P. v. Reed

Filed 7/3/07 P. v. Reed 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Placer)

Defendant appeals from the judgment after a jury found him guilty as charged of two counts of second degree robbery (Pen. Code, 211; counts 1, 4),^[1]two counts of false imprisonment by violence ( 236; counts 2, 5), and one count of assault by means of force likely to produce great bodily injury. ( 245, subd. (a)(1); count 3.) The trial court found true the allegations that as to each of the five counts, defendant suffered several prior serious felony convictions ( 667, subd. (a)(1)), two prior separate prison terms ( 667.5, subd. (b)), and 13 prior strike convictions. ( 667, subds. (b)-(i).) The trial court imposed a total unstayed prison term of 100 years to life plus 28 years.

On appeal, defendant contends imposition of consecutive sentences on two counts of false imprisonment violates section 654 and Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely). In a supplemental opening brief, he challenges the sufficiency of the evidence to support his conviction for assault with force likely to produce great bodily injury.

We agree with defendant that his conviction for felony assault must be reversed and shall order that the abstract of judgment be amended.^[2]We find no other error and shall affirm the judgment as amended.

FACTUAL BACKGROUND

A. Robbery of Kristin King^[3]

On March 4, 2003, Cheryl Maki, the owner of a heating and air conditioning business, hired defendant to work for her company as a service technician and installer. He was issued a shirt and hat with the Maki logo and worked for the company sporadically until April 3, 2003, at which time he stopped reporting for work but failed to return the Maki shirt and hat.

On the afternoon of September 19, 2003, Kristin King and Joyella Friedlander were working at Advance America, a paycheck advance company in Auburn. Friedlander received a call from a man representing himself as the property manager of the building who said someone from Maki Heating and Air would be coming to inspect the heating and air conditioning unit.

At approximately 3:30 p.m., defendant arrived at Advance America dressed in a shirt and hat with the Maki Heating and Air logo. Friedlander let him in and took him to the back where he began working on the vents and the thermostat. When she left work at 4:20 p.m., only defendant and King remained in the store.

Defendant continued to work until 6:00 p.m. when he asked King to help him look for some paperwork. When she walked into the storage area to assist him, he grabbed her from behind, placed one arm around her neck in a choke hold and held a metal object against her throat. King could only see the object out of the corner of her eye, but she thought it was a utility or putty knife. While holding the object to her throat, defendant walked King to the front door and told her to do as he said and nobody gets hurt. He locked the door, removed his arm from Kings throat, and directed her to the cash register drawers, which he emptied. Next, he ordered King to open the safe and empty it and she complied.

After taking approximately $2,600 in cash and $530 in cashiers checks, defendant escorted King into the bathroom. There he tied her wrists with zip ties and fastened them to a rail in the bathroom. He told her to be quiet, covered her mouth with duct tape and exited the establishment through the back door. King managed to free her hands by pulling on the zip ties, cutting her wrists in the process, and then called the police.

B. Robbery of Heidi Matlock^[4]

Heidi Matlock was working at Accents, a gift card and candle shop in Roseville Square, on October 6, 2003. Sometime between 4:30 and 5:30 p.m., while she was the only employee in the shop, defendant entered the store claiming he was looking for an anniversary gift. Matlock showed him a plant and after looking at it, defendant said he was going to look at other stores and might return. He asked her when the store closed and she told him it would be open until 7:30 or 8:00 p.m.

Defendant returned to the store at approximately 7:10 p.m. Matlock was completing a sale to an elderly couple and when they left, she was alone in the store with defendant. He approached the counter with a plant and then said, I am sorry to do this to you, but give me all of the money in the register. He advised her he had a gun and made a movement with his hand to the back of his waist. He told her that life was worth more than the money or the cash, so she opened the register and he took approximately $200 or $300 from the drawer.

Defendant then ordered Matlock to the back of the store. She grabbed a portable telephone, put it in her apron, and walked to the back room, where defendant told her to sit on a rolling desk chair. He ripped a cord from a light fixture and used it to tie her hands behind her back. Using duct tape, he further bound her hands and then taped her waist and hips to the chair, bound her ankles, and taped her mouth closed. Defendant asked Matlock whether she had any money or whether there was any money in the back room. When she indicated there was none, he searched her pockets and found the telephone, so he removed the batteries and threw the phone on the floor. He told her to wait a couple of minutes so he could go to his truck and get away and then he exited through the back door, closing it behind him.

About two or three minutes later, Matlock used her legs and feet to open the door, pushed herself through the store and out the front door, where she summoned help.

DISCUSSION

I

The Evidence Fails to Establish Assault by Means

of Force Likely to Inflict Great Bodily Injury

Defendant was convicted in count three of assaulting King by means of force likely to produce great bodily injury.

( 245, subd. (a)(1).) In a supplemental opening brief, he contends the evidence is insufficient to support this conviction because the evidence shows he only used the bare force necessary to compel King to comply with his demands. He inflicted no injury and made no effort to do so. Respondent contends the evidence is sufficient to support the verdict because it establishes that defendant threatened to immediately apply force likely to produce great bodily injury.

We agree with defendant. An assault by means of force likely to produce great bodily injury requires proof the assailant actually used such force. While the assault need not result in any injury, the use of force must be actual not threatened.

In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] Reversal on this ground is unwarranted unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]. [Citation.] (People v. Bolin (1998) 18 Cal.4th 297, 331.)

Although section 245, subdivision (a)(1) may be committed by committing an assault with a deadly weapon or by any means of force likely to produce great bodily injury ( 245, subd. (a)(1) (hereafter felony assault)), the information alleged the latter theory and the jury was so charged. In closing argument, the prosecutor told the jury this offense was committed when defendant got behind Ms. King, grabbed her on the shoulder, put an item to her neck, touching the neck, cold, hard item. I would submit perhaps a tool of some sort. That or those are the facts that the People are submitting to establish this crime [] . . . . And I submit the act of putting the tool to the neck certainly is by means of force likely to produce great bodily injury to kill somebody, and it was done as a conditional threat. (Italics added.)

A charge under section 245, subdivision (a)(1) for felony assault has essentially two elements, the assault, and the element of force. (CALJIC No. 9.02.) As to the force, the statute is violated when the assault is committed by any means of force likely to produce great bodily injury. (CALJIC No. 9.02.)

An assault is defined as an unlawful attempt, coupled with the present ability, to commit a violent injury on the person of another, or in other words, it is an attempt to commit a battery. [Citations.] (People v. Colantuono (1994) 7 Cal.4th 206, 214.)

Ordinarily, [a]n assault occurs whenever [t]he next movement would, at least to all appearance, complete the battery. [Citation.] [Citation.] But there can also be an assault when the battery is only threatened. [Citation.] Where a party puts in a condition which must be at once performed, and which condition he has no right to impose, and his intent is immediately to enforce performance by violence, and he places himself in a position to do so, and proceeds as far as it is then necessary for him to go in order to carry out his intention, then it is as much an assault as if he actually struck, or shot, at the other party, and missed him. [Citation.] A conditional future threat will not suffice. (People v. Page (2004) 123 Cal.App.4th 1466, 1473.) Thus, a simple assault may be committed by a threat of force. (People v. Page, supra, 123 Cal.App.4th at p. 1473; People v. McCoy (1944) 25 Cal.2d 177, 192-193.)^[5]

However, to prove felony assault, the prosecution must also prove the assault was committed by any means of force likely to produce great bodily injury. The term great bodily injury means significant or substantial bodily injury or damage. (People v. Duke (1985) 174 Cal.App.3d 296, 302 (Duke).) Quoting from Mr. Witkin, the court in Duke explained the salient aspects of this crime: (1) no specific intent is required; (2) no weapon or instrument is required; (3) the victim usually is seriously injured, but this is not a necessary element of the crime. [Citation.] . . . The crime . . ., like other assaults, may be committed without infliction of any physical injury, and even though no blow is actually struck. [Citation.] The issue, therefore, is not whether serious injury was caused, but whether the force used was such as would be likely to cause it. [Citation.] [] It would seem, however, that an assault or battery which does not result in any physical injury, and does not come within the scope of any of the other felonious assaults, is hardly likely to support anything more than a simple misdemeanor conviction [citation]. And the cases tend to bear out this assumption, for almost invariably they involve blows and physical injuries. If a deadly weapon is used to inflict them the charge can be assault with a deadly weapon [citation]. But if hands, fists or feet, etc., are the means employed, the charge will normally be assault with force likely to produce great bodily injury. And the nature and extent of the injuries inflicted will often be the controlling factor in determining that the force used was of that character. [Citation.] (Ibid., italics added.)

The court in Duke concluded that in determining the sufficiency of the evidence to prove felony assault, the court must look to the force actually used by the appellant to determine if it was likely to cause great bodily injury to the victim. We do not consider the force that the appellant could have used against the victim. (174 Cal.App.3d at p. 303.) Applying this test, the court reversed the conviction for assault by means of force likely to produce great bodily injury where the evidence showed the defendant grabbed the victim around the neck without choking her and touched her breast. The court declined to consider the fact the defendant could have broken the victims neck or choked her as that would involve gross speculation on the part of the jury as to what he would have done had he not stopped of his own accord or been stopped by outside forces. (Ibid.)

Here, the evidence shows defendant merely touched Kings neck with a metal object, possibly a putty knife. There is no evidence he cut her or attempted to choke her with it. The fact he impliedly threatened to inflict bodily injury on her if she did not comply with his demands (do as I say and nobody gets hurt) is irrelevant. While that threat may be sufficient to establish that a simple assault was committed (People v. McCoy, supra, 25 Cal.2d at p. 192), it does not establish the felonious element of force, i.e. that the assault was committed by means of force likely to produce great bodily injury. As to that element, we must look to the force actually used, not the force threatened to be used (Duke, supra, 174 Cal.App.3d at p. 303) and as stated, here the evidence shows only that defendant touched King with the metal object so as to convey the possibility of injury. Because felony assault is committed by means of force likely to produce great bodily injury and not by means of a threat to use such force, whatever the degree of force threatened, the evidence fails to support the jurys verdict. We shall therefore reverse the conviction on count three and order the judgment modified. Because the trial court stayed the sentence on this offense, the term of imprisonment is not affected and the sentence need not be modified.

II

Imposition of Consecutive Sentences

Does Not Violate Section 654

Defendant contends imposition of consecutive sentences for the two counts of false imprisonment violated section 654 because those two offenses were committed during a course of conduct that was indivisible from the underlying robberies. He argues that restraining the victims served to facilitate completion of the two robberies and was therefore incidental to the robberies. Respondent contends this claim has no merit because there is substantial evidence to support the trial courts finding that the acts of false imprisonment were divisible from the robberies. We agree with respondent.

At the time of sentencing, defendant conceded the trial court could lawfully impose consecutive sentences for the two convictions for false imprisonment but urged the court to impose concurrent sentences nonetheless.^[6] The trial court declined the request, finding the false imprisonment was not a necessary part of the robbery.

Section 654, subdivision (a) provides that [a]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. . . .

The purpose of this provision is to ensure that a defendants punishment will be commensurate with his culpability. (People v. Perez, supra, 23 Cal.3d at pp. 550-551.) The statute literally applies only where [multiple] punishment arises out of multiple statutory violations produced by the same act or omission. [Citation.] However, . . . its protection has been extended to cases in which there are several offenses committed during a course of conduct deemed to be indivisible in time. [Citation.] [Citations.] [] It is defendant's intent and objective, not the temporal proximity of his offenses, which determine whether the transaction is indivisible. [Citations.] . . . [I]f all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once. [Citation.] [Citation.] (People v. Hicks (1993) 6 Cal.4th 784, 789.)

Ascertaining a defendants intent and objective is primarily a question of fact for the trial court whose express or implied finding that the crimes were divisible will be upheld on appeal if there is substantial evidence to support it. (People v. Osband (1996) 13 Cal.4th 622, 730.)

While the crime of robbery is not actually complete until the robber has won his way to a place of temporary safety (In re Jesse F. (1982) 137 Cal.App.3d 164, 171), not every act committed by the robber before making his getaway is incidental to the robbery. (Ibid.) Once the fruits of the robbery are secure and escape is assured, a gratuitous act of violence that is unnecessary to effectuate the robbery, will be treated as a separate act. (Ibid.)

Thus, the courts have held that violence or other crimes committed after money has been obtained, are unnecessary to facilitate the robbery and may be separately punished. (See, e.g., People v. Nguyen (1988) 204 Cal.App.3d 181, 191 [Once robbers have neutralized any potential resistance by the victims, an assault . . . to facilitate a safe escape, evade prosecution, or for no reason at all, may be found by the trier of fact to have been done for an independent reason"]; People v. Foster (1988) 201 Cal.App.3d 20, 28; see also People v. Saffle (1992) 4 Cal.App.4th 434, 439-440 [holding false imprisonment was not incidental to the commission of sex offenses where the victim was subjected to threats of future bodily injury after the sex offenses were completed and the defendant sought to prevent the victim from reporting the incident].)

In People v. Foster, supra, 201 Cal.App.3d 20, imposition of consecutive sentences for robbery and false imprisonment was upheld where the defendant and his accomplice robbed a convenience store and after obtaining all the money, forced the three victims into the store cooler and blocked their exit with a cart. The reviewing court rejected the defendants claim that the false imprisonment of the victims was merely incidental to the robbery. The imprisonment of the victims occurred after the robbers had obtained all of the money, and therefore was not necessary or incidental to committing the robbery. Locking the victims in the store cooler was potentially dangerous to their safety and health. It is analogous to a needless or vicious assault committed after a robbery, which has long been held separately punishable and distinguishable from an assault which is merely incidental to robbery. (Id. at pp. 27-28.)

We find Foster dispositive. Defendant robbed both women at a time when he knew each would be alone in the store, then after obtaining all the money, forced each victim into a back room where he tied her up, secured her body to another object to make escape very difficult, and used duct tape to seal her mouth shut to prevent her from calling for help. While his intent may have been to buy himself some time to escape,^[7]he went further than necessary to assure that end because he had already obtained all the money and could have just fled. Instead, he subjected both victims to further risk of harm by imprisoning them in a back room at the end of the business day.^[8] Had either victim failed to escape her restraints, she could have been confined until the next business day, far more time than defendant needed to escape.

Nor is defendant aided by People v. Martinez (1980) 109 Cal.App.3d 851. There, the appellate court held that only one sentence may be imposed for assault with intent to commit rape ( 220) and false imprisonment by force and violence ( 236) where the defendant assaulted his victim, dragged her under a bridge and, after desisting from the attempted rape, held her for a few moments to convince her not to complain to the police. Momentarily holding the victim to convince her not to report the assault is clearly incidental to the attempted rape, and unlike in the present case, it did not subject her to any additional risk of harm. (Id. at p. 858.)

For these reasons, we find under all the circumstances that neither offense of false imprisonment was incidental to the corresponding robbery and therefore both offenses are punishable as separate acts.

III

Application of Section 654 Does Not Violate

Defendants Right to a Jury Trial

Defendant contends imposition of unstayed consecutive terms of imprisonment violates the rule announced in Blakely, supra, 542 U.S. 296 [159 L.Ed.2d 403] because it was the trial court rather than the jury that determined the factual predicate for applying section 654. Respondent contends this claim was rejected in People v. Black (2005) 35 Cal.4th 1238.

Although the decision in Black is no longer binding on us,^[9]we agree with respondent that section 654 does not implicate Blakely.

In a line of cases beginning with Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435](Apprendi), the United States Supreme Court held 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. (Id. at p. 490 [at p. 455], italics added.)

In Blakely, supra, 542 U.S. 296 [159 L.Ed.2d 403], the high court held that the statutory maximum under Apprendi is the maximum sentence the trial court may impose based solely on the facts reflected in the jury verdict or admitted by the defendant. (Id. at p. 303 [159 L.Ed.2d at p. 413].) Writing for the majority, Justice Scalia explained that the rule reflects two longstanding tenets of common-law criminal jurisprudence: that the truth of every accusation against a defendant should afterwards be confirmed by the unanimous suffrage of twelve of his equals and neighbors, [citation], and that an accusation which lacks any particular fact which the law makes essential to the punishment is . . . no accusation within the requirements of the common law, and it is no accusation in reason, [citation]. (542 U.S. at p. 302 [159 L.Ed.2d at p. 412].)

Blakely does not rule out all judicial fact-finding made for purposes of imposing sentence however. As Justice Scalia explained in the context of indeterminate sentencing, a judge (like a parole board) may implicitly rule on those facts he deems important to the exercise of his sentencing discretion. But the facts do not pertain to whether the defendant has a legal right to a lesser sentence -- and that makes all the difference insofar as judicial impingement upon the traditional role of the jury is concerned. In a system that says the judge may punish burglary with 10 to 40 years, every burglar knows he is risking 40 years in jail. (542 U.S. at p. 309 [159 L.Ed.2d at p. 417].)

More recently, in United States v. Booker (2005) 543 U.S. 220 [160 L.Ed.2d 621] (Booker), the Supreme Court applied its holding in Blakely to the federal sentencing guidelines (Guidelines). Booker was charged with possession with intent to distribute at least 50 grams of cocaine base. The jury heard evidence that he had 92.5 grams of cocaine in a duffel bag and convicted him of violating 21 United States Code section 841(a)(1). That statute prescribes a minimum sentence of 10 years in prison and a maximum sentence of life in prison. (Booker, supra, 543 U.S. at p. 227 [160 L.Ed.2d at p. 639].) However, based upon Bookers criminal history and the quantity of drugs found by the jury, the Guidelines mandated the court to select a base term of not less than 210 nor more than 262 months in prison. At a post-trial sentencing hearing, the trial court found by a preponderance of the evidence that Booker possessed an additional 566 grams of crack and was guilty of obstructing justice. Based upon these findings, the Guidelines mandated that the court impose a sentence that ranged from 360 months to life imprisonment, and the court imposed a sentence of 360 months. (Id. at p. 235 [at p. 644].)

The Booker majority concluded that imposition of the enhanced sentence based on facts found by the court beyond those found by the jury violated the Sixth Amendment. The majority explained that, like the statutory scheme in Blakely, the federal guideline system is mandatory and imposes binding requirements on the sentencing court. If the Guidelines as currently written could be read as merely advisory provisions that recommended, rather than required, the selection of particular sentences in response to differing sets of facts, their use would not implicate the Sixth Amendment. We have never doubted the authority of a judge to exercise broad discretion in imposing a sentence within a statutory range . . . when a trial judge exercises his discretion to select a specific sentence within a defined range, the defendant has no right to a jury determination of the facts that the judge deems relevant.

(543 U.S. at p. 233 [160 L.Ed.2d at p. 643].)

The United States Supreme Court recently held that imposition of the upper term of imprisonment under Californias determinate sentencing law (DSL) violates the defendants right to a jury trial contrary to the California Supreme Courts decision in Black, supra. (Cunningham, supra, ___ U.S.___ [166 L.Ed.2d at p. 876].) In Cunningham the high court concluded that it is the middle term specified in Californias DSL, not the upper term, that is the relevant statutory maximum. (Ibid.) Noting that an upper term sentence may be imposed only when the trial judge finds an aggravating circumstance (see 1170, subd. (b)), the court concluded that [b]ecause circumstances in aggravation are found by the judge, not the jury, and need only be established by a preponderance of the evidence, not beyond a reasonable doubt . . . the DSL violates Apprendis bright-line rule. (Id. at p. ____ [at p. 873].)

Cunningham did not address the question of consecutive sentences. Nevertheless, as we shall show, Cunningham does not implicate that sentencing choice nor the application of section 654, because unlike imposition of an upper term, there is no statutory presumption for imposing a concurrent term and application of section 654 does not serve to increase the term of imprisonment above the statutory maximum.

Section 1170.1, subdivision (a) sets forth the general scheme for imposing consecutive sentences, providing that a subordinate term for each consecutive offense shall consist of one-third the middle term of imprisonment proscribed for that offense. Under section 669,^[10]the trial court has an affirmative duty to determine whether the terms of imprisonment for multiple offenses are to be served concurrently or consecutively and failure to make that determination results in concurrent sentences. (In re Calhoun (1976) 17 Cal.3d 75, 80-82.)

However, section 669 does not direct the court to impose concurrent or consecutive sentences. That determination is left to the sound discretion of the trial court. (People v. Jenkins (1995) 10 Cal.4th 234, 255-256.) Unlike the statutory presumption in favor of the middle term, there is no comparable statutory presumption in favor of concurrent rather than consecutive sentences for multiple offenses except where consecutive sentencing is statutorily required. The trial court is required to determine whether a sentence shall be consecutive or concurrent but is not required to presume in favor of concurrent sentencing. (People v. Reeder (1984) 152 Cal.App.3d 900, 923.)

The sentencing court is required to state reasons for its sentencing choices ( 1170, subd. (c)), including a decision to impose consecutive sentences. (Cal. Rules of Court, rule 4.406(b)(5) and (6) (hereafter rule); People v. Walker (1978) 83 Cal.App.3d 619, 622.) The purpose of this requirement is to facilitate appellate review and to aid in preserving public confidence in the decision-making process by demonstrating that the process is careful, reasoned, and equitable. (People v. Martin (1986) 42 Cal.3d 437, 449-450.) Rule 4.425 sets forth the criteria affecting the decision to impose consecutive rather than concurrent sentences.^[11] These criteria are in the nature of true guidelines intended to inform the courts exercise of discretion.

Unlike in Booker, neither the rules nor sections 1170.1 and 669 mandate a particular result based upon a finding of certain facts. The decision to impose consecutive sentences under section 669 does not implicate the Blakely line of cases because those cases do not prohibit judicial fact-finding in the exercise of discretion to impose a sentence within the statutory maximum range. Because there is no right to concurrent sentences, the statutory maximum is an aggregate consecutive term. Every person who commits multiple crimes knows that he or she is risking consecutive sentences. Thus, when the court exercises its discretion to impose a consecutive sentence, the defendant has no right to a jury determination of the facts the court deems relevant to that determination.

Moreover, because section 654 operates as a bar against multiple punishment (People v. Hicks, supra, 6 Cal.4th at p. 789), it serves to reduce the aggregate term of imprisonment not to increase punishment over the statutory maximum. For this reason, we hold that application of section 654 does not implicate Apprendi and its progeny.

DISPOSITION

The conviction on count three for assault by means of force likely to produce great bodily injury (Pen. Code 245, subd. (a)(1)) is reversed. The superior court is directed to amend the abstract of judgment accordingly and to forward a copy of the amended abstract to the Department of Corrections and Rehabilitation. As amended, the judgment is affirmed.

BLEASE , Acting P. J.

We concur:

RAYE , J.

HULL, J.

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^[1] All further section references are to the Penal Code unless otherwise specified.

^[2] Because the trial court stayed imposition of sentence on this count, reversal will not effect defendants term of imprisonment.

^[3] Counts 1, 2, and 3.

^[4] Counts 4 and 5.

^[5] The jury was instructed that assault may be committed by making a conditional threat to apply physical force. (See CALJIC No. 9.00.1.)

^[6] Because the waiver doctrine does not apply to the application of section 654, counsels remark does not waive defendants claim on appeal. (People v. Perez (1979) 23 Cal.3d 545, 549, fn. 3.)

^[7] Defendant told Matlock to wait a couple of minutes so he could get away.

^[8] By binding the victims with zip ties and duct tape, defendant increased the risk of harm to both of them in their efforts to extricate themselves from their restraints. Indeed, King cut her wrist as she pulled free of the ties while Matlock was forced to use her legs to open a lock which was about three or four feet above her and then wheel herself through the store and out the front door, and as she testified, luckily the gentleman next door was still there, because usually he [leaves] at seven.

^[9] On February 20, 2007, the United States Supreme Court vacated the judgment in Black and remanded the case to the California Supreme Court for further consideration in light of Cunningham v. California (2007) 549 U.S. [166 L.Ed.2d 856]. In Black, the Supreme Court of California addressed the questions whether Apprendi and its progeny require a jury trial on factors in aggravation that justify imposition of an upper term sentence or a consecutive sentence. The court answered both questions in the negative.

^[10] Section 669 provides in pertinent part: When any person is convicted of two or more crimes, whether in the same proceeding or court or in different proceedings or courts, and whether by judgment rendered by the same judge or by different judges, the second or other subsequent judgment upon which sentence is ordered to be executed shall direct whether the terms of imprisonment or any of them to which he or she is sentenced shall run concurrently or consecutively. . . .

^[11] Rule 4.425 states: (a) Facts relating to the crimes, including whether or not:

(1) The crimes and their objectives were predominantly independent of each other.

(2) The crimes involved separate acts of violence or threats of violence; or

(3) The crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior.

(b) Any circumstances in aggravation or mitigation may be considered in deciding whether to impose consecutive rather than concurrent sentences, except (i) a fact used to impose the upper term, (ii) a fact used to otherwise enhance the defendant's prison sentence, and (iii) a fact that is an element of the crime shall not be used to impose consecutive sentences.