutes an illegal dual use of facts. The problem of a dual use of facts distinguishes the instant case from People v. Calhoun (2007) 40 Cal.4th 398, 404-408, on which the Attorney General relies to justify the vulnerable victim aggravator. Calhoun is inapposite because the aggravating factor found in that casethe fact that there were multiple victimswas necessarily encompassed by the jurys verdict but was not an element of the crime. In Calhoun, it was evident that the jury had necessarily concluded there were multiple manslaughter and reckless driving victims because the victims names were included on the various verdict forms. (Id. at p. 406.) The fact that there were multiple victims, however, was not part of any offense charged in Calhoun, so using the fact that there were multiple victims as an aggravating factor in Calhoun did not contravene the principle that an element of a crime may not be used to impose the high term sentenceunlike here, where being incapable of resistance (and thus, the Attorney General argues, necessarily particularly vulnerable) was an element of the offenses on which Diaz was sentenced to the upper term.

For purposes of a finding that a victim was particularly vulnerable, Particularly . . . means in a special or unusual degree, to an extent greater than in other cases. Vulnerability means defenseless, unguarded, unprotected, accessible, assailable, one who is susceptible to the defendants criminal act. [Citation.] (People v. Loudermilk (1987) 195 Cal.App.3d 996, 1007.) If the trial court believed that Diazs conviction of sexual offenses based on victim incapacity necessarily meant that the victim was particularly vulnerable, the court erred. If, instead, the trial court concluded that apart from the fact of her incapacitation by intoxication or controlled substance, Jane Doe was defenseless, unguarded, unprotected, accessible, assailable, [or] susceptible to the defendants criminal act to a special or unusual degree, to an extent greater than in other cases (ibid.), the trial court engaged in precisely the type of judicial factfinding that is prohibited by Apprendi, supra, 530 U.S. 466, Blakely, supra, 542 U.S. 296, and Cunningham, supra, 127 S.Ct. 856. In either event, the vulnerable victim finding cannot serve as a basis for imposing the upper term.

3. Additional Errors in Imposing the Upper Terms

We also note that the trial court appears to have used the fact of the commission of the offense itself as an aggravating factor in at least two instances in violation of California sentencing law. First, in concluding that the offense involved great bodily injury, the trial court said, [A]ny act, I believe, of rape involves a great violence. Second, to explain its finding that there was violent conduct indicating a great danger to society, the court observed, Having sex against someones will, whether its used [sic] by violence or restraint or through the use of an intoxicant so the person is unconscious or not conscious, what occurs is what I consider to be violent conduct which indicates a serious danger to society. The trial courts use of the fact of the offense itself as an aggravator is impermissible. A factor in aggravation must have the effect of making a crime distinctively worse than the ordinary (People v. Webber (1991) 228 Cal.App.3d 1146, 1169), and a fact that is an element of a crime or that is essential to a jurys determination of guilt may not be used to impose the upper term. (Cunningham, supra, 127 S.Ct. at p. 868; see also Cal. Rules of Court, rule 4.420(d).)

4. Harmless Error Analysis

The failure to submit a sentencing factor to the jury is subject to harmless error analysis(Washington v. Recuenco (2006) 548 U.S. ___, 126 S.Ct. 2546, 2551-2553) under the standard set forth in Chapman v. California (1967) 386 U.S. 18. (People v. Sengpadychith (2001) 26 Cal.4th 316, 327 [Apprendi error evaluated under Chapman standard]). We reject the Attorney Generals position that the Apprendi/Blakely/Cunningham error was harmless beyond a reasonable doubt because if the aggravating factors had been submitted to the jury, it unquestionably would have found each of them true beyond a reasonable doubt. While a jury reasonably could have found aggravating factors true beyond a reasonable doubt on the evidence presented to the trial court, we cannot conclude beyond a reasonable doubt that a jury would have done so. Accordingly, we cannot say that the constitutional error was harmless, and the upper term sentences on counts 10, 13, and 14 must be modified. (See Section VI.D., post.)

C. Consecutive Sentencing under Penal Code Section 667.6, Subdivision (d)

On counts 13 and 14, the two counts of rape by intoxication, anesthesia, or controlled substance ( 261, subd. (a)(3)), the trial court imposed consecutive sentences based on section 667.6, subdivision (d). The court stated that if a reviewing court were to conclude that the trial court was not required by section 667.6, subdivision (d) to impose consecutive sentences on counts 13 and 14, it would have chosen to impose consecutive sentences nonetheless under section 667.6, subdivision (c) because the aggravating factors outweighed the mitigating factors. Diaz claims that the analysis set forth in Apprendi, supra, 530 U.S. 466, Blakely, supra, 542 U.S. 296, and Cunningham, supra, 127 S.Ct. 856 applies with equal force to consecutive sentencing and precludes the trial court from imposing consecutive sentences on counts 13 and 14 in the absence of his admission or a factual finding by a jury beyond a reasonable doubt that the crimes were committed on separate occasions. We cannot agree.

Section 667.6, subdivision (d) mandates full consecutive sentences for certain sexual crimes committed against a single victim on separate occasions. In determining whether crimes against a single victim were committed on separate occasions under this subdivision, the court shall consider whether, between the commission of one sex crime and another, the defendant had a reasonable opportunity to reflect upon his or her actions and nevertheless resumed sexually assaultive behavior. Neither the duration of time between crimes, nor whether or not the defendant lost or abandoned his or her opportunity to attack, shall be, in and of itself, determinative on the issue of whether the crimes in question occurred on separate occasions. ( 667.6, subd. (d).)

The trial court made the requisite finding of separate occasions under section 667.6, subdivision (d): In regards to the issue of consecutive sentences, Ive looked at that tape more times than I want to, and I agree that there are numerous acts. In fact, I believe this case was undercharged, probably for good tactical reasons. But given the number of offenses that occurred and events that occurred in between, its hard to describe how many times there was a break in the events which would have given the defendant time to reflect on what he was doing and perhaps stop. [] There were points where the victim said Ow or Youre hurting me, Stop, or moved his hand away from her private parts or pushed him away, and things sort of stopped at that moment. I remember thinking, when I watched the tape, that, well, its over now. But then he continued. There were clearly points in time where she indicated that she was not participating in this behavior andin this activity, and he continued. [] He also took the time to focus the camera and reposition the camera as if he was a director in a movie. And at some point as I indicated he grabbed her and moveddragged her across the bed. To me that was particularly striking, the way she was moved, as if she was a piece of meat, and at that time theres evidence theres a total lack of recognition of humanity. [] As such, Im finding that these two crimes consisted of separate occasions, and, therefore, Im going to impose full, separate, and consecutive term[s] of eight years for counts 13 and 14.

In the turbulent wake of Apprendi, supra, 530 U.S. 466, Blakely, supra, 542 U.S. 296, and Cunningham, supra, 127 S.Ct. 856, section 667.6, subdivision (d) immediately raises a Sixth Amendment red flag: Clearly this provision requires the trial court to make factual findings, and just as clearly, the question of whether the crimes were committed on separate occasions was not submitted to the jury here for a determination beyond a reasonable doubt. Although section 667.6, subdivision (d) does require judicial factfinding, because that fact-finding did not increase Diazs statutory maximum sentence we do not find Apprendi/Blakely/Cunningham error in the imposition of full consecutive sentences on counts 13 and 14.[1]

As discussed above, the Apprendi/Blakely/Cunningham touchstone is that [o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. (Apprendi, supra, 530 U.S. at p. 490.) The starting point for all Apprendi/Blakely/Cunningham cases is the statutory maximum sentence, the maximum sentence to which the defendant may be sentenced based on the facts reflected in jurys verdict or admitted by the defendant. (Blakely, supra, 542 U.S. at pp. 303-304 [statutory maximum sentence is the as the maximum [t]he [trial judge] may impose without any additional findings].)

Based on the facts in the verdict alone, without the additional judicial determination that the acts occurred on separate occasions, Diaz could have been sentenced on counts 13 and 14 under one of two statutory schemes: section 1170.1 (Californias Determinate Sentencing Law) or section 667.6, subdivision (c), which is a discretionary alternative sentencing scheme for certain sexual offenses. Under section 667.6, subdivision (c), the trial court had the discretion to impose full consecutive sentences whether or not the crimes were committed during a single transaction. (Former  667.6, subd. (c)[2].) If the trial court elected to proceed under section 667.6, subdivision (c), it was required to state the reason for its discretionary sentencing choice (Cal. Rules of Court, rule 4.406(b)(6)), but this did not create a presumption of or legal entitlement to sentencing under section 1170.1. (See People v. Reeder (1984) 152 Cal.App.3d 900, 923; People v. Hernandez (2007) 147 Cal.App.4th 1266, 1271.)

A comparison of the Rules of Court governing the selection of full consecutive sentences under section 667.6, subdivision (c) with the rules for imposing upper term sentences immediately demonstrates the vast difference between the procedures governing the decision to impose an upper term and the decision to impose sentence under section 667.6, subdivision (c). As the court in Cunningham, supra, 127 S.Ct. at page 862 observed, Californias Rules of Court specify that the determination of aggravating factors is entirely about finding facts: Circumstances in aggravation, as crisply defined by the Judicial Council, means facts which justify the imposition of the upper prison term. Rule 4.405(d) (emphasis added). Facts aggravating an offense, the Rules instruct, shall be established by a preponderance of the evidence, Rule 4.420(b) [footnote], and must be stated orally on the record. Rule 4.420(e). Because of this emphasis on facts in the context of aggravators, a majority of the Supreme Court rejected Justice Alitos argument in dissent that policy judgments or subjective beliefs of the trial judge could be aggravating circumstances: Californias Rules . . . constantly refer to facts. As just noted, the Rules define circumstances in aggravation as facts which justify the imposition of the upper prison term. Rule 4.405(d)(emphasis added). [Footnote]. And circumstances in aggravation, the Rules unambiguously declare, shall be established by a preponderance of the evidence, Rule 4.420(b), a clear factfinding directive to which there is no exception. (Id. at pp. 862-863.)

In sharp contrast are the rules governing the trial courts choice of proceeding under section 667.6, subdivision (c) or section 1170.1 for qualifying offenses. The decision to sentence to full consecutive sentences under section 667.6, subdivision (c) is one that generally require[s] a statement of a reason. (Cal. Rules of Court, rule 4.406(b) & 4.406(b)(6).) The responsibility to state a reason means that the trial court shall or must[3]state in simple language the primary factor or factors that support the exercise of discretion. (Cal. Rules of Court, rule 4.406(a).) Rule 4.406, governing the statement of reasons for sentence choices, never uses the words fact or finding, and does not impose a standard of proof. Unlike the series of rules governing the determination of aggravating facts, there are no other rules in the Rules of Court setting forth standards by which to determine facts or factors for the purposes of the decision whether to impose a full consecutive sentence under section 667.6, subdivision (c). The decision to impose full consecutive sentences under section 667.6, subdivision (c), therefore, is wholly discretionary and requires no judicial factfinding beyond the facts contained in the verdict itself, which here established that the trial court could sentence Diaz under section 667.6, subdivision (c) or section 1170.1.

Because the trial court had the discretion under section 667.6, subdivision (c) to sentence Diaz to full consecutive sentences based on the facts encompassed by the verdict alonewithout making any additional findings of factthe statutory maximum Diaz faced for purposes of Apprendi, supra, 530 U.S. 466, Blakely, supra, 542 U.S. 296, and Cunningham, supra, 127 S.Ct. 856, was a full consecutive term on counts 13 and 14. (People v. Groves (2003) 107 Cal.App.4th 1227, 1231.) Therefore, when the trial court made a finding of separate occasions finding under section 667.6, subdivision (d), it did not increase[] the penalty for [the] crime[s] beyond the prescribed statutory maximum. (Apprendi, supra, 530 U.S. at p. 490.) As the courts factual finding did not raise Diazs potential punishment beyond that to which he was already subject based on the verdict alone, the courts failure to submit the question of separate occasions to the jury did not violate the Sixth Amendment. (Ibid.)

D. Proceedings in Light of Sentencing Error

We asked the parties to submit additional briefing on the question of what remedial orders this court should make in the event that we concluded that Diazs sentence violated the Sixth Amendment. Diaz argues that because the upper term sentences here were imposed based on factors that were impermissible under Cunningham, supra, 127 S.Ct. 856, our options are limited to imposing midterm sentences ourselves or remanding for the imposition of midterm or low term sentences. The Attorney General contends that if we conclude that none of the aggravating factors were constitutionally valid, we may remand the matter for a new sentencing hearing at which the trial court could empanel a new jury to make aggravating factor findings in compliance with Cunningham, supra, 127 S.Ct. 856.

The Attorney General acknowledges that there is no explicit statutory authorization for a procedure in which a jury would find aggravating circumstances in support of an upper term, but argues that this certainly does not render such a procedure unlawful. He argues that [i]n the absence of specific statutory guidance, the court retains the inherent power and duty to effect an appropriate procedure to carry out the mandate of the law and to preserve the orderly administration of justice.

Although we are well aware that there exist inherent powers of the courts [that] are derived from the Constitution (art. VI, 1 [reserving judicial power to courts]; [citations omitted]), and are not confined by or dependent on statute (Walker v. Superior Court (1991) 53 Cal.3d 257, 267), we are not convinced that those inherent authorities extend or should be conscripted into supporting the judicial creation of an entirely unprecedented second-chance sentencing trial/rehearing system for defendants whose sentences have been invalidated on appeal due to Apprendi/Blakely/Cunningham error.[4] The magnitude of such a judicial concoction would be immense; it would involve co-opting a wide variety of criminal procedures already prescribed by statute and shoehorning them into a new sentencing system unique to one particular set of criminal defendants. To exercise judicial authority in this manner would require devising, inter alia, systems for charging and pleading aggravating factorsafter a trial on the information has already occurredin such a manner as to give adequate notice of the alleged aggravating factors so as to satisfy due process requirements for criminal defendants. Indeed, because a fact other than a prior conviction used to impose the upper term must first be submitted to a jury and proved beyond a reasonable doubt, unless the accused waives the right to jury trial (Cunningham, supra, ___ U.S. at p. ___ [166 L.Ed.2d at p. 873], it now appears that to satisfy procedural due process, an aggravating fact must be charged in the accusatory pleading. (See Apprendi v. New Jersey (2000) 530 U.S. 466, 476, 494, fn. 19 [147 L.Ed.2d 435, 446, 457, fn. 19]; Jones v. United States (1999) 526 U.S. 227, 243, fn. 6 [143 L.Ed.2d 311, 326, fn. 6] [any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and prove[d] beyond a reasonable doubt (italics added)].) (Barragan v. Superior Court (2007) ___ Cal.App.4th ___ [2007 WL 914768, *2] [permitting, in a just-begun criminal trial, the amendment of the information to allege aggravating factors].) This task would be made all the more complicated by the fact that the California Rules of Court explicitly provide that the list of aggravating factors in California Rules of Court, rule 4.420 is non-exhaustive. (Cal. Rules of Court, rule 4.408 [The enumeration in these rules of some criteria for the making of discretionary sentencing decisions does not prohibit the application of additional criteria reasonably related to the decision being made].)

After resolving the constitutional and practical issues presented by charging an already-convicted and already-sentenced criminal defendant with aggravating factors, we would have to judicially extend the laws concerning discovery in criminal cases to press that statutory creation into one that would offer and permit appropriate post-trial discovery with respect to the charged aggravating factors. As there presently exists no statutory authority for selecting noncapital sentencing juries, we would have to create a system for selecting a jury panel for a post-appeal sentencing trial on aggravating facts. We would need a new system of evidentiary rules to address what evidence from the trial could be admitted at this subsequent sentencing proceedinga system that would have to take into account the fact that the defendant was forced to elect whether to testify at his or her first trial without any knowledge that a second jury would later be empaneled to consider that testimony for the purposes of evaluating aggravating factors. New jury instructions and new verdict forms would have to be developed. We are doubtful that the quasi-legislative creation of procedures for a wholly new sentencing trial on aggravating factors for this single group of criminal defendants who have already been charged, tried, convicted and sentenced, but whose sentences are vacated on Apprendi/Blakely/Cunningham grounds, would adequately protect their constitutional rights, preserve due process, and avoid issues of double jeopardy.

Similarly militating against such a judicial invention is the fact that California courts have long declined to formulate new sentencing schemes as long as a valid sentencing option survives the declaration that a criminal punishment prescribed by statute is unconstitutional. In Rockwell v. Superior Court (1976) 18 Cal.3d 420, 445, the California Supreme Court held unconstitutional the procedure by which California imposed the death penalty on the grounds that the procedure failed to authorize the consideration of mitigating factors and in effect made the death penalty mandatory if enumerated special circumstances were present. The People argued that the Supreme Court could salvage the death penalty system by construing some statutory language as permissive rather than mandatory and by prescrib[ing] procedures that will satisfy the requirements of the Eighth and Fourteenth Amendments. (Ibid.) The Supreme Court refused, observing that its conclusion that the statutes governing the imposition of the death penalty were unconstitutional left intact a valid punishment for those convicted of first degree murder: life imprisonment. (Ibid.; see also Leaming v. Municipal Court (1974) 12 Cal.3d 813 [declaring unconstitutional penal provisions for a second conviction for indecent exposure and leaving the statute to be read in conjunction with section 18, which sets forth the term of imprisonment for felonies where no term is elsewhere specified].) As the Supreme Court explained in Rockwell, this approach is preferable to a wholesale rewriting of Penal Code provisions because [w]ere this court to attempt to devise the necessary procedures and criteria we would not only invade the legislative province, but would also be in the position of having to pass objectively on the constitutionality of procedures of our own design. (Rockwell,at p. 445.) Concurring separately, Justice Clark emphasized that the Supreme Court properly refused to save the law by rewriting it, because the courts must not, in this case or any other, act as a super-legislature. (Id. at p. 449.)

Finally, we are all the more reluctant to impose a new judicially-created sentencing trial scheme for previously-convicted and already-sentenced defendants whose sentences are voided on Apprendi/Blakely/Cunningham grounds in light of the Legislatures response to Cunningham, supra, 127 S.Ct. 856. In urgency legislation signed by the Governor on March 30, 2007, the Legislature amended section 1170, subdivision (b) to eliminate the statutory presumption for the middle term. Previous section 1170, subdivision (b), as it was in effect at the time of Diazs trial, provided that when an offense is punishable by one of three statutory terms, the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime. Rather than invent a system for charging and trying aggravating factors by jury under the reasonable doubt standard, the Legislature simply removed the statutory presumption to the middle term so that the section now reads, When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court. ( 1170, subd. (b), as amended by Stats. 2007, ch. 3,  2 (effective Mar. 30, 2007).)

The amendments made by the Legislature to the Determinate Sentencing Law in response to Cunningham, supra, 127 S.Ct. 856, demonstrate its view that the appropriate immediate method to remedy the constitutional defects in the Determinate Sentencing Law is not the creation of new procedures to submit aggravating factors to juries for findings beyond a reasonable doubt within the current sentencing scheme. Given the Legislatures determination, we think it singularly inappropriate for this court to impose on the trial courts the burden of implementing a judicially-designed aggravating factor trial system that would be unique to those defendants whose sentences were vacated on appeal due to Apprendi/Blakely/Cunningham error.

We conclude that there is no need to remand the matter to the trial court. If we were to remand the matter for a new sentencing hearing the trial court would lack the discretion to impose an upper term sentence, as no aggravating factors were admitted by Diaz or found true by the jury beyond a reasonable doubt, nor did Diaz have any prior convictions. The trial court, therefore, could only consider whether to impose midterm sentences or lower term sentences on counts 10, 13, and 14. Having reviewed the evidence and considered the trial courts comments at sentencing, we are convinced beyond a reasonable doubt that even if the trial court had not considered constitutionally improper aggravating factors, under no circumstances would the trial court have exercised its sentencing discretion to impose low term sentences on counts 10, 13, and 14. Accordingly, we modify the judgment to impose the middle term of six years on counts 10, 13, and 14, for a decrease of six years in Diazs aggregate prison term.

DISPOSITION

The convictions are affirmed. The judgment is modified to impose the middle term of six years on counts 10, 13, 14. The clerk of the superior court is ordered to prepare a new abstract of judgment reflecting the imposition of six-year terms on counts 10, 13, and 14. In preparing the abstract of judgment, the clerk should ensure that the sentences for counts 13 and 14 reflect that the six-year midterm sentences are full terms to be served consecutively, not consecutive sentences of 1/3 the middle term as they were previously and incorrectly designated. The clerk of the superior court shall forward a copy of the new abstract of judgment to the Department of Corrections.

CERTIFIED FOR PARTIAL PUBLICATION.

ZELON, J.

I concur:

JOHNSON, J.

PERLUSS, P. J., Concurring and Dissenting.

I fully agree with parts 1 through 5 of the majority opinion. With respect to part 6, dealing with sentencing issues under Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435] (Apprendi), Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403] (Blakely) and Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham), I also agree (1) Mark Diaz did not forfeit his argument 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 by failing to object on constitutional grounds in the trial court; (2) the trial courts imposition of upper term sentences on counts 10, 13 and 14 based on its own factual findings of aggravating circumstances, none of which involved a prior conviction (see Cunningham, supra, 127 S.Ct. at p. 868; Almendarez-Torres v. United States (1998) 523 U.S. 224 [118 S.Ct. 1219, 140 L.Ed.2d 350])[5]or even more broadly the defendants recidivism (see People v. Thomas (2001) 91 Cal.App.4th 212, 221-222 [courts have held that no jury trial right exists on matters involving the more broadly framed issue of recidivism]; see also People v. McGee (2006) 38 Cal.4th 682, 706-707),[6]violated Mark Diazs constitutional right to a jury trial; and (3) imposition of consecutive sentences under Penal Code section 667.6, subdivisions (c) and (d), does not constitute Blakely/Cunningham error. I respectfully disagree, however, with the majoritys conclusion the error in imposing upper term sentences was not harmless.[7]

As the majority explains, the trial courts error in making the factual findings upon which it based its decision to impose the upper term sentences, rather than submitting those issues to the jury, is subject to harmless error analysis. (Washington v. Recuenco (2006) 548 U.S. __ [126 S.Ct. 2546, 165 L.Ed.2d 466] [Apprendi/Blakely error not structural error requiring automatic reversal]; see People v. Sengpadychith (2001) 26 Cal.4th 316, 327 [Apprendi error reviewable under the harmless error standard of Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705] (Chapman)]; People v. Davis (2005) 36 Cal.4th 510, 564 [same].) An error may be found harmless under Chapman only if, on appeal, the Attorney General demonstrates beyond a reasonable doubt the result would have been the same notwithstanding the error. (E.g., Sengpadychith, at p. 320.)

I am persuaded on this record the Blakely/Cunningham error was harmless. Although the trial court identified four circumstances or factors in aggravation, it expressly stated any one of those factors standing alone would outweigh the mitigating factors (primarily Diazs lack of prior criminal record) and justify the upper-term, consecutive sentences imposed.[8]Accordingly, although I agree with the majority that several of the circumstances discussed by the court appear to duplicate elements of Diazs crimes and, therefore, were not properly considered as aggravating factors independent of any Blakely/Cunningham issue (see Cal. Rules of Court, rule 4.420(d)), the proper focus of the required harmless error analysis is whether we are persuaded the jury would have found true beyond a reasonable doubt any one of the factors upon which the court based its aggravated sentence. (See People v. Cleveland (2001) 87 Cal.App.4th 263, 271 [finding any Apprendi error harmless because [w]e have no doubt a jury would have reached the same conclusion under the reasonable doubt standard].)

The first aggravating circumstance identified by the court was that Diazs repeated sexual assaults on his semi-conscious victim disclosed a high degree of cruelty, viciousness or callousness. (See Cal. Rules of Court, rule 4.421(a)(1) [[t]he crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness].)[9] Diazs conduct toward his incapacitated victim upon which this assessment was based was essentially undisputed: It was captured on the videotape Diaz made of his own assault; Diaz himself did not deny the tape accurately reflected what had occurred, asserting only that the victim had consented to his conduct ‑‑ an interpretation of the visual record the jury implicitly rejected in finding that the victim was prevented from resisting Diaz by intoxication and that Diaz, in turn, was guilty of two counts of rape by use of drugs, two counts of oral copulation by anesthesia or controlled substance and unlawful sexual penetration by a foreign object.

Accepting the jurys conclusion the victim lacked the capacity to consent to Diazs assaultive behavior, I have no doubt that the same jury would have also concluded Diazs actions, including his decision to record them on videotape, disclosed a high degree of cruelty or callousness. In addition to the five separate sex crimes for which he was convicted, as well as a number of further uncharged offenses,[10]the tape shows Diaz repeatedly slapping the victim, who largely lies limp, motionless and moaning on the bed, but who occasionally rouses herself to cry out ow, youre hurting me, no, dont do it and stop. It also depicts Diaz dragging the victim across the bed and positioning and repositioning her body for the camera ‑‑ as if he was a director in a movie, in the words of the trial judge.[11] Applying Chapmansheightened beyond-a-reasonable-doubt standard for assessing harmless error in cases involving violation of a defendants federal constitutional rights, from this record I am confident the jury would necessarily have found, beyond a reasonable doubt, the existence of this aggravating factor if the issue had been submitted to it. (See People v. Cleveland, supra, 87 Cal.App.4th at p. 271.) Any sentencing error, therefore, was harmless.

CERTIFIED FOR PUBLICATION

PERLUSS, P. J.

Publication courtesy of California free legal advice.

Analysis and review provided by Carlsbad Property line attorney.

* Pursuant to California Rules of Court, rules 8.1100 and 8.1110, this opinion is certified for publication with the exception of parts I through V.

[1] The error in imposing upper term sentences on these counts has already been discussed ante, in Section VI.B.

[2] Section 667.6, subdivision (c) has since been amended on two occasions but remains similar in effect. The statute now provides, In lieu of the term provided in Section 1170.1, a full, separate, and consecutive term may be imposed for each violation of an offense specified in subdivision (e) if the crimes involve the same victim on the same occasion. A term may be imposed consecutively pursuant to this subdivision if a person is convicted of at least one offense specified in subdivision (e). ( 667.6, subd. (c).

[3] At all times relevant to this case, the rule used the term shall. Rule 4.406 was subsequently amended and now uses the word must instead.

[4] We do not question that in the absence of a constitutionally legitimate sentencing procedure the courts may and, indeed, must employ their inherent powers to ensure that properly convicted criminal defendants are sentenced to terms of imprisonment. Courts have the inherent power to create new forms of procedure in particular pending cases. The . . . power arises from necessity where, in the absence of any previously established procedural rule, rights would be lost or the court would be unable to function. [Citation.] (James H. v. Superior Court (1978) 77 Cal.App.3d 169, 175.) This is not, however, an instance in which the court would be unable to function, rights would be lost, or convicted defendants would go without prison sentences if we do not invent new procedures. The Supreme Court did not strike down Californias entire sentencing scheme, only the procedure for imposing high term sentences based on aggravating facts, other than prior convictions, found by a judge rather than a jury and by a preponderance of the evidence standard. What is at stake here is not the continued operation of our trial courts, it is the question of whether one specific group of criminal defendantsthose sentenced to upper term sentences in violation of the Sixth Amendment where the constitutional error is not harmlesswill receive high term or midterm sentences.

[5] The question whether there is a violation of the defendants rights under Cunningham if the defendant is eligible for the upper term based on a single aggravating factor established by means that satisfy the governing Sixth Amendment authorities even if the trial judge relies on other aggravating factors not established by such means in exercising his or her discretion to impose an upper term sentence is currently pending before the California Supreme Court. (E.g., People v. Towne, review granted July 14, 2004, S125677, supp. briefing ordered, Feb. 7, 2007.)

[6] Whether the prior conviction exception of Almendarez-Torres v. United States, supra, 523 U.S. 224, as set forth in Cunningham, is properly interpreted to apply not only to the fact of a prior conviction but also to other issues relating to the defendants recidivism, including the defendants status as a probationer or parolee at the time the current offense was committed and the existence of numerous or increasingly serious prior convictions is also currently pending before the California Supreme Court. (People v. Towne, supra, S125677, supp. briefing ordered, Feb. 7, 2007 [parties to address the following issue, among others, Do Cunningham v. California, supra, and Almendarez-Torres v. United States (1998) 523 U.S. 224, 239-247 [118 S.Ct. 1219, 140 L.Ed.2d 350], permit the trial judge to sentence defendant to the upper term based on any or all of the following aggravating factors, without submitting them to a jury: the defendants prior convictions as an adult are numerous and of increasing seriousness; the defendant has served a prior prison term; the defendant was on parole when the crime was committed; the defendants prior performance on probation or parole was unsatisfactory (California Rules of Court, Rule 4.421, subds. (b)(2) - (b)(5))?]; People v. Hernandez, review granted Feb. 7, 2007, S148974; People v. Pardo, review granted Feb. 7, 2007, S148914.)

[7] Because I would affirm the judgment in its entirety, I express no view on the majoritys analysis whether a remand for resentencing is appropriate and, if so, what procedures may be used by the trial court on remand.

[8] The court stated, I want to make the record clear that, as for the factors that I found in aggravation, each factor alone is so strong that I would find that each factor alone would separately ‑‑ is strong enough to out ‑‑ as a single factor or the factors in mitigation, let alone those facts in aggravation in their entirety. Looking at the four different factors in aggravation that I found, I found each one is strong enough by themselves to outweigh the factors in mitigation, let alone the four factors in aggravation when viewed together.

[9] As the majority correctly notes, the trial court expressed its view that any act, I believe, of rape involves a great violence, but it specifically found as an aggravating circumstance not that Diazs crimes involved great violence or great bodily harm, but that his acts disclosed a high degree of cruelty, viciousness or callousness: Specifically, Im finding it involved a high degree of cruelty, viciousness and [sic] callousness. As I said, she was treated in a manner which completely denied her humanity . . . .

[10] The trial court observed during the sentencing hearing, Ive looked at that tape more times than I want to, and I agree that there are numerous acts. In fact, I believe this case was undercharged, probably for good tactical reasons.

[11] In its findings the viciousness or callousness of Diazs conduct while committing the crimes was an aggravating factor, the trial court stated, He also took the time to focus the camera and reposition the camera as if he was a director in a movie. And at some points as I indicated he grabbed her and moved ‑‑ dragged her across the bed. To me that was particularly striking, the way she was moved, as if she was a piece of meat, and at that time theres evidence theres a total lack of recognition of humanity.