Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. NA047579, Joan Comparet-Cassani, Judge. Affirmed.
Marylou Hillberg, 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, Senior Assistant Attorney General, Lance E. Winters, Supervising Deputy Attorney General, and Mary Sanchez, Deputy Attorney General, for Plaintiff and Respondent.
COOPER, P.J.
This sentencing appeal is before us for the third time, following the United States Supreme Court’s remand, with directions to reconsider the appeal in light of Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856] (Cunningham). The issues are whether the aggravation of appellant Michael Bell’s principal term sentence, based on the trial court’s finding that the crime involved great violence, violated appellant’s Sixth and Fourteenth Amendment right to jury trial, and if so whether the deprivation was harmless beyond a reasonable doubt. We conclude, as we did before, that the upper term sentence was unconstitutionally imposed. We further find, however, that the error was harmless. We therefore affirm the judgment.
BACKGROUND
A jury convicted appellant of kidnapping to commit rape or robbery (Pen. Code, § 209, subd. (b)(1); undesignated section references are to that code), three counts of robbery (§ 211), three counts of forcible rape (§ 261, subd. (a)(2)), two counts of forcible oral copulation (§ 288a, subd. (c)(2)), and one count of assault with a firearm (§§ 245, subd. (a)(2)), with findings that he committed the sex offenses during the commission of a residential burglary (§ 667.61, subd. (e)(2)), that he personally used a firearm in committing those offenses and in committing the kidnapping and two of the robberies (§§ 667.61, subd. (e)(4), 12022.5, subd. (a)(1), 12022.53, subd. (b)), and that a principal was armed in the commission of the assault (12022, subd. (a)(1)).
Except for the assault and one of the robberies, which involved another victim, the offenses were all committed when appellant and an unidentified accomplice entered the Torrance home of E. M. and her eight-year old son. Appellant or his accomplice initially said, “I’m going to kill you.” The accomplice pointed a handgun at Ms. M’s son, and demanded to know where her money was. She told him to take it. Appellant proceeded to commit the majority of the five sex offenses, against Ms. M., most of them at gunpoint and within range of her son. Appellant also robbed Ms. M. at gunpoint of gold jewelry she was wearing. When appellant’s accomplice said he would take Ms. M. away with them, in her car, appellant told him not to forget the television in the son’s room. The accomplice took it, and carried it to the car at the curb, in procession with Ms. M. and appellant. When the accomplice tried to put the television in the car, Ms. M. ran and escaped. Appellant and his accomplice departed the scene in her car, leaving the television in the street.
Appellant was initially sentenced to 53 years to life, plus life for the aggravated kidnapping. The court chose count 2, the robbery of Ms. M.’s son (of his television), as the principal determinate term, and imposed the upper term of six years (§ 213, subd. (a)(1)(B)), giving as reasons that the crime involved great violence and a high degree of cruelty and viciousness. The court referred to other factors in aggravation in imposing consecutive sentences.
On appeal, we affirmed the judgment, with two modifications. First, we modified the kidnapping conviction to one of attempted aggravated kidnapping (§§ 664/209, subd. (b)(1)). Second, we ordered stricken the principal-armed enhancement on the assault count (see § 12022, subd. (a)(1), former § 1170.1, subd. (a)), and we also directed that on resentencing, the sentence on that count be stayed, under section 654. (People v. Bell (July 31, 2003) B158891 [nonpub. opn.].)
On resentencing, the court imposed terms aggregating to 54 years to life. The court again chose count 2 as the principal determinate term, and imposed the upper term of six years, plus a 10-year firearm use enhancement under section 12022.53, subdivision (b). The court stated that “The reason I chose the high term is because of the great violence involved in the underlying crime.”
Appellant appealed from the sentence. Applying the then recently-decided Blakely v. Washington (2004) 542 U.S. 296, we initially held that enhancement of the term on count 2, based on an aggravating factor that had been determined by the court not the jury, rendered that portion of the sentence constitutionally improper. We directed resentencing, in accordance with Blakely.
We rejected appellant’s contention that his consecutive sentences were improper under Blakely, as well as three fragmentary contentions that appellant had personally submitted under People v. Wende (1979) 25 Cal.3d 436, 437.)
The California Supreme Court granted respondent’s petition for review. After deciding People v. Black (2005) 35 Cal.4th 1238, the Supreme Court transferred the case to us with directions to reconsider our decision in light of that decision. Black held in essence that California’s system of upper-term and consecutive sentencing did not run afoul of Blakely, supra, 542 U.S. 296, and related cases. Accordingly, we rendered a new decision, affirming appellant’s sentence.
Thereafter in Cunningham, supra, 127 S.Ct. 856, the United States Supreme Court determined that California’s provisions for upper term sentencing, based on aggravating findings made by the trial court by a preponderance of the evidence, violated the constitutional right to jury trial, as previously expounded in Blakely, supra, 542 U.S. 296, and other cases. In the process, Cunningham disapproved the contrary analysis in Black, supra, 35 Cal.4th 1238. (Cunningham, 127 S.Ct. at pp. 868-871.) The high court then granted appellant’s petition for certiorari, and remanded the appeal to us for reconsideration in light of Cunningham. We requested and received supplemental briefs from the parties, concerning the effect, if any, on appellant’s sentence of not only Cunningham but also People v. Black (2007) 41 Cal.4th 799, cert. denied Jan. 14, 2008, __ U.S. __ [2008 WL 114084] (Black II) and People v. Sandoval (2007) 41 Cal.4th 825, (Sandoval) in which our Supreme Court articulated how sentences should be treated in view of Cunningham.
DISCUSSION
Appellant contends that the enhancement of his count 2 sentence based on a circumstance found by the trial judge and not the jury violated his right to jury trial, as analyzed in Cunningham and its predecessors. We agree that this is the necessary consequence of Cunningham, and respondent does not assert otherwise. Rather, respondent argues that the constitutional error should be found harmless beyond a reasonable doubt, because any reasonable jury would have found, as did the trial court, that the crime involved great violence.
Appellant no longer challenges his consecutive sentencing. In Black II, supra, 41 Cal.4th at pages 820-823, our Supreme Court reaffirmed, in light of Cunningham, the previous ruling in Black, supra, 35 Cal.4th 1238, that California’s consecutive sentencing system does not infringe the right to jury trial.
“The denial of the right to jury trial on aggravating circumstances is reviewed under the harmless error standard set forth in Chapman v. California (1967) 386 U.S. 18 . . . .” (Sandoval, supra, 41 Cal.4th at p. 838.) The test on review is whether this court can conclude, beyond a reasonable doubt, that the aggravating circumstance the trial court cited “would have been found true by the jury beyond a reasonable doubt . . . .” (Id. at pp. 840-841.)
We are satisfied that this determination may be made in this case. The offenses that appellant and his accomplice committed against Ms. M. and her son involved an unbroken span of atrocious violence. The eight-year-old victim first underwent a death threat, accompanied by having a pistol pointed at him. He then witnessed or heard the violent attacks on his mother, by two men sharing the gun. Throughout, and to the end, appellant and his accomplice used the great violence to rob first Ms. M. and then her son. Beyond a reasonable doubt, the jury would have found, by the same standard, that the robbery in count 2 involved great violence. The error under Cunningham, supra, 127 S.Ct. 856, was harmless.
DISPOSITION
The judgment is affirmed.
We concur: RUBIN, J., EGERTON, J.
Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section six of the California Constitution.