Opinion
NOT TO BE PUBLISHED
Super. Ct. No. MF028412A
BLEASE, Acting P. J.
Defendant Julius Rafael Lugo appeals from the judgment after a jury found him guilty of spousal rape (Pen. Code, § 262, subd. (a)(1); Cts. 1, 3), false imprisonment (§ 236; Ct. 2), and making criminal threats. (§ 422; Ct. 4.) He admitted the truth of the prior prison term allegation (§ 667.5, subd. (b)) and the trial court sentenced him to an aggregate prison term of 17 years.
All further section references are to the Penal Code unless otherwise specified.
On appeal, he contends Evidence Code section 1109 violates his right to due process, and imposition of the upper term of imprisonment on counts one and three and full term consecutive sentences on both of those counts violated his federal constitutional rights under the Sixth and Fourteenth Amendment rights.
We find no error and shall affirm the judgment.
FACTUAL BACKGROUND
A. Background and Prior Acts of Violence
Defendant and Monique Jones, the victim in this case, began dating in 1998 and a short time later, he began punching or choking her on a regular basis. The first time it happened, they were arguing and he got mad and hit her in the eye. Although the violence escalated, Jones married defendant despite the fact that on their wedding day he hit her in the eye after accusing her of looking at his brother Fernando.
On one occasion in March 2003, after Jones intervened in an argument between defendant and one of their friends, defendant accused Jones of not being on his side. He dragged her upstairs, pulling her by the hair while he repeatedly struck and kicked her as she struggled to crawl up the stairs. When he heard the police coming a few minutes later, he told Jones he was sorry and said “please don’t tell them anything, I’ll kill you if you tell them anything.” Defendant was arrested and convicted of battery.
Shortly thereafter, defendant was convicted of felony car theft and sentenced to prison for 16 months. During that time, Jones moved to San Jose, filed for divorce, and served defendant with the papers while he was in prison.
B. The Charged Offenses
In November 2004, the day defendant was released from prison, he telephoned Jones and asked her to pick him up from prison. She consented in order to appease him but did not appear. He called her the following day for money and continued calling her, telling her he would give her the divorce papers if she would pick him up and take him to his uncle’s house. She finally agreed to meet him so she could obtain the signed papers and remove his name from their joint bank account.
They met in Stockton on the afternoon of November 6, 2004. When Jones asked defendant about the divorce papers, he told her he had thrown them away but he wanted to talk to her. She agreed and he took a seat in her car and attempted to persuade her to stay in the marriage. After about 20 or 30 minutes, he told her that if she gave him a ride to his uncle’s house in Manteca, he would leave her alone.
Again Jones agreed, but when they arrived at defendant’s uncle’s residence, defendant told her his uncle was not home and directed her to park the car a short distance away from the residence. He refused to get out of the car and resumed his plea to stay in the marriage. They spent the night in the car rehashing the same issue. Although Jones attempted to get out of the car several times, defendant prevented her from leaving. On one occasion, he threatened her with his fist and forced her back into the car, telling her he would kill her if she did not cooperate.
At some point during the night, they went to a Wendy’s to buy food. On the way there, defendant drove recklessly and threatened to crash the car and kill them both. When he pulled into the Wendy’s parking lot, he noticed two police vehicles in the lot and drove up to the drive-thru window where he ordered food for himself.
After purchasing the food, he drove back to the same area near his uncle’s home and resumed arguing with Jones. He ignored her complaint that she was very tired and just wanted to go home. A short time later, when he found her cell phone, which she had turned off, he became angry and accused her of having something to hide. She denied the accusation and accused him of using drugs. He became enraged and choked her until she urinated in her pants and began to lose consciousness.
At some later point during Jones’ 14-hour ordeal, defendant began removing her jeans. He ignored her demand to stop, removed her pants, and got on top of her. When she failed to cooperate, he struck her in the face. Although she repeatedly asked him to stop, he pinned her arms down, put his penis in her vagina and ultimately ejaculated. Afterwards, they both fell asleep.
When Jones awoke, it was still dark. Defendant awoke minutes later when he heard her moving around and began another argument, which led to a second sexual assault. Jones, a diabetic, had not eaten since the previous morning. She was exhausted and weak and did not have any more energy to fight with him. As before, defendant began removing her pants, she resisted, and told him she did not want to do this. However, when he raised his fist, she fell back and told him to “just do whatever” and he had sexual intercourse with her.
Afterwards, Jones told defendant she just wanted to go home. When he refused to leave, she agreed to take him with her and drove from Manteca to Gilroy at 90 miles per hour, hoping a law enforcement officer would stop her so she could get help. When help did not appear, she stopped at a McDonald’s in Gilroy and told appellant to stay there while she went home to clean up and change out of her wet clothing. He agreed and as she drove out of the parking lot, she called 911 and then drove to a California Highway Patrol office where she reported the crime.
C. Defense
Defendant testified in his own behalf admitting the basic events outlined by Jones but testified that their dispute was about his need for money, that she had changed her mind about the divorce and told him to rip up the papers and that they twice engaged in consensual sexual intercourse in her car, although according to defendant, the first sex act took place before they went to Wendy’s. He denied ever putting his hands on her neck.
DISCUSSION
I.
Evidence Code Section 1109Defendant contends Evidence Code section 1109 violates his federal right to due process. Respondent contends that in People v. Falsetta (1999) 21 Cal.4th 903 (Falsetta), the California Supreme Court rejected a similar challenge to Evidence Code section 1108. He further contends defendant’s claim fails because he has made no showing of prejudice. We agree with respondent on both points.
Evidence Code section 1109 states in pertinent part that “in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant’s commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352.”
In Falsetta, supra, 21 Cal.4th 903, the California Supreme Court rejected the same due process challenge to Evidence Code section 1108. That section authorizes the admission of evidence of the defendant’s prior sexual offense in a criminal action when he or she is charged with a sexual offense subject to exclusion under Evidence Code section 352. (Id. at p. 907.) In upholding the validity of the statute, the court found that Evidence Code section 352 provides adequate safeguards to protect a criminal defendant’s due process rights. (Id. at p. 917.)
The same reasoning has been applied repeatedly to uphold Evidence Code section 1109 against due process challenges. (See People v. Price (2004) 120 Cal.App.4th 224, 240; People v. Jennings (2000) 81 Cal.App.4th 1301, 1310-1311; People v. Johnson (2000) 77 Cal.App.4th 410, 417.) Moreover, as the court in Falsetta observed: “[t]he admission of relevant evidence will not offend due process unless the evidence is so prejudicial as to render the defendant's trial fundamentally unfair.” (21 Cal.4th at p. 913; see also Estelle v. McGuire (1991) 502 U.S. 62, 70 [116 L.Ed.2d 385, 397].)
Because defendant has raised only a generalized claim, he has failed to make any showing of prejudice. We therefore reject his constitutional challenge.
II.
Imposition of the Upper Term of Imprisonment
Defendant contends that by imposing the upper term of imprisonment, the trial court violated the rule stated in Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi), Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely), and Cunningham v. California (2007) 549 U.S. __ [166 L.Ed.2d 856] (Cunningham). Respondent contends defendant forfeited this claim, the trial court’s findings fell under the recidivism exception, and any error was harmless beyond a reasonable doubt.
We reject respondent’s contention that defendant forfeited this claim by failing to raise it in the trial court. A defendant is not required to make a futile objection in the trial court. (People v. Welch (1993) 5 Cal.4th 228, 237–238.) Here sentence was imposed on July 21, 2006, which was after the decision in People v. Black (2005) 35 Cal.4th 1238 (Black I)) and before the decision in Cunningham. Because Black I was binding on the trial court until it was overruled by the high court (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), any objection by defendant on the grounds raised on appeal would have been futile. (People v. Sandoval (2007) 41 Cal.4th 825, 837, fn. 4.) We shall therefore address the merits of defendant’s claim.
We agree with respondent that the trial court properly imposed the upper term without running afoul of Apprendi and Blakely. (People v. Black (2007) 41 Cal.4th 799 (Black II).) We find no error.
A. The Trial Court’s Sentence and Statement of Reasons
The trial court imposed the upper term of eight years on count one. In so doing, the court stated with respect to count one that “these crimes were committed while Mr. Lugo was on parole . . . [and] [o]n this basis alone, the Court would impose the aggravated term.”
As to count three, the court selected the upper term finding “this is a crime that involved great violence and threat of body harm and a high degree of cruelty. I find that Ms. Jones was particularly vulnerable. I think the evidence is overwhelming in that regard. The manner in which the crime was carried out showed planning and sophistication. You took advantage of a position of trust that you had with her . . . [¶] As to you personally, you engaged in violent conduct and that shows to me, without a shadow of a doubt, that you are a serious danger to society. Your prior conviction as an adult and these new crimes, not to mention all the other crimes I’m not even bringing up now, but they are all in the probation report, show a clear pattern of . . . increasing seriousness of the crimes. [¶] Additionally, you’ve already served a prior prison term and you [were] on parole when these crimes were committed.”
The court further found “there were no circumstances in mitigation, not one. So despite the fact that [California Rules of Court, rule] 4.426(a)(2) requires full consecutive terms of eight years, even without that, the circumstances in aggravation outweigh the circumstances in mitigation. And even without that, the fact that you were on parole when these crimes were committed is grounds enough for what the Court is doing here today.”
B. Analysis
It is now well established 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. 489 [147 L.Ed.2d at p. 455], italics added.) The “statutory maximum” is the maximum sentence the trial court may impose based solely on the facts reflected in the jury verdict or admitted by the defendant. (Blakely, supra, 542 U.S. at p. 303 [159 L.Ed.2d at p. 413].)
In selecting the term of imprisonment, California’s determinate sentencing law (DSL) requires the trial court to “order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime.” (§ 1170, subd. (b).)
In Black I, supra, 35 Cal.4th 1238, the California Supreme Court concluded that when imposing sentence under the DSL, “the upper term is the ‘statutory maximum’ and a trial court's imposition of an upper term sentence does not violate a defendant's right to a jury trial” under the principles set forth in Apprendi and Blakely. (Id. at p. 1254.)
That holding was recently rejected by the United States Supreme Court in Cunningham, supra, 549 U.S. at p. ___ [166 L.Ed.2d at p. 864], where the high court found California’s procedure for selecting the upper term of imprisonment violates the defendant’s Sixth and Fourteenth Amendment right to a jury trial. Reasoning that the upper term may be imposed only when the trial judge finds an aggravating circumstance (See § 1170, subd. (b)), the high court concluded that the middle term, not the upper term, is the relevant statutory maximum under Apprendi and Blakely. (Cunningham, supra, 549 U.S. at pp. ___ [166 L.Ed.2d at pp. 873, 876].)
In response to Cunningham, the California Legislature recently amended the DSL by urgency legislation effective March 30, 2007. (Stats. 2007, ch. 3, § 2.) Unless otherwise noted, our references to section 1170 are to the statute as it read prior to those amendments.
On remand from the United States Supreme Court, the California Supreme Court held in Black II, supra, 41 Cal.4th at page 813 that “if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not ‘legally entitled’ to the middle term sentence, and the upper term sentence is the ‘statutory maximum.’” (Fn. omitted.) The court reasoned that “the constitutional requirement of a jury trial and proof beyond a reasonable doubt applies only to a fact that is ‘legally essential to the punishment’ [citation] . . . . ‘The Sixth Amendment question . . . is whether the law forbids a judge to increase defendant’s sentence unless the judge finds facts that the jury did not find [and the offender did not concede.’ [Citation.] For this reason . . . as long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional factfinding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to jury trial.” (Id. at p. 812.)
Applying the reasoning in Black II, a defendant is eligible for an upper term sentenced when the record shows the existence of one or more prior convictions, a fact that is exempt from the rule in Apprendi. (Apprendi, supra, 530 U.S. at p. 490 [147 L.Ed.2d at p. 455]; see Almendarez-Torres v. United States (1998) 523 U.S. 224 [140 L.Ed.2d 350].) Moreover, the prior conviction exception is not limited to the fact of a prior conviction. It extends broadly to matters of recidivism. (People v. Thomas (2001) 91 Cal.App.4th 212, 223.)
Among the nine factors in aggravation found by the trial court are three factors relating to recidivism, any one of which made defendant eligible for the upper term. As a result, the trial court could properly find and consider the remaining factors in aggravation without violating Apprendi and Blakely. (Black II, supra, 41 Cal.4th at p. 813.) Additionally, the trial court expressly found defendant was on parole when he committed the instant offenses, stating that factor alone justified the upper term on both offenses.
Accordingly, the trial court properly imposed the upper term of imprisonment without violating defendant’s Sixth and Fourteenth Amendment rights to a jury trial and due process.
III.
Full Term Consecutive Sentences
Defendant contends imposition of full term consecutive sentences on counts one and three under section 667.6, subdivision (d) violated Apprendi, Blakely, and Cunningham because that sentencing choice must be based on the additional judicial finding that the two offenses were committed on separate occasions. Respondent contends defendant forfeited this claim and that it is without merit because Black I found Blakely inapplicable to the decision to impose consecutive sentences.
We agree with respondent that imposition of a consecutive sentence under section 667.7, subdivision (d) does not implicate Apprendi and Blakely.
For the same reasons stated in footnote 2, we reject respondent’s assertion that defendant forfeited this claim.
After imposing sentence on count one and designating it as the principal term (§ 1170.1, subd. (a)), the trial court found the two rapes were committed on separate occasions because defendant had a reasonable opportunity to reflect upon his actions between the first and the second rape and imposed a full term consecutive sentences on count three under section 667.6, subdivision (d).)
Section 667.6, subdivision (d) provides in pertinent part that “[a] full, separate, and consecutive term shall be imposed for each violation” of certain sexual offenses including section 262 “if the crimes involve separate victims or involve the same victim on separate occasions.” The subdivision further provides that 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.” (Italics added.)
In Black I, supra, 35 Cal.4th 1238, the California Supreme Court rejected the claim that imposition of consecutive sentences pursuant to section 669 violates Apprendi and its progeny. The court reasoned that the underlying rationale of those cases is inapplicable to the question whether the sentences on two or more offenses should be served consecutively or concurrently. Because a sentence enhancement is treated as the functional equivalent of a greater crime, the factual predicate of the enhancement must be treated as an element of the greater offense and is therefore subject to the defendant’s right to a jury trial on all elements. (Id. at pp. 1262-1263.) “No such danger is created by a statute that permits judges to decide whether to impose consecutive sentences without jury factfinding. The jury’s verdict finding the defendant guilty of two or more crimes authorizes the statutory maximum sentence for each offense.” (Ibid.)
In Black II, the court concluded that Cunningham did not undermine its holding in Black I and affirmed that holding that imposition of consecutive terms under section 669 does not implicate a defendant’s Sixth Amendment rights. (41 Cal.4th at pp. 821, 823.)
This same conclusion applies equally to consecutive sentences imposed under section 667.6 because, like consecutive sentences under section 669, the factual predicate that makes a defendant eligible for full term consecutive sentences under section 667.6 is found by the jury. Subdivision (c) of section 667.6 grants the trial court discretion to impose a full term consecutive sentence in lieu of the term provided in section 11701.1 for “each violation of” a predicate offense “if the crimes involve the same victim on the same occasion.” (§ 667.6, subd. (c).) By contrast, subdivision (d) of section 667.6 makes a full term consecutive sentence mandatory “for each violation of an offense specified in subdivision (e) if the crimes involve . . . the same victim on separate occasions.”
As the court in People v. Groves (2003) 107 Cal.App.4th 1227, 1230-1231 found, imposition of a full term consecutive sentence under section 667.6, subdivision (d) does not violate Apprendi/Blakely. Because imposition of such a sentence is discretionary under subdivision (c) of the section based solely upon the jury’s verdict finding a defendant guilty of two predicate offenses against the same victim, mandatory imposition of the maximum possible sentence does not constitute an increase in the maximum possible sentence. (Id. at pp. 1230-1231.)
Groves was approved in Black I, supra, 35 Cal.4th at page 1263, footnote 19.
Since defendant was convicted of committing two predicate offenses against Jones, he was eligible for a full term consecutive sentence under the more stringent provisions of section 667.6. We therefore hold that imposition of the mandatory full term consecutive sentence on count three (§ 667.6, subd. (d)) did not violate defendant’s constitutional rights to due process and a jury trial.
DISPOSITION
The judgment is affirmed.
We concur: NICHOLSON, J., HULL, J.