Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. VA080292, Raul A. Sahagun, Judge.
Lynda A. Romero, 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, Susan D. Martynec, Theresa A. Patterson and Alene M. Games, Deputy Attorneys General, for Plaintiff and Respondent.
KITCHING, J.
A jury found Ismael Jose Alvarado (Alvarado) guilty of two counts of committing a forcible lewd act upon a child under the age of 14 years (Pen. Code, § 288, subd. (b)(1)), making criminal threats (§ 422) and child abuse (§ 273a, subd. (a)). Acting under the mistaken belief that between the sex offenses the victim slept or feigned sleep, the trial court determined the offenses occurred on “separate occasions” and, as to those counts, sentenced Alvarado to mandatory, full, six-year consecutive sentences pursuant to section 667.6, subdivision (d). The trial court then imposed a consecutive sentence of one-third the middle term, or eight months, for Alvarado’s conviction of making criminal threats and stayed imposition of sentence pursuant to section 654 for his conviction of child abuse. In total, the trial court sentenced Alvarado to 12 years, eight months in prison. Alvarado appealed.
All further statutory references are to the Penal Code unless otherwise indicated.
In an opinion filed on January 10, 2006 (People v. Alvarado (Jan. 10, 2006, B178322) [nonpub. opn.]), this court determined the trial court erred when it imposed mandatory, full term consecutive sentences for Alvarado’s convictions of committing a forcible lewd act upon a child. We concluded the sentencing error, which was based on a mistake of fact, violated Alvarado’s right to due process of law. Accordingly, we vacated the 12-year, eight-month sentence and remanded the matter for resentencing.
Pursuant to Alvarado’s request, we take judicial notice of the court records and opinion filed People v. Alvarado, supra, B178322. (Evid. Code, § 452, subd. (d).)
At resentencing proceedings held on May 16, 2006, the trial court again imposed full, consecutive, six-year sentences for Alvarado’s convictions of committing a forcible lewd act upon a child. This time, however, the trial court imposed the terms, not as mandatory, but by exercising its discretion under subdivision (c) of section 667.6. The trial court then imposed a consecutive term of one-third the middle term, or eight months, for Alvarado’s conviction of making criminal threats and stayed pursuant to section 654 imposition of sentence for Alvarado’s conviction of child abuse. In total, the trial court again sentenced Alvarado to 12 years, eight months in prison. Alvarado appeals from the judgment entered following resentencing. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A summary of the relevant facts has been taken from this court’s opinion in People v. Alvarado, supra, B178322.
At approximately 1:45 a.m. on December 28, 2003, Huntington Park Police Officer Anthony Rendon (Rendon), who was in uniform and driving a marked patrol car, saw Alvarado and M.C., an 11-year-old child, in the middle of the street. Rendon believed the two were fighting as Alvarado had his hands around M.C.’s head and neck. When Alvarado saw Rendon, he let go of M.C. and began to walk away. When Rendon ordered Alvarado to stop, Alvarado continued walking. When Rendon then ran toward Alvarado and ordered him to stop, Alvarado complied with the officer’s order.
Rendon asked M.C. what had happened and M.C. initially told the officer that she and Alvarado had been fighting. Rendon then saw that there was a car parked nearby. There was condensation on the inside of the car’s windows, the car’s front seats were pushed toward the front and the backrests of the front seats were leaning forward. Rendon again asked M.C. what had happened. This time M.C. apologized for lying to Rendon and explained that she had lied because Alvarado had told her that if she spoke to the police, he would kill her mother.
M.C. told Rendon that she and Alvarado had left a party, then parked in front of M.C.’s mother’s place of employment. Alvarado offered beer to M.C. and she drank some. Alvarado and M.C. then drove around for awhile, until Alvarado stopped the car and got out to urinate. When he returned, he told M.C. that they were lost and that he could not find the car keys. The two then got into the car’s back seat and went to sleep. M.C. was awakened when Alvarado got on top of her, had his hand around her neck and face and was holding her down. Alvarado pulled down his pants and exposed his penis. M.C. attempted to fight Alvarado and get away, but he was too strong and she was unable to do so. At some point, Alvarado told M.C. that he was going to put his penis inside her. Rendon testified that M.C. told him that, during the struggle in the back seat of the car, Alvarado “ ‘pushed his hands underneath [M.C.’s] T-shirt and underneath her brassiere, [then] touched her breasts. She said he also pushed his hands down her shorts under her underwear and touched the outside of her vagina.’ ”
M.C. told Rendon that she had used a ruse to get out of the car. She had told Alvarado that she would allow him to touch her if she were able to drink a soda which she had left outside the car. Once outside the car, M.C. tried to flee, but Alvarado caught her and the two began to fight. Alvarado knocked M.C. down and put his hands around her face and mouth, making it difficult for her to breathe.
Huntington Park Police Detective Rick Curiel interviewed M.C. by telephone. Curiel testified that M.C. told him that, after falling asleep in the back seat of the car, she was awakened by Alvarado “ ‘squeezing and touching her neck and breast area and vaginal area both over [her] clothing and under [her] clothing’.” M.C. “ ‘also used the word scratched[]’ ” and said that Alvarado “ ‘scratched [her] vagina over her underwear with his fingers.’ ” There was no evidence that Alvarado touched M.C. with his penis.
M.C. testified that at approximately 8:30 p.m. on December 27, 2003, Alvarado took her to a party. It appeared to M.C. that homosexuals and persons engaging in a transvestite show were at the party. M.C., however, played with children there.
M.C. stated that as Alvarado was later driving her in a car, he stopped and got out to urinate. M.C., who was angry at Alvarado because she had not wanted to leave the party, took the car keys from the ignition and threw them out of the car. After Alvarado and M.C. began looking for the keys, Alvarado became angry with M.C., grabbed her and searched her pockets. Alvarado ultimately told M.C. they would sleep in the car that night and find the keys the next morning. M.C. went to sleep in the front seat of the car and was awakened when Alvarado was again searching her pockets for the car keys. M.C. denied having the keys, then got into the back seat of the car and went to sleep.
At some point Alvarado was sitting in the back seat and M.C. was lying on his lap. Alvarado was still searching for the keys to the car. Alvarado was angry and when M.C. told him she wished to get out of the car to get a drink she had left there, a struggle ensued. M.C. fled and Alvarado was trying to catch her when police arrived.
According to M.C., Alvarado did not do anything wrong, never touched her inappropriately, and the incident was merely a struggle over the car keys. However, M.C. testified that, at some point, Alvarado touched the top of her shirt. When she made that statement, the trial court indicated M.C. appeared to be referring to the bottom of her bra.
M.C. testified that her statements to the police had been lies, that she did not want to testify as to what she had told Rendon and that she just wanted the police to release Alvarado so that her family could be restored.
2. Procedural history.
a. The original sentencing proceedings.
On August 31, 2004, counsel for Alvarado filed a sentencing memorandum in which he represented that M.C. went to sleep in the back seat of the car and was awakened when she felt Alvarado touching her around her breasts. According to the memorandum, M.C. told the police that Alvarado began to remove his pants, that she saw his penis, and that he touched his penis to her body. M.C. told Alvarado to stop, then fell asleep. She was again awakened when Alvarado touched her around her breasts. M.C. convinced Alvarado to let her get out of the car and she struggled to get away. M.C. was outside the car when Alvarado put his hand down her shorts. She struggled and escaped just as police arrived.
Sentencing occurred on September 8, 2004. The judge who presided at trial also presided at sentencing and the parties were both represented by the counsel who had represented them at trial. The trial court indicated it had read the probation report and Alvarado’s sentencing memorandum. The probation report did not give a statement of facts regarding the offenses and the People did not submit a sentencing memorandum.
At some point during the proceedings, the following colloquy occurred: “ ‘[The Court:] Now, as I recall, wasn’t it correct that he first assaulted her, then she went to sleep, and he woke her up again and assaulted her again? [¶] [The Prosecutor:] Yes, Your Honor. From the testimony in the trial, . . . we have, clearly, a break in the conduct which was perpetrated resulting in count 1 to the conduct perpetrated result[ing] in count 2. There was a break in the conduct wherein there was the first attack. The break was [M.C.] pretending to be asleep, trying to, I guess, fake sleep to try to get him to stop. Then the attack again resuming at that point, clearly giving [Alvarado] time to think about his actions and be able to recognize what he had been doing was wrong. She was in the back. She was in the front. Then he proceeded to go in the back seat with her.’ ”
The prosecutor argued that sexual conduct also took place outside the car and, accordingly, “ ‘there was a sufficient break in what was taking place to allow [Alvarado] time to consider his conduct . . . .’ ” The prosecutor urged Alvarado’s conduct warranted consecutive sentences as to the counts alleging forcible lewd acts upon a child. Alvarado’s counsel argued that the duration and location of the events militated against consecutive sentences, “ ‘even though [M.C.] allegedly feigned to fall asleep . . . .’ ”
The trial court sentenced Alvarado to the middle term of six years for his conviction of committing a forcible lewd act upon a child as alleged in count one. As to the forcible lewd act alleged in count two, the trial court stated, “ ‘[T]he court does find that the conduct did entail a separate act. The objective was independent of the other. He did have time to reflect between acts. For that reason the court will sentence [Alvarado] in count 2 to an additional consecutive term of six years. That’s full and consecutive pursuant to [California Rules of Court, rule] 4.426, [and section] 667.6(d).’ ”
Section 667.6, subdivision (d) provides in relevant part: “A full, separate and consecutive term shall be imposed for each violation of an offense specified in subdivision (e)[, including the commission of a forcible lewd act upon a child under the age of 14,] if the crimes involve separate victims or involve the same victim on separate occasions. [¶] 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. Neither the duration of time between crimes, nor whether or not the defendant lost or abandoned his or her opportunity to attack, shall be, in and of itself, determinative on the issue of whether the crimes in question occurred on separate occasions. [¶] The term shall be served consecutively to any other term of imprisonment . . . .”
b. This court’s January 10, 2006, opinion in People v. Alvarado.
In our opinion in People v. Alvarado, supra, B178322, this court determined there was no evidence at trial that, after Alvarado touched her breasts, M.C. fell asleep and was later awakened by Alvarado touching her breasts again. In addition, Alvarado’s sentencing memorandum made no reference to his touching of M.C.’s vagina, although at trial there was evidence that such a touching occurred. Finally, contrary to Alvarado’s sentencing memorandum, there was no evidence that Alvarado touched M.C. with his penis.
The prosecutor, too, misstated the record. As previously indicated, there was no evidence that M.C. slept or feigned sleep between sexual assaults. The prosecutor also suggested the trial court could consider conduct which occurred outside the car in determining whether to impose full term, consecutive sentences. However, a review of the record indicates no evidence of any sexual conduct outside the car.
This court determined that “the sentencing court erred by imposing mandatory full, consecutive sentences pursuant to section 667.6, subdivision (d) on counts 1 and 2. The court erred because it erroneously believed that, between the commission of the sexual assaults, M.C. (1) slept and then awoke, and (2) feigned sleep. It was based on those erroneous beliefs that the sentencing court concluded that [Alvarado] had a ‘reasonable opportunity to reflect’ within the meaning of section 667.6, subdivision (d).” (People v. Alvarado, supra, B178322.) Moreover, the error was prejudicial. Citing People v. Eckley (2004) 123 Cal.App.4th 1072, 1080, we determined “ ‘[a] court’s reliance, in its sentencing and probation decisions, on factually erroneous sentencing reports or other incorrect or unreliable information can constitute a denial of due process.’ ” (Italics added.) Here, “the sentencing court based its determination to impose mandatory, full consecutive sentences . . . on factual misstatements causing an erroneous impression of [Alvarado’s] legal status, that is, that he was a person who committed sexual crimes on ‘separate occasions’ within the meaning of section 667.6, subdivision (d). [T]he sentencing court’s error violated [Alvarado’s] right to due process. [Citations.]” (People v. Alvarado, supra, B178322.)
In remanding the matter for resentencing, we expressed “no opinion whether, as to counts 1 and 2, [Alvarado’s convictions of committing a forcible lewd act upon a child under the age of 14,] the sentencing court should impose mandatory full, consecutive sentences pursuant to section 667.6, subdivision (d), impose full consecutive sentencing in the exercise of the court’s discretion pursuant to section 667.6, subdivision (c), or impose sentencing pursuant to section 1170.1.” (People v. Alvarado, supra, B178322.)
c. Sentencing after remand.
Resentencing proceedings were held on May 16, 2006. At that time, the trial court made the following comments: “[T]he Court of Appeal found that this court had misstated the record, misstated the facts and that the facts in the trial did not compel a finding under 667.6(d). That is the mandatory consecutive sentence. [¶] So the issue is whether I should make the sentence consecutive, make count 2 consecutive pursuant to 667.6(c). That is the discretionary part of 667.6. And the court looks to [California Rules of Court,] rule 4.425 in seeking guidance on whether it should be concurrent or consecutive. And the court notes that under 4.425 of the Rules of Court . . . that . . . any circumstance . . . in aggravation or mitigation may be considered in deciding whether to impose consecutive rather than concurrent sentences.”
The trial court then imposed sentence, stating, “So, as to count 1 [Alvarado] is sentenced to the mid term of 6 years in state prison. [¶] As to count 2 [Alvarado] is sentenced to 6 years in state prison. That sentence will run full and consecutive. [¶] Court makes that consecutive because it finds factors in aggravation. Court finds that the victim was particularly vulnerable because she was 11-years-old at the time of [Alvarado’s] assault. [¶] Court further finds that he has a prior conviction for a similar offense, that is . . . unlawful sex with a minor. That . . . conviction was recent. It was in May of 2000. This offense occurred in December of ‘03. Indeed, he had just gotten off probation on the unlawful sex with a minor charge. [¶] Court also finds that [Alvarado] was in a position of trust. He indeed had the child in his care that night. Took her to a party, some type of bizarre transvestite party, and then took her to a location where he secreted the keys to the car and had her go into the back seat where he committed his assault. [¶] Court finds that those three factors are factors in aggravation and thereby [sic] to impose a consecutive term as to count 2. Court is using those same factors to make that consecutive term full and consecutive.”
The trial court then imposed a consecutive term of one-third the middle term, or eight months, for Alvarado’s conviction of making criminal threats. The court stated it was imposing a consecutive term because the crime involved “a separate action, [an] independent objective.” For Alvarado’s conviction of child abuse, the court imposed a term of four years in prison, then stayed the term pursuant to section 654. In total, the trial court sentenced Alvarado to 12 years, eight months in prison.
Section 654 provides in relevant part: “An 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. . . .”
CONTENTIONS
Alvarado contends: (1) “the trial court did not articulate sufficient reasons to impose a fully consecutive sentence pursuant to . . . section 667.6 which is to be reserved for the ‘more serious sex offenders[;]’ ” and (2) “the full consecutive sentence imposed pursuant to Penal Code section 667.6, subdivision (c) must be vacated because [he] was denied his rights to jury trial and proof beyond a reasonable doubt, as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Apprendi v. New Jersey (2000) 530 U.S. 466, Blakely v. Washington (2004) 542 U.S. 296 . . ., and United States v. Booker (2005) 543 U.S. 220 . . . .”
DISCUSSION
1. The trial court properly imposed full term, consecutive sentences pursuant to section 667.6, subdivision (c).
Section 667.6, subdivision (c) provides in relevant part: “In lieu of the term provided in Section 1170.1, a full, separate, and consecutive term may be imposed for each violation of an offense specified in subdivision (e) [, including the commission of a forcible lewd act upon a child under 14 years of age,] if the crimes involve the same victim on the same occasion. A term may be imposed consecutively pursuant to this subdivision if a person is convicted of at least one offense specified in subdivision (e). . . .”
“[T]he decision to sentence under section 667.6, subdivision (c) is a ‘sentence choice’ for which reasons must be stated.” (People v. Belmontes (1983) 34 Cal.3d 335, 347.) “This does not mean that the reasons justifying full term consecutive sentencing under section 667.6, subdivision (c) must necessarily be different than those used to justify the imposition of consecutive sentences under section 1170.1. The criteria listed in rule [4.426] – which . . . incorporates those of rules [4.421, 4.423 and 4.425] – apply to both decisions and cover all degrees and nuances of depravity. What is required is an identification of the criteria which justify use of the drastically harsher provisions of section 667.6, subdivision (c).” (Id. at p. 348, fn. omitted.)
Here, the trial court referred to no circumstances in mitigation and stated three reasons in aggravation: (1) that the victim was particularly vulnerable because she was only 11 years old at the time of the assault, (2) that Alvarado had a recent prior conviction for a similar offense, unlawful sex with a minor, and (3) that Alvarado took advantage of a position of trust to commit the crimes. (See Cal. Rules of Court, rule 4.421, subds. (a)(3), (a)(11), & (c).)
We initially note that the first criteria relied on by the trial court was improper. As the People concede, under California Rules of Court, rule 4.425, subdivision (b)(3), “[a] fact that is an element of the crime may not be used to impose consecutive sentences.” Here, Alvarado was convicted of committing forcible lewd acts upon a child under 14 years of age. Accordingly, M.C.’s youth could not be relied upon as a factor in aggravation.
However, the trial court also stated as reasons for imposing consecutive terms that Alvarado had recently been convicted of a similar crime, unlawful sex with a minor, and that he had taken advantage of a position of trust in order to commit the offenses. Either one of these reasons adequately supports the imposition of full term, consecutive sentences. (See People v. Brown (2000) 83 Cal.App.4th 1037, 1043 [“California courts have long held that a single factor in aggravation is sufficient to justify a sentencing choice . . . .”].) A review of the record indicates that in May of 2000, Alvarado was convicted of having unlawful sex with a minor. Moreover, the trial court indicated Alvarado had just completed a term of probation for that offense when he committed the present assault. In addition, the record supports the finding Alvarado took advantage of a position of trust in order to commit the forcible lewd acts upon M.C. The victim had been entrusted to his care for the evening.
Alvarado argues that, although there may be some valid circumstances in aggravation and the trial court found no circumstances in mitigation, the trial court nevertheless erred because imposition of sentence pursuant to section 667.6, subdivision (c) should be reserved for “more serious sex offender[s],” of which he is not one. We beg to differ. Alvarado has been convicted of two sexual offenses, both of which involved minors. One who targets children for such offenses can readily be considered a more serious sex offender. (See e.g. Fredenberg v. City of Fremont (2004) 119 Cal.App.4th 408, 416-417 [Under “Megan’s Law,” offenders have been categorized as “high-risk, serious and ‘other.’. . . [A] serious sex offender [is] one convicted of certain offenses, including child molestation, who does not have the aggravated criminal record sufficient to qualify him as a high-risk offender.”].)
2. Imposition of full, consecutive sentences did not violate Alvarado’s right to a jury trial or deny him due process of law.
Citing Blakely v. Washington, supra, 542 U.S. 296 (Blakely), Alvarado contends imposition of full consecutive sentences violated his Sixth Amendment right to a jury trial and his right to due process of law.
Initially, the People assert Alvarado forfeited any right to challenge the full, consecutive sentences because he failed to object to their imposition in the trial court. The contention is without merit. In People v. Sandoval (2007) 41 Cal.4th 825, 837, fn. 4, citing People v. Welch (1993) 5 Cal.4th 228, 237-238, the court indicated an objection in the trial court is not required if the objection would have been futile. At the time Alvarado was resentenced, the California Supreme Court’s decision in People v. Black (2005) 35 Cal.4th 1238 (Black I) governed. In Black I, the court determined the judicial fact finding which occurred when a judge exercised discretion to impose an upper term or consecutive sentence did not implicate a defendant’s right to a jury trial. (Id. at p. 1244.) Since the trial court was bound by the Black I decision (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 456), trial counsel cannot be faulted for failing to have objected to the imposition of the full, consecutive terms on the ground the jury should have found the aggravating factors beyond a reasonable doubt. (People v. Sandoval, supra, 41 Cal.4th 825, 837, fn. 4.) Such an objection would have been futile.
In Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856, 860] (Cunningham) the court, relying on its decisions in Apprendi v. New Jersey, supra, 530 U.S. 466 (Apprendi) and Blakely, determined “the Federal Constitution’s jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum, [or middle term,] based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant.”
Here, the trial court imposed “full,” middle term, six year sentences for Alvarado’s convictions of committing a lewd act upon a child under the age of 14. Since the court imposed mid-term sentences, no additional factual findings were required and the court’s decisions in Cunningham and Blakely were not implicated.
As to the trial court’s order the terms are to run consecutively, we look to the court’s decision in People v. Black (2007) 41 Cal.4th 799 (Black II). There, the court indicated that, “[i]n deciding whether to impose consecutive terms, the trial court may consider aggravating and mitigating factors, but there is no requirement that, in order to justify the imposition of consecutive terms, the court find that an aggravating circumstance exists. (See § 669; Cal. Rules of Court, rule 4.425(a), (b).) Factual findings are not required. In imposing an upper term, the court must set forth on the record ‘facts and reasons’ (§ 1170, subd. (b)), including the ‘ultimate facts that the court deemed to be circumstances in aggravation’ (Cal. Rules of Court, rule 4.420(e).) But it need only cite ‘reasons’ for other sentencing choices (§ 1170, subd. (c)) and the reasons given for imposing a consecutive sentence need only refer to the ‘primary factor or factors’ that support the decision to impose such a sentence [citations].” (Black II, supra, 41 Cal.4th at p. 822.)
The rationale employed by the court in Black II with regard to the imposition of consecutive sentences under sections 1170 and 669 applies equally to consecutive sentences imposed pursuant to section 667.6, subdivision (c) and California Rules of Court, rule 4.426. Rule 4.426(b) provides in relevant part that “[a] decision to impose a fully consecutive sentence under section 667.6 (c) is an additional sentence choice that requires a statement of reasons separate from those given for consecutive sentences, but which may repeat the same reasons. The sentencing judge is to be guided by the criteria listed in rule 4.425, which incorporates rules 4.421 and 4.423, as well as any other reasonably related criteria as provided in rule 4.408.” (Italics added.) No factual findings are required; the court need only cite “reasons” for its sentencing choice.
We note that on August 8, 2007, in case number S152523, the California Supreme Court granted review of People v. Diaz, previously published at 150 Cal.App.4th 254 (Diaz). In Diaz, the court considered whether Cunningham, Blakely and Apprendi applied to sentences imposed pursuant to section 667.6, subdivision (d).
The Black II court noted that “[t]he high court’s decision in Cunningham does not call into question the conclusion [the California Supreme Court] previously reached regarding consecutive sentences. The determination whether two or more sentences should be served in this manner is a ‘sentencing decision[] made by the judge after the jury has made the factual findings necessary to subject the defendant to the statutory maximum sentence on each offense’ and does not ‘implicate[] the defendant’s right to a jury trial on facts that are the functional equivalent of elements of an offense.’ [Citation.] Accordingly, [the California Supreme Court] . . . conclude[d] that [a] defendant’s constitutional right to jury trial [is] not violated by the trial court’s imposition of consecutive sentences . . . .” (Black II, supra, at p. 823.) With regard to the present case, neither Cunningham, Blakely nor Apprendi call into question the conclusion that imposition of full term, consecutive sentences fails to implicate a defendant’s Sixth Amendment right to a jury trial or due process of law.
DISPOSITION
The judgment is affirmed.
We concur: KLEIN, P. J., ALDRICH, J.