Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Merced County Super. Ct. No. MF45716. John D. Kirihara, Judge.
Marcia R. Clark, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Lloyd G. Carter, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Kane, J.
Defendant Jose Santos Cabrera was convicted by jury trial of attempted aggravated sexual assault of a child (Pen. Code, §§ 269, subd. (a)(1), 664; a lesser included offense of count 1), false imprisonment (§ 236; count 2), and lewd or lascivious acts on a child less than 14 years of age (§ 288, subd. (a); count 3). The trial court sentenced defendant to the upper term on count 1 (nine years), one-third of the middle term on count 2 (eight months), and one-third of the middle term on count 3 (two years), for a total sentence of 11 years eight months.
All references are to the Penal Code unless otherwise stated.
On appeal, defendant contends that the trial court (1) violated section 654 by imposing consecutive sentences, (2) committed Cunningham error by imposing the upper term on his attempted sexual assault conviction in the absence of any specific jury finding on aggravating factors, and (3) violated the ex post facto clause of the federal Constitution by sentencing him under Penal Code section 1170, subdivision (b), as amended by Senate Bill No. 40 (SB 40) (Stats. 2007, ch. 3, § 2). We will affirm.
Cunningham v. California (2007) 549 U.S. 270 (Cunningham).
FACTUAL SUMMARY
Defendant lived in the same house as the nine-year-old victim (victim) and her family. Defendant is victim’s uncle. The household included defendant, victim, victim’s parents, victim’s brother, victim’s aunt (defendant’s sister), victim’s cousin, and “some people [who lived in the garage] for a few days.”
At trial, the jury heard a taped interview of victim taken on the night of the incident. During that interview, victim said that she had gone to visit defendant in his bedroom so that the two could play dominoes. Victim stated that when she entered defendant’s room, he locked the door behind her, and instructed her to “[g]o on the bed.”
At the interview, the following dialogue ensued:
“[INTERVIEWER]: … Okay, when he told you to get on the bed, what did you do?
“[VICTIM]: I told him no. I only came to use dominoes.
“[INTERVIEWER]: … And then what happened?
“[VICTIM]: He started to touch me.
“[INTERVIEWER]: Okay. Were you standing or what were you doing?
“[VICTIM]: Standing.
“[INTERVIEWER]: Mm-hmm. When he touched you was it above or under your clothes?
“[VICTIM]: Above.
“[INTERVIEWER]: Above your clothes. Then what happened?
“[VICTIM]: He ah, he wanted to put his thingy in my (unintelligible).
“[INTERVIEWER]: He wanted to put his thingy in where?
“[VICTIM]: In mine. [¶] … [¶]
“[INTERVIEWER]: Okay. All right. So he wanted to put that inside of yours? Tell me how that happened.
“[VICTIM]: Like he pushed me on the bed. He—he was like—I don’t remember. I don’t remember.
“[INTERVIEWER]: Okay. You said he pushed you on the bed. And did you stay on the bed? Okay. And then what happened after he pushed you on the bed?
“[VICTIM]: I don’t remember.
“[INTERVIEWER]: Okay, how did you feel?
“[VICTIM]: Bad.
“[INTERVIEWER]: You felt bad. Okay. Did you hear anybody else in the rest of the house?
“[VICTIM]: I heard my cousin calling me and my dad.
“[INTERVIEWER]: All right. What happened when your dad called you?
“[VICTIM]: I tried to open the door but my uncle pulled me.
“[INTERVIEWER]: Mm-hmm. Where did he pull you?
“[VICTIM]: From my arm.
“[INTERVIEWER]: From your arm. And he pulled you where?
“[VICTIM]: To the bed. [¶] … [¶]
“[INTERVIEWER]: … So you said that he was trying to put his penis into you? Did he?
“[VICTIM]: He did.
“[INTERVIEWER]: He did? Okay. You said that you had a skirt on. Okay. Was that—where was your skirt?
“[VICTIM]: I was wearing it.
“[INTERVIEWER]: You were wearing it. And was it—it so he had—was it still on you? How did it come off of you?
“[VICTIM]: He pulled it down.
“[INTERVIEWER]: Okay. Um, did you have underwear on under your skirt? And what happened to your underwear?
“[VICTIM]: He took it off.
“[INTERVIEWER]: Okay. He took that off too. Okay. Did you—were you—you said that you were on the bed. What were you doing on the bed?
“[VICTIM]: Actually I was on the floor.
“[INTERVIEWER]: Okay. You were on the floor. What were you doing on the floor?
“[VICTIM]: Like I was sort of hitting him.
“[INTERVIEWER]: You were hitting him. What was he doing?
“[VICTIM]: Trying to put his (pena) in me.
“[INTERVIEWER]: What was he doing when you were hitting him?
“[VICTIM]: He was holding my hands.
“[INTERVIEWER]: Where were your hands?
“[VICTIM]: Together.
“[INTERVIEWER]: Uh-huh. Were they on top of you or were they above you? Where were your hands?
“[VICTIM]: On top.
“[INTERVIEWER]: They were on top of you and he was holding you down with what?
“[VICTIM]: With his hand.
“[INTERVIEWER]: With his hand, okay. And when he was holding down your hands, what was he doing with his other hand?
“[VICTIM]: He was pulling down my undies.
“[INTERVIEWER]: Okay. Then what did he do when he got your undies down?
“[VICTIM]: He put his thing in.
“[INTERVIEWER]: Okay. When you were on the floor, were you—how were you facing? How were you laying on the floor?
“[VICTIM]: Frontward.
“[INTERVIEWER]: Frontward, so what does that mean, like what were you looking at? Were you looking at the ceiling or were you looking at the floor?
“[VICTIM]: At the ceiling.
“[INTERVIEWER]: You were looking at the ceiling, okay. And where was your uncle when he was doing that?
“[VICTIM]: On top.
“[INTERVIEWER]: And he was on top. And he was holding you down with one hand, your hands down? Okay, was he saying anything to you at all? Did he say anything to you the whole time? Okay. When you’re when you heard your dad calling you, did you try to yell out? And what happened?
“[VICTIM]: He said no.
“[INTERVIEWER]: Who said no?
“[VICTIM]: My uncle.
“[INTERVIEWER]: Okay. And then what happened?
“[VICTIM]: Like um, my dad tried to open the door but he couldn’t because it was locked.
“[INTERVIEWER]: Mm-hmm.
“[VICTIM]: So I was holding with my hand. He only had one of my hands and I tried to open the door and I couldn’t.
“[INTERVIEWER]: Mm-hmm. So you were pretty close to the door? All right. And so how did you guys stay so still and quiet?
“[VICTIM]: He covered my mouth.
“[INTERVIEWER]: What did he cover your mouth with?
“[VICTIM]: A sock.
“[INTERVIEWER]: A sock? Okay. Did he just put it on top of your face or what did he do with it?
“[VICTIM]: Inside it.
“[INTERVIEWER]: He put the sock inside of your mouth?
“[VICTIM]: Mm-hmm.
“[INTERVIEWER]: Okay. So he wanted to make sure huh, that you—you couldn’t yell out so that’s what he did to you. So he’s got your hand down and he’s covered your mouth in a sock, or put a sock into your mouth. Okay. How did you feel then?
“[VICTIM]: Bad.
“[INTERVIEWER]: Bad? What were you thinking? Do you remember? Okay. All right. Do you remember then what happened, after your dad went away?
“[VICTIM]: The next time like my dad was in the kitchen. He heard a click and my uncle unlocked the door.
“[INTERVIEWER]: Uh-huh.
“[VICTIM]: And he put my clothes back on.
“[INTERVIEWER]: Okay. And did he say anything to you?
“[VICTIM]: Don’t tell this to your dad.
“[INTERVIEWER]: What would happen if [you] told your dad?
“[VICTIM]: That he would—he only told me not to tell my dad.
“[INTERVIEWER]: All right. So your dad has left the door, and did your uncle stay on top of you or did he get off of you or did he—what happened?
“[VICTIM]: Got off of me.
“[INTERVIEWER]: Uh-huh. Okay. And then what did he do?
“[VICTIM]: He started watching TV.
“[INTERVIEWER]: Mm-hmm. Did he put—how did you get your clothes back on?
“[VICTIM]: He put it on.
“[INTERVIEWER]: And then what did you do once you had your clothes on again?
“[VICTIM]: I went out the door to go tell my dad.
“[INTERVIEWER]: Uh-huh. Okay. Did your uncle do anything or say anything or give you anything or?
“[INTERVIEWER]: He gave me candies.”
When asked by the interviewer who was at the house on the day of the incident, victim responded, “My aunt, my cousin, my brother, my dad, my mom got a few minutes there.”
At trial, victim testified that the incident had taken place on the floor. Victim stated that she was unable to call out to her father for help because defendant had placed a sock in her mouth. However, upon further examination at trial, victim offered a contradictory account stating that she failed to answer her father’s knock at the door because she was winning in a game of dominoes with defendant and did not want to be interrupted. In this contradictory account, victim said that her previous statements implicating defendant for the sexual conduct were untrue.
At trial, victim’s father gave his account of searching the house for victim at the time of the incident and being unable to find her. Victim’s father testified that he found defendant’s door locked, knocked on it once, left to search the front and back yard, learned that defendant’s sister had also knocked on his locked door to no answer, and returned to knock on the door once more, again to no answer. Victim’s father then began to search the other rooms of the house, only to soon after return to defendant’s door to knock again. This time the door opened and victim walked out. Victim’s father was unable to recall precisely the duration of his search, but his testimony suggested that it lasted at least ten minutes and as long as 30 minutes. He testified that he heard defendant’s door being unlocked approximately ten minutes after his final knock. Victim’s father noticed “[victim] was touching her clothes and it seemed like she was raising her skirt.” Victim immediately told her father what had happened. She told him her mouth had been covered and “[t]hat he had put a sock in her mouth.” She described to him defendant’s penis. “She said what size it was and how thick it was and that he was putting saliva on it.” He also testified that she told him that “[defendant] was holding her hands.”
DISCUSSION
I. Section 654
Defendant contends that section 654 precludes punishment on the false imprisonment conviction (count 2). We disagree.
Section 654, subdivision (a), provides in relevant part 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.”
“Section 654 does not preclude multiple convictions but only multiple punishments for a single act or indivisible course of conduct. [Citation.]” (People v. Miller (1977) 18 Cal.3d 873, 885, overruled on another ground in People v. Oates (2004) 32 Cal.4th 1048, 1056.) “‘“Whether a course of criminal conduct is divisible … depends on the intent and objective of the actor.” [Citations.] “[I]f all 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. Spirlin (2000) 81 Cal.App.4th 119, 129.)
“If, however, the defendant had multiple or simultaneous objectives, independent of and not merely incidental to each other, the defendant may be punished for each violation committed in pursuit of each objective even though the violations share common acts or were parts of an otherwise indivisible course of conduct. [Citation.]” (People v. Cleveland (2001) 87 Cal.App.4th 263, 267-268.)
Whether section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination. (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312.) Its findings will not be reversed on appeal if there is any substantial evidence to support them. (Ibid.) We review the trial court’s determination in the light most favorable to the judgment and presume the existence of every fact the trial court could reasonably deduce from the evidence. (Id. at pp. 1312-1313.)
Though the trial court did not provide specific reasoning for its decision not to stay the sentence for the false imprisonment, we review the record to determine whether there exists substantial evidence in support of the trial court’s finding of multiple criminal intents. (See People v. Hutchins, supra, 90 Cal.App.4th at pp. 1312-1313.) Furthermore, “[w]e review judicial action and not judicial reasoning.” (People v. Franklin (2003) 105 Cal.App.4th 532, 535.)
In this case, the People contend that when victim’s father knocked at defendant’s bedroom door, defendant’s criminal objective changed from an intent to sexually assault victim to an intent to falsely imprison victim. The People argue that at that point, defendant’s criminal intent was to confine victim to prevent her from reporting the sexual conduct to her father. This argument relies upon the inference that when defendant heard victim’s father knocking at his bedroom door, he then took additional steps—such as putting a sock in victim’s mouth, holding her hands and pulling her arm—to prevent her from calling out to her father. These steps, the People assert, were beyond those necessary to achieve defendant’s sexual purpose. But we believe the evidence in support of this inference is not substantial because it is unclear whether defendant took these steps to prevent victim from responding to her father’s knock or whether these steps were part of the continuing confinement to facilitate the ongoing sexual conduct.
However, we conclude there is substantial evidence to support the finding that defendant harbored a separate criminal intent a few minutes later when he kept victim in the locked room after he had completed the sexual conduct. During that part of the confinement, defendant dressed victim and tried to convince her not to tell her father what had happened. Victim said that defendant “[g]ot off of [her]” after her father knocked. Defendant then “put [her] clothes back on[,]” said to her, “Don’t tell this to your dad[,]” gave her candies, and unlocked the door, at which time victim “went out the door to go tell [her] dad.” Victim’s father testified that the time span between his last knock on defendant’s door and when the door was unlocked from within was approximately ten minutes. During that period of time, defendant’s criminal objective was no longer to sexually assault victim, but rather to falsely imprison her to cover up evidence of his crime and prevent her from revealing what he had done. Defendant did so by dressing victim as she was when she entered the room, specifically instructing her not to report the incident to her father, and giving her candy to dissuade her from reporting the sexual conduct. We conclude this was a separate and distinct criminal intent justifying separate punishment for the false imprisonment. (People v. Saffle (1992) 4 Cal.App.4th 434, 436-437 [false imprisonment separately punishable from rape where defendant raped victim at knifepoint, then forbade her at knifepoint from answering a knock at the door that he believed to be the police]; People v. Magana (1991) 230 Cal.App.3d 1117, 1123-1124 [false imprisonment separately punishable from rape where defendant tied victim to tree in order to rape her, and later untied her to complete rape because he was unable to remove her clothing while she was tied to the tree].) The trial court did not err by not staying the sentence on the false imprisonment.
II. Cunningham Error
Defendant argues that the trial court’s imposition of the upper term on his attempted sexual assault conviction deprived him of his constitutional right to a jury trial under Cunningham, supra, 549 U.S. 270. We disagree.
At the sentencing hearing, the trial court sentenced defendant to the upper term of nine years due to aggravating circumstances. The trial court relied primarily on three aggravating circumstances in imposing the upper term on defendant’s attempted sexual assault conviction: that defendant (1) threatened to inflict bodily harm on victim, (2) took advantage of a position of trust and confidence to commit the offense, and (3) exploited the particular vulnerability of victim.
In Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), the United States Supreme Court held: “Other 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.) In Blakely v. Washington (2004) 542 U.S. 296 (Blakely), the court explained that the relevant “‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” (Id. at p. 303.) Finally, in Cunningham, the court held that California’s determinate sentencing law, which authorizes a judge to find the facts permitting an upper term sentence by a preponderance of the evidence, violates a defendant’s right to trial by jury. (Cunningham, supra, 549 U.S. at p. 307.)
Cunningham vacated the judgment in People v. Black (2005) 35 Cal.4th 1238 (Black I), which held that California’s determinate sentencing law did not violate a defendant’s right to trial by jury (id. at p. 1263), and remanded the case to the California Supreme Court for further consideration in light of Cunningham. In People v. Black (2007) 41 Cal.4th 799 (Black II), the court held that the existence of at least one aggravating circumstance established by means sufficient to satisfy the governing Sixth Amendment authorities “renders a defendant eligible for the upper term sentence” under the determinative sentencing law. (Black II, supra, at p. 812.) In a companion case filed on the same day as Black II, People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval), the court further held that if no aggravating factors have been found in accordance with Sixth Amendment principles (that is, found to be true by a jury beyond a reasonable doubt, admitted by the defendant or included within the recidivism exception recognition in Cunningham and Blakely), the “denial of the right to a jury trial on aggravating circumstances is reviewed under the harmless error standard set forth in Chapman v. California (1967) 386 U.S. 18.…” (Sandoval, supra, at p. 838.) “[I]f a reviewing court concludes, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury, the Sixth Amendment error properly may be found harmless.” (Id. at p. 839.)
Assuming that the trial court here committed Cunningham error, we conclude that any error was harmless beyond a reasonable doubt because “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, 41 Cal.4th at p. 839.) It is undisputed that victim was defendant’s niece and she was only nine years of age at the time of the crime. Additionally, the victim regularly visited defendant to socialize and play games, which further established a relationship of trust. We have no doubt the jury would have found that defendant took advantage of a position of trust and exploited a particularly vulnerable victim.
II. SB 40 and Sandoval
Defendant contends the trial court violated the ex post facto clause of the Constitution by sentencing him to the upper term of six years under section 1170, subdivision (b), as amended by SB 40, because he committed his offense on September 21, 2006, before SB 40 became effective. This issue was resolved by Sandoval, which held that retroactive application of SB 40 does not violate the proscription against ex post facto laws. (Sandoval, supra, 41 Cal.4th at p. 845.) Defendant challenges the legitimacy of the holding and rationale of Sandoval, but as he recognizes, we are bound by California Supreme Court precedent. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: Vartabedian, Acting P.J., Hill, J.