Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Eleanor J. Hunter, Judge. Los Angeles County Super. Ct. No. TA082781
Allison H. Ting, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and Lawrence M. Daniels, Deputy Attorneys General, for Plaintiff and Respondent.
KITCHING, J.
Connie Maria Orr appeals from the judgment entered following her conviction by jury of corporal injury upon a cohabitant (Pen. Code, § 273.5, subd. (a)) with infliction of great bodily injury under circumstances involving domestic violence (Pen. Code, § 12022.7, subd. (e)) with admissions that she suffered two prior felony convictions (Pen. Code, § 667, subd. (d)), two prior serious felony convictions (Pen. Code, § 667, subd. (a)), and a prior felony conviction for which she served a separate prison term (Pen. Code, § 667.5, subd. (b)). The court sentenced her to prison for 16 years plus 25 years to life. Appellant claims the trial court committed sentencing error. We affirm the judgment.
FACTUAL SUMMARY
Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence, the sufficiency of which is undisputed, established that on December 26, 2005, appellant was cohabiting with J.D. Farris, appellant’s boyfriend, in Los Angeles. Appellant poured a pot of hot water on Farris while he slept, causing him great bodily injury, and tried to hit him with the pot.
CONTENTION
Appellant claims the trial court committed Cunningham error when it imposed the upper term on the Penal Code section 12022.7, subdivision (e) enhancement.
Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856, 127 S.Ct. 856] (Cunningham).
DISCUSSION
Imposition of the Upper Term for the Penal Code Section 12022.7, Subdivision (e) Enhancement Did Not Constitute Cunningham Error.
1. Pertinent Facts.
The information alleged the present offense and a Penal Code section 12022.7, subdivision (e) allegation. The information also alleged two strikes and two Penal Code section 667, subdivision (a) enhancements, based on a 1992 voluntary manslaughter conviction (case No. A989062) and a 1992 mayhem conviction (case No. BA052890). The information further alleged three Penal Code section 667.5, subdivision (b) enhancements based on the voluntary manslaughter and mayhem convictions, and based on a 1998 conviction for unauthorized taking of a vehicle (case No. YA036412).
That subdivision provides in pertinent part, “(e) Any person who personally inflicts great bodily injury under circumstances involving domestic violence in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three, four, or five years.”
The probation report prepared for a 2006 hearing reflects that appellant, who was born in 1960, suffered the above prior convictions. The report also reflects that, in 2001, she suffered a misdemeanor conviction for assault with a deadly weapon or by force likely to produce great bodily injury (case No. MA022395).
At sentencing in December 2006, appellant admitted that she suffered the prior convictions for voluntary manslaughter, mayhem, and unauthorized taking of a vehicle. The court indicated it had reviewed the probation report. The court also indicated that appellant had faxed to the court a motion to dismiss the strikes pursuant to Penal Code section 1385, and the court had reviewed the motion.
During discussions concerning the motion to dismiss the strikes, the court reviewed appellant’s criminal history and noted the following. In 1997, appellant apparently poured hot grease on a sleeping person’s face. The disposition of that matter was unknown. Appellant suffered the above mentioned voluntary manslaughter and mayhem convictions. In 2000, she was acquitted of killing a person by beating them with a baseball bat. Appellant suffered the prior conviction for unauthorized taking of a vehicle, and the matter constituted a parole violation. A person testified at the trial in the present case that in 2001, appellant struck the person on the head with an object while he was sleeping, then tried to stab him. In 2004, an elderly man was beaten to death with a hammer. Appellant was charged with the crime but the trial court in that matter granted a Penal Code section 995 motion. Appellant was returned to prison on a parole violation. The present offense occurred in 2005. Based in part on appellant’s recidivism as reflected in her prior convictions, the trial court denied her motion to dismiss the strikes.
This apparently pertained to appellant’s 2001 misdemeanor conviction for aggravated assault (case No. MA022395).
The court sentenced appellant to prison for 16 years plus 25 years to life, which included a consecutive upper term of 5 years for the Penal Code section 12022.7, subdivision (e) enhancement. As to that enhancement, the court stated, “Also, the court is going to elect the upper term of the great bodily injury. I think that her actions were significant enough. The burns were significant enough, the injuries, the callousness in which the act took place, the vulnerability of the victim, he was asleep, scalding water was placed on him, and then she hit him on the head with a pan or attempted to hit him on the head. I think clearly justifies the high term of the great bodily injury.”
2. Analysis.
Appellant claims imposition of the upper term on the Penal Code section 12022.7, subdivision (e) enhancement violated Cunningham v. California, supra, 549 U.S. ___ [166 L.Ed.2d 856, 127 S.Ct. 856,]. We disagree.
a. No Cunningham Error Occurred.
(1) Applicable Law.
“In Cunningham [v. California, supra, 549 U.S. ___ [166 L.Ed.2d 856, 127 S.Ct. 856,]], the United States Supreme Court, applying principles established in its earlier decisions in Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [147 L.Ed.2d 435, 120 S.Ct. 2348] (Apprendi) and Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403, 124 S.Ct. 2531] (Blakely), concluded that California’s [determinate sentence law] does not comply with a defendant’s right to a jury trial. ‘[U]nder the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence.’ (Cunningham, supra, 549 U.S. at pp. ___-___ [127 S.Ct. at pp. 863-864].)” (People v. Sandoval (2007) 41 Cal.4th 825, 835 (Sandoval).)
The Sandoval court later observed, “Apprendi stated, ‘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.’ (Apprendi, supra, 530 U.S. at p. 490, italics added.)” (Sandoval, supra, 41 Cal.4th at p. 835.)
In Blakely, the high court concluded that “‘the “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.’ ([Blakely, supra, 542 U.S.] at p. 303.)” (Sandoval, supra, 41 Cal.4th p. 836.)
In People v. Black (2007) 41 Cal.4th 799 (Black), our Supreme Court stated: “[W]e agree with the Attorney General’s contention that 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.) The court also stated, “so long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury.” (Id. at p. 813.)
Black also stated, “imposition of the upper term does not infringe upon the defendant’s 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 defendant’s record of prior convictions.” (Black, supra, 41 Cal.4th at p. 816.)
In Black, our Supreme Court rejected the defendant’s claim that the trial court committed Cunningham error when imposing an upper term for a sex offense. (Black, supra, 41 Cal.4th at pp. 805-807.) We note that in Black, the trial court, in a sentencing context, actually considered the defendant’s recidivism, and Black presumed the trial court had considered the defendant’s probation report, which referred to his recidivism. We also note that Black stated that selection of the upper term was based on ‘“the nature, seriousness, and circumstances of the crime’” (Black, at p. 807), but Black suggests the trial court also relied upon the defendant’s recidivism to impose the upper term. (Black, at p. 818, fn. 7).
“The United States Supreme Court has recognized two exceptions to a defendant’s Sixth Amendment right to a jury trial on an aggravating fact that renders him or her eligible for a sentence above the statutory maximum. First, a fact admitted by the defendant may be used to increase his or her sentence beyond the maximum authorized by the jury’s verdict. (Blakely, supra, 542 U.S. at p. 303.) Second, the right to jury trial and the requirement of proof beyond a reasonable doubt do not apply to the aggravating fact of a prior conviction. [Citations.]” (Sandoval, supra, 41 Cal.4that pp. 836-837.)
In People v. Velasquez (2007) 152 Cal.App.4th 1503 (Velasquez), a jury convicted the defendant of aggravated assault with firearm use, and attempted murder. The trial court had discretion to impose consecutive sentences on the counts, an upper term for the aggravated assault, and an upper term for the firearm enhancement. (Velasquez, at p. 1512.) The record, submitted to the trial court in connection with its sentencing decision, included the probation report and a sentencing memorandum. (Velasquez, at pp. 1512, 1515.) That record apparently reflected the existence of two recidivist aggravating factors, including the factor that the defendant had served a prior prison term. (Id. at p. 1515.)
Velasquez was decided before Black, and review was denied in Velasquez after Black.
Based in part on the aggravating factor of the prior prison term, the court imposed consecutive sentences on the counts. (People v. Velasquez, supra, 152 Cal.App.4th at p. 1512.) The court also imposed upper terms for the aggravated assault and enhancement, but failed to state reasons for doing so. (Ibid.) On appeal, the defendant claimed the trial court committed Cunningham error when imposing the upper terms. (Id. at pp. 1512-1513.)
In Velasquez, Division Seven of this court concluded the two aggravating factors were each established by means satisfying the Sixth Amendment, and imposition of the upper terms was fully authorized based on the jury’s verdict and the court’s findings on the recidivism factors. (People v. Velasquez, supra, 152 Cal.App.4th at p. 1516.) This was true even though the trial court expressly relied upon the prior prison term to impose consecutive sentences, and did not expressly rely upon the prior prison term to impose the upper terms.
(2) Application of the Law to This Case.
The present case is, in many respects, similar to Velasquez. In the present case, the record, submitted to the trial court in connection with its sentencing decision, included the probation report which reflected appellant’s recidivism, that is, her convictions for voluntary manslaughter, mayhem, unauthorized taking of a vehicle, and aggravated assault. That record also reflects appellant’s admissions that she suffered the first three prior convictions.
Based in part on appellant’s recidivism, the trial court in the present case denied her motion to dismiss the strikes. The court imposed an upper term for the Penal Code section 12022.7, subdivision (e) enhancement, but failed to state reasons for doing so.
We believe Velasquez controls here. We conclude the aggravating factor of appellant’s recidivism was established by means satisfying the Sixth Amendment, appellant was therefore eligible for imposition of the upper term, and, as a result, no Cunningham error occurred when the court imposed the upper term on the Penal Code section 12022.7, subdivision (e) enhancement. (Black, supra, 41 Cal.4th at pp. 812-816; Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455; cf. Velasquez, supra, 152 Cal.App.4th at pp. 1515-1517; but see People v. Cardenas (2007) 155 Cal.App.4th 1468, 1479-1483 (Cardenas). This is true even though the trial court expressly relied upon appellant’s recidivism to deny her motion to dismiss the strikes, and did not expressly rely upon her recidivism to impose the upper term.
To the extent the record reflects appellant allegedly committed past offenses but does not reflect she was convicted of same, we would reach the same result whether or not those offenses occurred.
(3) Cardenas Does Not Compel A Contrary Conclusion.
Cardenas, a case decided after Velasquez and Black, does not compel a contrary conclusion. In Cardenas, Division Seven of this district concluded that a trial court committed Cunningham error when imposing an upper term for robbery. (Cardenas, supra, 155 Cal.App.4th at pp. 1471, 1478-1483.) As part of its analysis, Cardenas stated, “while Cardenas’s prior convictions and juvenile adjudications may have been included in the probation report, they were not cited in the prosecutor’s sentencing brief nor, of critical importance, were they mentioned by the trial court as an aggravating factor warranting Cardenas receiv[ing] a high term sentence.” (Cardenas, at p. 1482.)
However, although Cardenas suggested that the defendant’s probation report referred to his recidivism (Cardenas, supra, 155 Cal.App.4th at p. 1482), Cardenas failed to state explicitly and unequivocally whether the report referred to his recidivism. Moreover, although Cardenas quoted Black for the proposition that the trial court is presumed to have considered the probation report (ibid.), Cardenas failed to discuss whether any reference in the report to the defendant’s recidivism triggered application of the presumption with the result that the defendant was eligible for imposition of the upper term. Finally, in Cardenas, the trial court failed to actually consider the defendant’s recidivism at all. (Cardenas, supra, 155 Cal.App.4th at pp. 1479-1480, 1482.)
By way of contrast, in the present case, we conclude the trial court is presumed to have considered appellant’s probation report (Black, supra, 41 Cal.4th at p. 818, fn. 7), including her recidivism referred to therein. Beyond that, the trial court in the present case actually considered appellant’s recidivism as reflected in that report, and as reflected in her admissions and the trial court’s reliance on appellant’s recidivism to deny her motion to dismiss the strikes.
In Velasquez, the trial court actually considered the aggravating factor of the defendant’s prior prison term in connection with the court’s sentencing decision (Velasquez, supra, 152 Cal.App.4th 1512), and the second aggravating factor that his prior convictions were numerous or of increasing seriousness was contained in the probation report. (Ibid.) As mentioned, the trial court is presumed to have considered that report. Moreover, Velasquez’s reference to the trial “court’s finding on the recidivism factors” (Velasquez, at p. 1516) implies the trial court actually considered both aggravating factors.
In Cardenas, the trial court failed to expressly rely upon recidivism to impose an upper term (Cardenas, supra, 155 Cal.App.4th at pp. 1479-1480, 1482-1483), a fact equally true of the trial court in the present case (and in Velasquez). However, that fact, in light of our above analysis, is not of controlling significance here.
Penal Code section 1170, subdivision (b) and California Rules of Court, rule 4.406(b)(4), cited by Cardenas, do not compel a contrary conclusion. Those provisions apply to the selection of, inter alia, an upper term. They do not by their terms apply to the logically antecedent determination of whether a defendant is eligible for selection of an upper term.
(Cardenas, supra, 155 Cal.App.4th at p. 1482, fn. 48.)
b. Any Cunningham Error Was Not Prejudicial.
Sandoval concluded that the harmless error standard set forth in Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705]) applies to Cunningham error. (Sandoval, supra, 41 Cal.4th at p. 838.) In applying that standard “we must determine whether, if the question of the existence of an aggravating circumstance or circumstances had been submitted to the jury, the jury’s verdict would have authorized the upper term sentence.” (Ibid., italics added.) “[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, italics added.) We determine this issue in view of the jury’s verdict (id. at p. 841) and in view of “the state of the evidence” (ibid.) actually presented to the jury.
In the present case, the People presented evidence to the jury that Farris was sleeping when appellant attacked him. That is, at the time of appellant’s attack, Farris was a “particularly vulnerable” victim within the meaning of California Rules of Court, rule 4.421(a)(3). (Cf. People v. Loudermilk (1987) 195 Cal.App.3d 996, 1007.) The trial court imposed the upper term based in part on the facts that Farris was vulnerable and sleeping, that is, essentially, because he was particularly vulnerable. We conclude any Cunningham error was harmless beyond a reasonable doubt, because the jury unquestionably would have found true that Farris was particularly vulnerable had that issue been submitted to the jury.
In light of this analysis, there is no need to reach respondent’s claim that any Cunningham error was harmless because the trial court would have imposed the upper term based on appellant’s recidivism, where respondent does not claim that evidence of that recidivism was presented to the jury.
DISPOSITION
The judgment is affirmed.
We concur: KLEIN, P. J. ALDRICH, J.
We note that the heading of Cardenas’s discussion of the Cunningham issue on its merits reads “The trial court erred when it imposed the upper term based solely on its own factual determination the crime involved ‘planning’ and ‘sophistication’ without considering appellant’s prior misdemeanor convictions.” (Cardenas, supra, 15Cal.App.4th at p. 1479, italics added, some capitalization omitted.)