Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCE260439, Patricia K. Cookson, Judge.
BENKE, Acting P. J.
A jury convicted Archie Lee Thomas of residential burglary (Pen. Code, §§ 459, 460), count 1; assault with intent to commit rape (§ 220), count 2; attempted forcible rape (§§ 664, 261, subd. (a)(2)), count 3; five counts of forcible rape (§ 261, subd. (a)(2)), counts 4, 6-7, 9-10; rape with a foreign object with use of force (§ 289, subd. (a)(1)), count 5; and forcible oral copulation (§ 288a, subd. (c)(2)), count 8. The jury also found the forcible sex offenses were committed during the commission of a burglary within the meaning of the "one strike" law. (§ 667.61, subds. (a), (c), (d).) The court sentenced Thomas to a determinate term of 55 years, followed by an indeterminate term of 25 years to life in prison.
All further statutory references are to the Penal Code unless otherwise specified.
Thomas appeals his conviction, contending (1) the court improperly denied his pre-trial motion for self-representation, (2) the court erroneously admitted irrelevant and prejudicial evidence from the victim, (3) the court's imposition of upper term sentences in counts 1 and 5 through 10 violated his Sixth and Fourteenth Amendment rights and (4) the court incorrectly imposed on him a "direct victim" restitution fine payable to the El Cajon Police Department.
FACTS
On April 14, 2006, high school senior Natalie G. was home alone. At approximately 4:00 p.m. appellant knocked on her door. Appellant had recently moved to San Diego and was working as a salesperson, going door to door selling cleaning supplies. Natalie opened the door and appellant asked her when her parents would be home. After Natalie told him 5:00 p.m., he began to ask her personal questions. When Natalie attempted to end the encounter, he forced his way into the house. A struggle ensued and appellant was eventually able to overpower Natalie. During the struggle, a wound on Natalie's lip reopened and she bled on his shirt.
Appellant told Natalie to remove her shorts and demanded a condom. She informed him she did not have one, and he told her to get a plastic bag. Appellant wrapped a plastic grocery bag around his penis and attempted, unsuccessfully, to rape Natalie. He then demanded oil, but she was unable to quickly find any oil in the kitchen and offered him lotion. Appellant then moved Natalie to her bedroom where the lotion was located and raped her from behind while choking her.
When appellant finished raping Natalie, he told her he would probably have to kill her so she would not tell anyone about the rape. She begged him not to hurt her and promised not to say anything about the rape. He went to the bathroom and apparently flushed the plastic bag down the toilet. Appellant complained about the blood on his shirt and Natalie offered to get him another shirt. He then forced her to clean up the mess created by their struggle. She straightened furniture, swept up dirt spilt when she threw a potted plant at him and picked up the pieces of a broken glass cup. As she cleaned, the house telephone rang and caller ID showed it was Natalie's father. Appellant told her not to answer. Immediately thereafter, her cell phone rang, and he allowed her to answer her father's call but warned her not to say anything. Natalie told her father she had not answered the house phone as she was in the bathroom and she would call him back.
Natalie continued to clean until appellant told her he wanted some more and demanded she get another bag. He brought her back to her room and attempted to rape her from behind. Appellant once again was unable to penetrate Natalie, so he grabbed a bottle and forced it inside of her. He removed the bottle, placed his fingers inside of her and eventually raped her again. During this rape, the house phone rang again and he allowed her to answer it. Natalie told her father she forgot to call him back and retrieved a phone number for him while appellant stood next to her.
After the phone call, appellant raped Natalie from behind again. He then forced her to orally copulate him. After awhile, appellant demanded that she "ride him," as she was on top of him. She told him her mother would be home soon. Appellant stated he better get this done and raped her from behind. Afterwards, he once again went to the bathroom and apparently flushed the plastic bag. Appellant demanded Natalie put her clothes back on, and he took one of her father's shirts. Appellant told her he was sorry and to "have a nice life." As he left, he made her promise not to tell anyone.
Natalie locked the door behind appellant. Because she was afraid to call the police, she called her ex-boyfriend. Before she could tell him what happened, appellant was looking through the window and pounding on the door. She answered the door, and he stated he forgot his rag. She closed the door and attempted to look for the rag, but he was pounding on the door again before it could be found. She let him back in, and he quickly but unsuccessfully looked for the rag. Appellant saw Natalie had her cell phone and questioned if she called the police, which she denied, stating she called her father. Thomas left, and Natalie again called her ex-boyfriend. She told him what happened, and he immediately came to her house. The ex-boyfriend convinced her to call the police, and he stayed with her until her parents and the police arrived.
The police found and detained appellant a few hours later. An officer drove Natalie to where they were detaining appellant, and she positively identified him as the person that raped her. He was arrested and searched. A shirt with blood stains was found in his backpack, the blood was later determined to be Natalie's. Appellant was taken to the police station and underwent a physical examination. Natalie's DNA was found on appellant's penis and scrotum. Appellant had recent injuries to his forehead and neck. Natalie was taken to the hospital and underwent a physical examination. Appellant's DNA was found inside of her vagina. Bruises and abrasions were found on Natalie's jaw, knees and genital area. Evidence was collected from Natalie's home, including a bottle and broken glass in the kitchen. Natalie's blood and DNA were found on the bottle. The nurse who examined Natalie later testified her injuries were consistent with her story. Natalie testified she did not know appellant, did not invite him into her home and did not consent to have sexual activity with him.
DISCUSSION
A. Denial of the Motion for Self-Representation
Appellant contends the court erred in denying his motion to represent himself. He specifically argues his conviction should be reversed because his motion was timely, or, in the alternative, the court failed to make an adequate inquiry in considering his motion for self-representation. We find no error.
Appellant was arraigned, pled not guilty and denied further allegations a few days after being arrested for Natalie's rape. He was represented by appointed counsel, Deputy Public Defender Arturo Herrera. Approximately a month after appellant's arrest, a preliminary hearing was held. A few weeks later, appellant was arraigned on the information, once again pleading not guilty and denying further allegations. At the July 3, 2006, trial readiness conference, defense counsel declared there was a doubt as to appellant's competency, and criminal proceedings were suspended. In mid-August, the court held a hearing on appellant's competency; the court found him competent to stand trial, and criminal proceedings were reinstated. Three trial readiness conferences were held during September and October 2006.
Trial commenced on October 23, 2006. At the beginning of the proceedings, appellant requested a Marsden hearing, which was promptly held out of the presence of the prosecutor. Appellant complained of a lack of communication between him and Attorney Herrera as well as a feeling that his counsel had no interest in his case. Herrera responded that communication was strained and appellant did not have confidence in him. He also stated that he had adequately prepared for the case but communication was difficult since the period of time when he felt appellant was not lucid.
People v. Marsden (1970) 2 Cal.3d 118.
The court denied the Marsden motion and offered a day for Herrera and appellant to discuss the case. Appellant then stated he had a constitutional right to a Lopez waiver. After determining appellant wished to represent himself, the court asked if he had any legal experience, to which appellant replied he would need 60 days to prepare. The court then made a finding appellant was using a dilatory tactic in trying to avoid trial. The record shows appellant made numerous assertions of his right to represent himself. The record also reflects that the court explained why it was denying his motions. The court did find Attorney Herrera adequately represented appellant during the preliminary hearing and denied a motion by appellant to continue the hearing because he was not yet ready.
People v. Lopez (1977) 71 Cal.App.3d 568, 572-574.
In Faretta v. California (1975) 422 U.S. 806 [95 S.Ct. 2525] it was held if he voluntarily and intelligently chooses to do so, a defendant in a state criminal trial has a constitutional right to represent himself under the Sixth and Fourteenth Amendments . (Id. at p. 838.) A request for self-representation must be granted if the defendant is mentally competent, the request is knowingly and intelligently made after being apprised of the dangers of self-representation, the request is unequivocal and the request is made within a reasonable time before trial. (People v. Welch (1999) 20 Cal.4th 701, 729.) If the motion is not timely, self-representation is no longer a right but subject to the trial court's discretion. (People v. Valdez (2004) 32 Cal 4th 73, 103.)
Thus, when a defendant has not asserted the right to self-representation within a reasonable time, it is within the court's discretion to determine whether the defendant may dismiss counsel and proceed pro se. (People v. Windham (1977) 19 Cal.3d 121, 124.) Further, "where self-representation is requested for a legitimate reason, where there is no request for a continuance and where there is no reason to believe there would be any delay or disruption, the trial court's denial of a Faretta motion is an abuse of discretion." (People v. Nicholson (1994)24 Cal.App.4th 584, 593.)
"The 'reasonable time' requirement is intended to prevent the defendant from misusing the motion to unjustifiably delay trial or obstruct the orderly administration of justice." (People v. Burton (1989) 48 Cal.3d 843, 852.) If such a motion is untimely, the defendant has the burden of justifying the delay. (People v. Valdez, supra, 32 Cal 4th at p. 103.) When a court exercises its discretion in deciding an untimely motion for self-representation, it is required to consider (1) the quality of counsels' representation, (2) the defendant's prior proclivity to substitute counsel, (3) the reasons for the request, (4) the length and stage of the proceedings and (5) the disruption or delay which might reasonably be expected to follow the granting of such a motion. (People v. Windham, supra, 19 Cal.3d at p. 128; People v. Burton, supra, 48 Cal.3d at p. 853.) One factor alone does not undermine a court's conclusion that granting the motion would unjustifiably delay trial or obstruct the orderly administration of justice. (People v. Burton, supra, 48 Cal.3d at p. 854.) However, basing a decision on the defendant's lack of legal ability alone is erroneous as it is an irrelevant consideration. (People v. Nicholson, supra, 24 Cal App 4th at p. 594.)
Here, although the court found appellant to be mentally competent and his request for self-representation was unequivocal, the motion was clearly untimely as it was made on the first day of trial. Appellant contends because the jury was not yet impaneled, the motion was not untimely. However, case law plainly indicates a motion for self-representation made at trial call is untimely. (People v. Windham, supra, 19 Cal.3d at p. 129, fn. 5; People v. Burton, supra, 48 Cal.3d at p. 853; People v. Valdez, supra, 32 Cal.4th at p. 102.) Further, appellant had several court appearances leading up to the trial date where he made neither a Marsden nor a Faretta motion. Finally, appellant gave no indication as to the reason for his delay in making the motion for self-representation, and the burden was clearly upon him to justify any delay.
An untimely motion for self-representation may be granted if it will not delay the proceedings. However, when the court questioned appellant to ascertain if he understood the ramifications of self-representation, he responded with a request for a 60-day continuance to prepare. The court's finding that appellant was creating a dilatory tactic in trying to avoid trial seems well founded as he requested another continuance at the denial of his motion based on the grounds that he was not yet ready. Thomas's attempt to delay the proceedings is evident in the record.
Appellant also contends the court erred in failing to weigh the Windham factors while considering his motion for self-representation. However, it is clear from the record the court did make the required inquiry. Although the final two factors, regarding the stage of the proceedings and the delay caused in granting such a motion, appear to have weighed most heavily on the court, it did consider the other factors. The court found Herrera to be providing adequate representation. Further, the court carefully considered appellant's reason for bringing the motion for self-representation, his dissatisfaction with current counsel and found it did not rise to the level that would require the replacement of counsel. The court did not consider appellant's proclivity to substitute counsel, but the presence of one Windham factor alone is not sufficient to require the granting of an untimely motion for self-representation. (People v. Burton, supra, 48 Cal.3d at p. 854.) Even though the court found it was not in appellant's best interest to represent himself, the court did not rest its finding on this justification but instead placed its finding on the untimeliness of the motion and the delay it would cause. Thus, the court did not abuse its discretion in denying appellant's motion for self-representation.
B. Victim's Statement Regarding Her Inability to Sleep in Her Bedroom
Appellant asserts the trial court admitted irrelevant and prejudicial evidence in the form of the victim's testimony that she was unable to sleep in her own bedroom after the alleged rape occurred. He contends any probative value in this testimony was outweighed by its prejudicial effect and therefore his conviction should be reversed.
Prior to appellant's trial, the prosecution moved the court to allow evidence of Natalie's fear of being alone, her inability to sleep in her own bedroom and her ongoing counseling sessions after the rape. The prosecution argued the only element of rape at issue in this case was consent, and this evidence went to show Natalie's lack of consent. The court ruled if the aspect of counseling was brought up at trial, the defense had a right to Natalie's counseling records. Due to the potential delay the introduction of the counseling records would cause, the prosecution declined to introduce the evidence. The prosecution once again moved the court to recall Natalie at the conclusion of its case and question her only as to her inability to sleep in her own bedroom, arguing it was probative to the issue of consent. The defense made timely objections to the introduction of this evidence. The trial court decided to allow the evidence as it went to the issue of consent, whether or not it was raised by the defense. At trial, Natalie testified she has been unable to sleep in her own bedroom since the rape, and so she switched rooms with her younger brother.
Pursuant to the Evidence Code, all relevant evidence is admissible unless otherwise provided by statute. (Evid. Code, § 351.) "Relevant evidence" is defined as evidence that has any reasonable tendency to prove or disprove any disputed fact that is of consequence to the determination of the action. (Evid. Code, § 210.) Further, courts have the discretion to exclude relevant evidence "if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352.)
The abuse of discretion standard of review applies to any ruling by a trial court on the admissibility of evidence. (People v. Rowland (1992) 4 Cal.4th 238, 264.) Under this standard, a trial court's ruling will not be disturbed, and reversal of the judgment is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Guerra (2006) 37 Cal.4th 1067, 1114; People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
The discretion granted the court by Evidence Code section 352 is not absolute and must be exercised reasonably in accord with the facts before the court. (Brainard v. Cotner (1976) 59 Cal.App.3d 790, 795, fn. 2.)
The "prejudice" referred to in the Evidence Code is not the same as damaging evidence but refers instead to evidence which tends to evoke an emotional bias against the defendant without regard to its relevance on material issues. (People v. Kipp (2001) 26 Cal.4th 1100, 1121.) A balancing process is required which considers the " 'relationship between the evidence and the relevant inferences to be drawn from it, whether the evidence is relevant to the main or only a collateral issue, and the necessity of the evidence to the proponent's case as well as the reasons recited in [Evidence Code] section 352 for exclusion.' " (People v. Wright (1985) 39 Cal.3d 576, 585, quoting Kessler v. Gray (1978) 77 Cal.App.3d 284, 291.) However, in a forcible rape case, evidence is relevant if it establishes any circumstance making the victim's consent to sexual intercourse less plausible. (People v. Guerra, supra, 37 Cal.4th at p. 1114; see, e.g., People v. Rowland, supra, 4 Cal.4th at p. 264 [evidence that victim had a "terrible headache" and had to get to work early the next morning was "clearly probative of rape"].)
In the event the court committed error, reversal of the judgment depends on whether the error resulted in a miscarriage of justice. (People v. Watson (1956) 46 Cal.2d. 818, 835.) A miscarriage of justice should only be declared if, after an examination of the entire cause, it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error. (Id. at p. 836.) Such a declaration must necessarily be based upon reasonable probabilities rather than upon mere possibilities. (Id. at p. 837.) However, "a miscarriage of justice has occurred when the case is closely balanced and the acts of misconduct are such as to have contributed materially to the verdict." (People v. Wagner (1975) 13 Cal.3d 612, 621.)
Natalie's testimony of her inability to sleep in her own bedroom after the rape was limited in scope to that fact. Although this testimony may have invoked the jury's sympathy, it does not rise to the level of an abuse of discretion. Consent was an important issue in this case, especially as Natalie allowed appellant back into the house after the rape. The fact she could not sleep in the same room as the rapes took place and has moved to another room is relevant to determining if she consented to the sexual activity. The court balanced the probative value of her testimony as it related to her lack of consent against any prejudice such statements would have against appellant and found it more probative than prejudicial. Although caution is essential in dealing with victims' statements relating to their state of mind after the traumatic event, the trial court has the discretion to balance the probative value of these statements against the prejudice to the defendant. (People v. Guerra, supra, 37 Cal.4th at p. 1114.) Unless the court acts in such an arbitrary, capricious or patently absurd manner that a manifest miscarriage of justice occurs, their discretion will not be disturbed. (Ibid.) No manifest miscarriage of justice is evident in the case before use, thus the court did not abuse its discretion.
Although we find the court did not abuse its discretion in allowing the victim's testimony regarding her inability to sleep in her own bedroom, we also find that any assumed error in admitting the testimony was harmless. Here, the prosecution presented strong physical evidence and testimony from the victim regarding the circumstances surrounding the rape. It is not reasonably probable the jury would have come to a different conclusion had the testimony at issue been omitted. This was not a close case. Thus, had the admission of this testimony been improper, any error would have been harmless.
C. Upper Term Sentencing Error
Appellant argues the imposition of the upper term sentences on counts 1 and 5 through 10 violated his Sixth Amendment right to a jury trial and Fourteenth Amendment right to due process because the aggravating factors used by the court to impose the upper term were not found by the jury but instead were determined by the judge.
The court sentenced appellant to a determinate term of 55 years followed by an indeterminate term of 25 years to life in prison. His sentence consists of the upper term of six years for count 1, residential burglary, plus a consecutive year−the third of the middle term−for count 3, attempted forcible rape, plus upper term consecutive eight-year sentences for counts 5 through 10, rape with a foreign object, four counts of forcible rape and forcible oral copulation, followed by an indeterminate term of 25 years to life for count 4, forcible rape. The court found the imposition of the upper term was warranted due to following aggravating circumstances: (1) Thomas engaged in very violent conduct; (2) his actions were degrading and humiliating; and (3) he threatened to kill the victim several times.
In Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856, 860] (Cunningham), the United States Supreme Court held California's determinate sentencing scheme violated the Sixth Amendment. Under the rule articulated in Apprendi v. New Jersey (2000) 530 U.S. 466, and its progeny "the [f]ederal Constitution's jury trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant. [Citations.]" (Cunningham, supra, 549 U.S. ___ [127 S.Ct. at p. 860].)
The California Supreme Court in People v. Sandoval (2007) 41 Cal.4th 825 found the defendant's failure to object to the upper term sentence on Sixth Amendment grounds did not constitute a forfeiture of the issue on appeal. As the sentencing occurred after People v. Black (2005) 35 Cal.4th 1238 (Black I), and before Cunningham, supra, 549 U.S. ____ [127 S.Ct. 856], any objection to the upper term sentencing procedure would have been futile. (Sandoval, supra, 41 Cal.4th at p. 837, fn. 4.)
However, the Sandoval court found the trial court committed error because the aggravating factors found did not satisfy the Sixth Amendment right to a jury trial in order to make the defendant eligible for the upper term. (Sandoval, supra, 41 Cal.4th at pp. 837-838.) The error was then analyzed under the "harmless beyond a reasonable doubt standard" of Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824] (Chapman). (Sandoval, supra, 41 Cal.4th at pp.837-838.) In determining whether a trial court's error in imposing an upper term sentence in violation of the defendant's right to jury trial is harmless, the reviewing court must determine whether, if the question of the existence of an aggravating circumstance had been submitted to the jury, the jury's verdict would have authorized the upper term sentence. (Id. at p. 838.) If 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.)
When appellant's sentence was imposed, California law provided the presumptive sentence was the middle term. Appellant had no previous convictions and no fact he admitted was used to increase his sentencing term. Therefore, he had the right to have any aggravating sentencing factors found by a jury beyond a reasonable doubt. (Cunningham, supra, 549 U.S. ___ [127 S.Ct. 856].) As in Sandoval, appellant was sentenced after Black I and before Cunningham, thus his appeal was not forfeited.
In imposing the upper terms, the court relied on the aggravating sentencing factors it enumerated. These factors were not charged, and they were not derived from any finding by the jury. The first two factors, Thomas's conduct was very violent and his actions were degrading and humiliating, involved conclusions that were, at least arguably, based on "an imprecise quantitative or comparative evaluation of the facts." (People v. Sandoval, supra, 41 Cal.4th at p. 840.) When aggravating circumstances rest on "somewhat vague or subjective standard[s], 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." (Ibid.) Arguably such is the case with the first two factors. (Id. at p. 839.)
However, the third factor, that appellant threatened to kill the victim several times, was elicited directly from her testimony. The fact the jury found appellant guilty of all of the forcible sexual assault charges demonstrates its embrace of Natalie's testimony. There is no reason to believe the jury would have found appellant guilty beyond a reasonable doubt of the charges it did and not find beyond a reasonable doubt that he threatened to kill Natalie to keep her from disclosing the rape. There is simply nothing in the record nor in appellant's argument that suggests Natalie' testimony regarding the threat was any less believable than her testimony about the rapes generally. The defense would not have been indifferent to her testimony concerning the threats because it touched directly on the defense claim of consent. We therefore hold that had this aggravating circumstance been submitted to the jury, it would have found the circumstance true beyond a reasonable doubt. Thus, under Sandoval, the lack of submission to the jury of the aggravating circumstances was harmless error, and remand for resentencing is unwarranted.
The victim's testimony elicited at trial includes only one instance of a death threat made by Thomas. We conclude the court made an inadvertent misstatement when it stated he threatened to kill her several times. Moreover, the number of times he made the threat is not dispositive to the issue.
D. The Court's Imposition of a Direct Victim Restitution Fine
Appellant claims the court improperly imposed a $895 restitution fine payable to the El Cajon Police Department. The fine was ordered as direct restitution pursuant to section 1202.4, subdivision (f), for the costs of the medical examination conducted on the victim.
The probation report noted that the El Cajon Police Department expended $895 for a medical examination conducted on the victim as part of the department's investigation of the crime and recommended restitution to the department in that amount pursuant to section 1203h, subdivision (b). Section 1202.4, subdivision (f), authorizes the court to order the defendant to pay restitution to a victim for economic loss as a result of the defendant's conduct. Under the facts of this case, direction restitution pursuant to section 1202.4, subdivision (f), is improper because a police department is not a direct victim of the crime. (See People v. Martinez (2005) 36 Cal.4th 384, 394, fn. 2.)
However, section 1203.1h, subdivision (b), states in part: "If the court determines that the defendant has the ability to pay all or part of the cost of the medical examination, the court may set the amount to be reimbursed and order the defendant to pay that sum to the law enforcement agency, county, or local governmental agency, in the manner in which the court believes reasonable and compatible with the defendant's financial ability."
Clearly, the trial court misspoke and intended the restitution order be based on section 1203.1h, subdivision (b). However, no hearing was held or findings made regarding Thomas's ability to pay the restitution fine, and it was improperly imposed.
Respondent argues Thomas forfeited the issue because he did not object to the fine at the sentencing hearing. "As a general rule, only 'claims properly raised and preserved by the parties are reviewable on appeal.' " (People v. Smith (2001) 24 Cal.4th 849, 852, citing People v. Scott (1994) 9 Cal.4th 331, 354.) Thus, claims raised for the first time on appeal regarding the court's failure to properly make or articulate its discretionary sentencing choices are not subject to review. (People v. Smith, supra, 24 Cal.4th at p. 852.) A narrow exception to the waiver rule exists for "obvious legal errors at sentencing that are correctable without referring to factual findings in the record or remanding for further findings." (Ibid.) Because the erroneous imposition of a restitution fine presents a pure question of law with only one answer, any such error is obvious and correctable without reference to any factual issues in the record or remanding for further findings. (See ibid.) Accordingly, the invalid restitution fine issue is not waived, and the order appellant pay an $895 restitution fine is reversed.
DISPOSITION
The order of a restitution fine, in the amount of $895 payable to the El Cajon Police Department, is reversed. All other aspects of the judgment are affirmed.
I CONCUR: IRION, J.
Aaron, J., concurring and dissenting:
The majority's comment that "[t]here is no reason to believe the jury would have found appellant guilty beyond a reasonable doubt of the charges it did and not find beyond a reasonable doubt that he threatened to kill Natalie to keep her from disclosing the rape" (maj. opn. ante, at p. 16), brings to mind Justice Scalia's observation in Crawford v. Washington (2004) 541 U.S. 36, 62, that "[d]ispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty." The clear import of Justice Scalia's remark is that it would be unthinkable to dispense with a jury trial because a court has concluded that the defendant is "obviously guilty." Yet that is precisely the effect of the majority's opinion in this case.
Acknowledging that appellant "had the right to have any aggravating sentencing factors found by a jury beyond a reasonable doubt" (maj. opn. ante, at p.15), and that the three aggravating factors on which the trial court relied to impose an upper term sentence "were not charged and . . . were not derived from any finding by the jury" (maj. opn., ante, at p. 15), the majority nevertheless upholds the upper term sentence on the basis that the jury's guilty verdicts on all of the charges of forcible sexual assault demonstrate that the jury "embrace[d]" (maj. opn. ante, at p. 16) the victim's testimony, and concludes that the jury would have found that appellant threatened her, if it had been presented with that issue. The majority thus essentially concludes that it is obvious that appellant threatened the victim, and holds that for this reason, the lack of a jury finding as to the threat constitutes harmless error under People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval). In reaching this conclusion, the majority misinterprets and misapplies the holding in Sandoval.
In addressing the question of what standard of review applies when the trial court has relied on an aggravating circumstance to impose an upper term sentence where there is no jury finding as to any aggravating circumstance, the Sandoval court noted that in Washington v. Recuenco (2006) 548 U.S. 212 (Recuenco), the United States Supreme Court held that a harmless error analysis applies to the failure to submit a sentencing factor to a jury, "finding no distinction, for purposes of harmless error analysis of Sixth Amendment violations, between a sentencing factor that must be submitted to a jury and an element of a crime." (Sandoval, supra, 41 Cal.4th at p. 838.) The Recuenco court reached this conclusion based on Neder v. United States (1999) 527 U.S. 1 (Neder), in which the court held that the failure to submit an element of an offense to the jury was subject to review under a harmless error standard. (Recuenco, supra, 548 U.S. at p. 219.)
In Recuenco, the defendant was charged with assault in the second degree, "'intentiona[l] assault . . . with a deadly weapon, to-wit: a handgun.'" (Recuenco, supra, 548 U.S. at p. 214.) The jury convicted the defendant of second degree assault and also found that in committing the assault, the defendant used a deadly weapon. The verdict form did not require a jury finding as to whether the defendant had used a firearm, as opposed to any other deadly weapon. (Id. at p. 215.) In sentencing the defendant, the trial court imposed a three-year firearm enhancement rather than a one-year enhancement applicable to the use of a deadly weapon, based on the court's finding that the defendant was armed with a firearm when he committed the assault. Acknowledging that sentencing factors, like elements of a crime, must be tried to the jury and proved beyond a reasonable doubt, and citing Neder, supra, 527 U.S. 1, the Recuenco court held that the failure to submit the aggravating factor of use of a firearm to the jury, like the failure to submit an element of an offense, did not constitute structural error, but rather, was properly subject to harmless error analysis. (Recuenco, supra, 548 U.S. at pp. 220-222.)
In Sandoval, the court held that where there has been no jury determination as to any aggravating factor, the relevant inquiry is "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." (Sandoval, supra, 41 Cal.4th at p. 838.) The court elaborated, "[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.)
In reaching this holding, the Sandoval court differed with the Recuenco court's observation that there is no real distinction between an element of an offense and a sentencing factor, in terms of the failure to submit the issue to the jury (Recuenco, supra, 548 U.S. at p. 220), cautioning that a reviewing court must take into account the differences between the nature of the errors at issue in a case, such as this one, in which an aggravating circumstance was not submitted to the jury and a case in which the trial court fails to instruct the jury on an element of the crime "but where the parties were aware during trial that the element was at issue." (Sandoval, supra, 41 Cal.4th at p. 839.) Where the jury has not been called upon to determine the existence of an aggravating circumstance, "the reviewing court cannot necessarily assume that the record reflects all of the evidence that would have been presented had aggravating circumstances been submitted to the jury" (id. at p. 839), because the defendant "did not necessarily have reason ─ or the opportunity ─ during trial to challenge the evidence supporting these aggravating circumstances unless such a challenge also would have tended to undermine proof of an element of an alleged offense." (Ibid.) The Sandoval court further noted that although the defendant would have had both the incentive and the opportunity to contest aggravating circumstances at the sentencing hearing, "that incentive and opportunity were not necessarily the same as they would have been had the aggravating circumstances been tried to a jury." (Ibid.) The court concluded, "Accordingly, a reviewing court cannot always be confident that the factual record would have been the same had aggravating circumstances been charged and tried to the jury." (Id. at p. 840).
The aggravating circumstances on which the trial court relied to impose an upper term sentence in Sandoval were that "(1) the crime involved a great amount of violence; (2) defendant engaged in callous behavior; (3) defendant lacked any concern regarding the consequences of her actions; (4) the victims were particularly vulnerable because they were unarmed, inebriated, and ambushed from behind; (5) defendant was the 'motivating force' behind the crimes; and (6) defendant's actions reflected planning and premeditation." (Sandoval, supra, 41 Cal.4th at p. 841.) The Sandoval court rejected the Attorney General's argument that the court should conclude, beyond a reasonable doubt, that the jury would have found true each of the aggravating circumstances "because each was supported by 'largely uncontested or overwhelming evidence'" (ibid.), and reversed the upper term sentence, on the basis that the evidence was not sufficiently clear as to any of the six circumstances to permit the court to conclude, beyond a reasonable doubt, that the jury would have found any of them to be true if given the opportunity. (Id. at p. 843.)
The Sandoval court emphasized that a reviewing court may affirm an upper term sentence even in the absence of a true finding by the jury as to any aggravating factor only if the court concludes that the jury "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, italics added.) This concept appears to derive from Recuenco, which in turn relies on Neder, supra, 527 U.S. 1. In Neder, in holding that a harmless error analysis applies to the omission of an element of the offense from a jury instruction, the court stated, "In this situation, where a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error, the erroneous instruction is properly found to be harmless." (Neder, supra, 527 U.S. at p. 17, italics added.) The Neder court added, "[W]here an omitted element is supported by uncontroverted evidence, this approach reaches an appropriate balance between 'society's interest in punishing the guilty [and] the method by which decisions of guilt are to be made.'" (Id. at p. 18, quoting Connecticut v. Johnson (1983) 460 U.S. 73, 86, italics added.)
In Recuenco, as noted above, the charging document alleged that the defendant committed an intentional assault "with a deadly weapon, to-wit, a handgun" (Recuenco, supra, 548 U.S. at p. 215, italics added), and the jury found, in a special verdict, that the defendant was "armed with a deadly weapon at the time of the commission of the crime." It was apparently uncontroverted that the weapon at issue was a firearm. (Ibid.) Here, in contrast, there is no jury finding relating to any threat by appellant. Appellant was not charged with making a criminal threat ― as one might have expected if the victim had reported the threat to authorities earlier in the process ― and thus had no real incentive to fully contest, at trial, the victim's testimony that he threatened her. It was only at the sentencing hearing that the alleged threat became an issue, but appellant did not have the opportunity to cross-examine the victim at that hearing. Further, there was no evidence corroborating the victim's testimony that appellant threatened her. Under these circumstances, one cannot reasonably conclude that the alleged threat was "uncontested and supported by overwhelming evidence" (Neder, supra, 527 U.S. at p. 17), such that the jury would unquestionably have found the threat allegation to be true. (Sandoval, supra, 41 Cal.4th at p. 839.)
To uphold the trial court's imposition of an upper term sentence, based on a finding that appellant threatened Natalie, puts this court in the position of becoming, in effect, "'a second jury.'" (Neder, supra, 527 U.S. at p. 19, quoting R. Traynor, The Riddle of Harmless Error 50 (1970) p. 21.) For this reason, I dissent from part C of the majority opinion, in which the majority holds that the trial court did not err in relying on the aggravating factor that appellant "threatened to kill the victim several times" (maj. opn. at p. 16), to impose an upper term sentence. I concur in the remaining portions of the majority opinion.