P. v. Brumbaugh

Filed 10/15/07 P. v. Brumbaugh CA3

Opinion following remand by U.S. Supreme Court

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Glenn)

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Following a mistrial on more serious charges, defendant Scott Bradly Brumbaugh pleaded guilty to felony sexual battery and received probation. (Pen. Code,  243.4, subd. (a).)^[1] After defendant violated the terms of his probation, the trial court sentenced him in 2004 to the upper term of four years in state prison on the sexual battery conviction.

Defendant claims that the trial courts imposition of the upper term without a jury finding of aggravating factors beyond a reasonable doubt violated the Sixth Amendment of the Constitution as interpreted in Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham).

This is the second time this court has confronted the same issue in this case. In 2004, defendant first raised the constitutional violation based on the newly decided opinion in Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403]. In October 2005, we disagreed with defendants position and issued an opinion affirming the judgment based on People v. Black (2005) 35 Cal.4th 1238, 1244, 1254 (Black I). (People v. Brumbaugh (Oct. 31, 2005, C047490) [nonpub. opn.].) Our state Supreme Court denied defendants petition for review. (Jan. 18, 2006, S139404.) Defendant then filed a petition for writ of certiorari in the United States Supreme Court (docket No. 05‑10477). The United States Supreme Court subsequently decided Cunningham, supra, 549 U.S. ___ [166 L.Ed.2d 856] in January of 2007, rejecting the state Supreme Courts reasoning in Black I. The United States Supreme Court granted defendants petition, vacated the judgment of this court, and remanded the cause to us for further consideration in light of Cunningham. The parties provided supplemental briefing, including a response to questions posed by the court.

We agree with defendants contention and shall remand to the trial court for resentencing consistent with the California Supreme Courts decision in People v. Sandoval (2007)41 Cal.4th 825(Sandoval).

FACTUAL AND PROCEDURAL BACKGROUND

According to the probation report, defendant and his girlfriend, the victim in this case, had been living together for a period of time. On July 20, 2000, a Glenn County Victim Witness representative contacted the police investigator for this case and reported that the victim had been physically abused by defendant the day before and had bruises all over her body.

When the victim subsequently moved out of defendants home, she took some videotapes with her. One of the videotapes had been damaged, so she repaired it. When she played the videotape, she was shocked to discover it contained footage of defendant having sexual intercourse with her while she was sleeping. An investigator who watched the tape reported that it was obvious [that] the victim was unconscious.

The victim showed the investigator a second tape, which showed close-ups of the naked lower half of the victims body and close-ups of her face, and it appeared she was unconscious. The tape then showed defendant masturbating and eventually ejaculating into his hand.

The victim reported that she had trouble sleeping at times, so [defendant] would give her herbal remedies such as [m]elatonin to help her sleep.

Defendant was charged in an amended information with two counts of rape of an unconscious victim ( 261, subd. (a)(4)) and two counts of rapewhile the victim was under the influence of an intoxicant ( 261, subd. (a)(3)). Trial on these charges before a jury resulted in a mistrial. Defendant then entered a plea of guilty pursuant to People v. West (1970) 3 Cal.3d 595 to one count of sexual battery ( 243.4, subd. (a)) in exchange for dismissal of all other charges. The trial court suspended imposition of sentence and placed defendant on probation for four years, including 240 days in county jail.

On April 7, 2004 (all further unspecified calendar references are to that year), the court found defendant had violated probation by failing to report to jail as ordered.

On May 19, the court found defendant had committed an additional probation violation by failing to register as a sex offender. ( 290, subd. (g)(2).)

On July 9, the trial court lifted the sentencing stay and imposed an upper term sentence of four years in state prison for the sexual battery conviction. The judge stated that his decision was based on the aggravating factors mentioned in the original probation report: (1) defendant planned the criminal act; (2) defendant violated a position of trust; and (3) there was substantial harm to the victim. (See Cal. Rules of Court, rule 4.421(a)(1), (8) & (11) [further rule references are to these rules].)^[2] The court stayed execution of that sentence and continued defendant on probation. Defendant appeals from the judgment.

DISCUSSION

Because the trial court imposed the upper term sentence based on facts not found by a jury and proved beyond a reasonable doubt, defendant contends his four-year prison term violated his Sixth Amendment right to a jury trial on facts legally essential to the sentence.

In Cunningham, the United States Supreme Court held that under Californias determinate sentencing law, the middle term is the statutory maximum which a judge may impose solely based on the facts either reflected in the jury verdict or admitted by the defendant. Thus, except for a prior conviction, any fact that increases the penalty for a crime beyond the middle term must be tried to the jury and proved beyond a reasonable doubt. (Cunningham, supra, 549 U.S. at p. ___ [166 L.Ed.2d at p. 869].)

Interpreting Cunningham, the California Supreme Court recently held that imposition of the upper term does not infringe upon the defendants constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendants record of prior convictions. (People v. Black (2007) 41 Cal.4th 799, 816 (Black II).)

The People first claim that defendant forfeited his right to a jury trial on aggravating factors because he did not raise the issue in the trial court. We disagree. Article I, section 16 of the California Constitution provides, A jury may be waived in a criminal cause by the consent of both parties expressed in open court by the defendant and the defendants counsel. A defendants waiver of a jury trial must be expressed in words on the record. (People v. Ernst (1994) 8 Cal.4th 441, 445.) There is no such waiver by defendant on this record. Thus, defendants right to a jury trial on the aggravating factors was not waived or forfeited.

Next, the People contend that by pleading guilty to sexual battery, defendant inherently admitted at least one aggravating circumstance within the meaning of Black II. This claim is without merit. When the trial court sentenced defendant to the upper term for the sexual battery conviction, the court found (1) defendant planned the criminal act; (2) he violated a position of trust; and (3) there was substantial harm to the victim. None of the trio of facts cited by the trial court was expressly admitted by defendant. Accordingly, defendants bare guilty plea to sexual battery did not cure the Cunningham error.

The People lastly assert that any error was harmless beyond a reasonable doubt. Again, we disagree.

In Sandoval, the California Supreme Court stated that errors under Blakely/Cunningham are harmless if the reviewing court finds beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. (Sandoval, supra, 41 Cal.4th at p. 838, quoting Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d. 705, 710].) Accordingly, we must determine whether beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury. (Sandoval, supra, at p. 839.)

As Sandoval explains, [T]o 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. (Sandoval, supra, 41 Cal.4th at p. 840.) That observation applies here.

The trial court stated that its decision was based on three factors: planning, violation of a position of trust, and substantial harm to the victim.

With respect to the first factor, the probation report states that upon moving out of defendants house, the victim discovered a videotape showing defendant having sex with her while she was sleeping. This does not convincingly support the inference that the crime involved planning, sophistication, or professionalism. (Rule 4.421(a)(8).) The report does not disclose any of the circumstances leading up to the crime. Hence, we cannot conclude that a jury would have found this fact true beyond a reasonable doubt.

With respect to the courts finding that defendant violated a position of trust, the probation report states that [t]he victim told the investigator that she (the victim) had trouble sleeping at times, so [defendant] would give her herbal remedies such as [m]elatonin to help her sleep. This passage does not show that defendant violated a position of trust. While the victim stated that defendant occasionally gave her herbal remedies as a sleeping aid, nothing in the report indicates that defendant gave her herbal remedies immediately prior to the incident depicted on the videotape. Thus, we cannot conclude that a jury would have found defendant violated a position of trust in committing the crime.

The final aggravating factor cited by the trial court, substantial harm to the victim, is not listed as an aggravating factor in rule 4.421. It is possible that the trial court intended to refer to rule 4.421(a)(1), that [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. However, even assuming this was so, there is nothing in the probation report that supports such a finding.

The probation report mentions a separate incident, where the victim had been physically abused by her boyfriend, this defendant, and had bruises all over her body. However, this alleged abuse was clearly not connected to the offense to which defendant pleaded guilty, which involved a sexual battery upon his girlfriend while she was in an unconscious state. Accordingly, any reliance on the quoted statement to find great bodily harm was misplaced.

Finally, as Sandoval teaches, we cannot assume the record before us contains all the evidence that might have been presented if the issues, of whether the crime involved planning and sophistication, showed a violation of a position of trust, or involved great bodily harm, had been litigated at trial. (See Sandoval, supra, 41 Cal.4th at p. 839.) The sketchy outline of facts in the probation report provides a questionable basis on which to conclude that the failure to accord defendant a jury trial on the aggravating factors was an insignificant error.

The factual record in the probation report does not persuade us that a jury using the beyond a reasonable doubt standard, would have found at least one of the aggravating factors that the trial court relied upon when imposing the upper term sentence of four years. Accordingly, we find that the Cunningham error was not harmless within the meaning of Sandoval.

Because the error was not harmless, the matter must be remanded for resentencing. Our Supreme Court recently directed that sentencing proceedings to be held in cases that are remanded because the sentence imposed was determined to be erroneous under Cunningham . . . are to be conducted in a manner consistent with the amendments to the [determinate sentencing law] adopted by the Legislature. (Sandoval, supra, 41 Cal.4th at p. 846.) Hence, the trial court shall resentence defendant in accordance with the sentencing laws and rules currently in force that eliminate the presumption of the middle term absent aggravating or mitigating factors. (Id. at pp. 845, 857-858.)

DISPOSITION

The judgment appealed from is reversed and the case is remanded to the trial court with directions to resentence defendant in accordance with Cunningham and Sandoval. In all other respects, the judgment is affirmed.

BUTZ , J.

We concur:

BLEASE , Acting P. J.

HULL, J.

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^[1] Undesignated statutory references are to the Penal Code.

^[2] As amended January 1, 2007, rule 4.421 states in relevant part: Circumstances in aggravation include . . . [:] [] (a) Factors relating to the crime, whether or not charged or chargeable as enhancements, include that: [] (1) The crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness; [] . . . [] (8) The manner in which the crime was carried out indicates planning, sophistication, or professionalism; [and] [] . . . [] (11) The defendant took advantage of a position of trust or confidence to commit the offense.