Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County Super.Ct.No. FVI014097. John P. Vander Feer, Judge.
John Ward, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Jeffrey J. Koch, Supervising Deputy Attorney General, and Scott C. Taylor, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
MILLER, J.
Defendant Kenneth Homer Bray was charged with one count of lewd act on a child D.B. and one count of lewd act on a child S.B. (Pen. Code, § 288, subd. (a)), one count of child abuse on B.B. (§ 273a, subd. (a)), two counts of indecent exposure (§ 314.1), and two counts of failing to register as a sex offender. (§ 290, subd. (g)(2).) Also charged were defendant’s two prior strike convictions (§§ 667 subds. (b)-(i), 1170.12, subds. (a)-(d)), and two prison priors. (§ 667.5.)
All further statutory references will be to the Penal Code unless otherwise indicated.
After a jury trial, defendant was found not guilty of the two indecent exposure counts and guilty on all other counts. After a court trial on the priors, the trial court found the prior conviction allegations true. Defendant was sentenced to 81 years to life in state prison for the lewd acts and child abuse offenses, and a consecutive determinate term of three years eight months on the “failure to register” counts.
On appeal, defendant argues that his trial attorney rendered ineffective assistance because he failed to make a motion to sever the sexual and physical abuse charges from the failure to register charges. He also argues that the trial court violated Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi) when it imposed an upper term and a consecutive without a unanimous jury finding the aggravating factors beyond a reasonable doubt. Finding no error, we reject defendant’s claims and affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
Between May 20, 2001, and June 20, 2001, defendant’s three children D.B., S.B., and B.B. lived with him in a small trailer next to their paternal uncle’s house.
On June 20, D.B. suffered an asthma attack caused by a gas leak outside the trailer, so defendant gave her an inhaler and told her to lie on her back in his bed. After smoking a cigarette outside, defendant returned and began rubbing D.B.’s stomach, placed his hands into her pants and touched her vagina. As D.B. lay on her right side pretending to be asleep, defendant faced D.B.’s back, put his leg over her, and “humped her” from behind. She was wearing bike shorts and felt his hard penis on her buttocks. Defendant, naked from the waist down, then turned D.B. onto her back, spread her legs, mounted her, and moved up and down on top of her. Defendant tried to remove her bike shorts, but was only able to pull them down to her hips. D.B., still pretending to be asleep, moved back onto her side and she heard defendant whisper “shit.”
The next day, D.B. reported the molestation to school authorities. San Bernardino County Department of Child Services (CPS) was summoned and D.B. and S.B. were taken into custody. The following day, B.B. was taken into custody.
S.B. first revealed that defendant had molested her, to her brother and sister, approximately one month after the children were placed in a foster home. She said that while she lived in defendant’s trailer, she would sleep in the back of the trailer in defendant’s bed. Defendant had touched her breasts and vagina; on more than one occasion, defendant applied baby oil to his penis and then inserted his penis into her vagina.
B.B. had lived with his father in the trailer for the 2000-2001 school year. During the course of that year, defendant physically abused B.B. on several occasions. When B.B. expressed a preference to live with his mother, defendant grabbed his arm and shoved him down the stairs outside the trailer. On three or four occasions, defendant would discipline B.B. by holding a steak knife to B.B.’s testicles and threatening him, yelling, “If you don’t stop acting up, I’m going to cut your testicles off.” At another time, defendant was upset the children were playing in their uncle’s backyard, so he grabbed B.B. by the throat, lifted him up into the air so that his legs dangled, then shoved him into a pole and kicked him in the ribs.
On July 8, two weeks after the children were removed from defendant’s home by CPS, defendant moved into an RV trailer park. Sometime in July, defendant exposed his erect penis to a neighbor. On July 21, 2001, police were called out to the RV park to investigate a report that defendant exposed himself to some children in a pool. Both defendant and the RV trailer park manager told the sheriff’s deputy that defendant lived at the RV park. As defendant was being arrested, the manager told defendant to remove his trailer and belongings from the RV park when he got out of jail. When he was released from custody, defendant moved in with his mother, Pansy.
On August 29, 2001, the children were interviewed by a social worker at a hospital child assessment center. Each child separately recounted the sexual or physical abuse he or she suffered at the hands of defendant. As part of the investigation, a detective member of the child assessment team determined that defendant was a registered sex offender. The detective obtained and executed a search warrant for defendant’s mother’s home, and found defendant’s clothing and mail addressed to him.
DISCUSSION
A. Defense Counsel’s Failure to Bring a Severance Motion Did Not Prejudice Defendant.
Defendant contends that his trial counsel rendered ineffective assistance because counsel had failed to make a motion requesting severance of the two failure-to-register offenses (counts 6 and 7) from the other charges, asserting that the failure-to-register offenses had nothing to do with the lewd acts and the child abuse. Defendant maintains that a motion to sever would have been meritorious, and there could have been no tactical reason for counsel’s failure to bring a severance motion. Defendant also claims that trial counsel’s failure to request severance prejudiced him as it allowed the prosecutor in her closing argument to repeatedly highlight his status as a registered sex offender who “commit[ed] sexual offenses in the community [by] committing offenses on his two daughters and exposing himself to his neighbor.”
To establish inadequate legal representation, defendant must show (1) under prevailing professional norms, his counsel’s performance was deficient because it fell below an objective standard of reasonableness, and (2) prejudice resulted from counsel’s act or omission. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-692 (Strickland).) Prejudice will be found if there is a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (In re Sixto (1989) 48 Cal.3d 1247, 1257, citing Strickland, at p. 694.) A defendant must also show that counsel’s act or omission was not attributable to a tactical decision which a reasonably competent, experienced criminal defense attorney would make. (People v. Gurule (2002) 28 Cal.4th 557, 611.)
When an ineffective assistance claim can be resolved solely on lack of prejudice, a reviewing court need not determine whether counsel’s performance was objectively deficient. (Strickland, supra, 466 U.S. at pp. 697, 699-700, In re Cox (2003) 30 Cal.4th 974, 1019-1020; People v. Boyette (2002) 29 Cal.4th 381, 430-431.) “If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.” (Strickland, at p. 697; In re Cox, at pp. 1019-1020.)
We turn to an analysis of the merits of a severance motion.
Obviously, a severance motion would normally be raised prior to trial. Before charges may be severed at the superior court level, a defendant has the burden to make a substantial showing of prejudice that requires the charges be tried separately. (People v. Arias (1996) 13 Cal.4th 92, 127.)
In this instance, however, defendant is raising the issue that a severance motion should have been made prior to trial, but we now are weighing the merits of a pretrial severance motion retrospectively on appeal. The test for an appellate court’s weighing the merits of a severance motion on appeal is different from the test for the trial court’s weighing the merits of a severance motion. On appeal, a defendant must establish that the joining of charges actually resulted in “gross unfairness,” amounting to a denial of due process. (People v. Arias, supra, 13 Cal.4th at p. 127.)
The question then arises whether defendant now has the burden to prospectively prove a “substantial showing of prejudice,” as he would have had to before a trial judge. Or does defendant have to retrospectively prove that the joining of charges actually resulted in “‘gross unfairness,’ amounting to a denial of due process”? (People v. Arias, supra, 13 Cal.4th at p. 127.) As between the two tests of “substantial prejudice” and “gross unfairness,” we apply the lower burden of proof that inures to the defendant’s favor—that of “substantial prejudice.”
In assessing a severance motion at the trial level, a trial judge must consider the following factors when determining whether to grant a severance motion: “(1) the cross-admissibility of the evidence in separate trials; (2) whether some of the charges are likely to unusually inflame the jury against the defendant; (3) whether a weak case has been joined with a strong case or another weak case so that the total evidence may alter the outcome of some or all of the charges; and (4) whether one of the charges is a capital offense, or the joinder of the charges converts the matter into a capital case. [Citation.] [¶] . . . Although cross-admissibility ordinarily dispels any inference of prejudice [citation], the absence of cross-admissibility does not by itself demonstrate prejudice. [Citation.]” (People v. Mendoza (2000) 24 Cal.4th 130, 160-161.)
As this is a noncapital case, the fourth factor is not applicable here. Applying the other factors, we find that the evidence was cross-admissible as it involved the same evidence and witnesses. However, in weighing the second factor, we find that it was unduly inflammatory against the defendant for the prosecution to try the lewd act offenses with the registration offenses. The fact that defendant was a registered sex offender could inflame a jury’s passions and perceptions; if defendant became a registered sex offender because he committed a sex crime in the past, it is more likely that a jury could be improperly influenced by learning that he was a sex offender, and find that he committed the sex acts because he was a registered sex offender. Thus, we conclude that a motion to sever the registration offenses would have been meritorious.
But under Strickland, defendant must still prove that the result of the proceeding would have been different but for counsel’s unprofessional errors. (In re Sixto, supra, 48 Cal.3d at p. 1257, citing Strickland, supra, 466 U.S. at p. 694.) Even if the severance motion had been granted and the registration offenses had been tried separately, the result would not have changed—defendant would still have been convicted on the registration and abuse offenses.
With respect to the allegation that defendant failed to register his residence at the RV trailer park, defense counsel admitted the truth of that allegation in his closing argument. He said, “Count 6 is the failure to register at the Adelanto RV park. The evidence is clear, he signed a rental agreement. He moved there and was there for almost two weeks and did not register with the Adelanto Police Department. There’s really nothing else I can say.” Thus, defendant was not prejudiced by the failure to sever count 6 because the result would have been the same—defendant would still have been found guilty.
With respect to count 7’s allegation that defendant failed to register his residence at his mother’s home, defense counsel admitted two of section 290’s elements in his closing argument. Counsel conceded that defendant regularly lived at his mother’s address on weekends and also conceded that defendant did not register this second address. However, he disputed the third element—that defendant did not have actual knowledge that he had an obligation to register his other addresses. There was overwhelming evidence that defendant did have actual knowledge of the requirement to register all addresses where he resided. A sheriff’s department clerk testified that she was the custodian of the section 290 sexual offender registry. She witnessed defendant sign his initials to a registration receipt that outlined his responsibilities. His initials on the form indicated that he resided at his brother’s address and did not live at any other address.
As to the sexual and physical abuse charges, defendant would have been convicted of those counts, even if they had been severed from the registration counts. All three children testified regarding the details surrounding their abuse. D.B. testified that she could feel defendant’s penis on her buttocks. S.B. testified defendant penetrated her vagina with his penis more than once. S.B.’s molestation was corroborated by medical findings that she had a very small amount of hymen as a result of chronic penetration and her vaginal tissues looked thickened and unhealthy. B.B. testified that his father grabbed, shoved, and kicked him on some occasions and threatened him with a knife on other occasions.
As there was no reasonable probability the result would have been different, defendant cannot show that he suffered prejudice from counsel’s failure to make a severance motion to try the failure to register charges separately from the other counts. As defendant has not shown he was prejudiced by his trial counsel’s failure in bringing a severance motion, we hold that defendant has not met his burden to prove trial counsel rendered ineffective assistance.
B. Defendant Was Properly Sentenced to Consecutive and Upper Terms.
The trial court sentenced defendant to the upper term of three years on count 6 for failing to register his move to the RV trailer park. Citing California Rules of Court, rule 4.421, aggravating factors (b)(2) and (b)(3), the court found defendant suffered prior convictions which were numerous and of increasing seriousness, and that he served two prior prison terms, and found no factors in mitigation.
All further rule references will be to the California Rules of Court unless otherwise indicated.
For failing to register his move to his mother’s house on count 7, the trial court imposed one third the midterm—eight months—consecutive to count 6. The trial court based its sentencing on the aggravating factor that defendant posed a serious danger to society based on his violent conduct pursuant to rule 4.421(b)(1).
Defendant contends that the trial court should have imposed the midterm on count 6, and run count 7 concurrently. We address each of defendant’s claims in turn.
1. Imposition of the Upper Term.
Recently in People v. Black (2007) 41 Cal.4th 799, 813 (Black) the California Supreme Court held that a defendant’s criminal history rendered him eligible for the upper term sentence under section 1170, subd. (b) determinate sentencing law. (Id. at pp. 813, 818.) The court noted the United States Supreme Court has consistently said the right to a jury trial does not apply to the fact of a prior conviction, citing Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856, 868], Blakely v. Washington (2004) 542 U.S. 296, 301; Apprendi, supra, 530 U.S. at p. 490, and Almendarez-Torres v. United States (1998) 523 U.S. 224, 243 (Almendarez-Torres). “[R]ecidivism . . . is a traditional, if not the most traditional, basis for a sentencing court’s increasing an offender’s sentence.” (Almendarez-Torres,at p. 243; Black, at p. 818.)
In this instance, defendant suffered two prior convictions. Rule 4.421(b)(2) specifies that it is an aggravating circumstance that “defendant’s prior convictions . . . are numerous or of increasing seriousness.” The fact that defendant had at least one prior conviction made him subject to the imposition of the upper term. As long as there exists a single aggravating factor that renders a defendant eligible for the upper term, that single circumstance is sufficient to impose the upper term. (Black, supra, 41 Cal.4th at pp. 813, 816.)
The trial court’s finding that defendant’s prior convictions were numerous and of increasing seriousness, is part and parcel of a court’s inherent power to impose increased punishment for a prior conviction. “The determinations whether a defendant has suffered prior convictions, and whether those convictions are ‘numerous or of increasing seriousness,’ . . . require consideration of only the number, dates, and offenses of the prior convictions alleged. The relative seriousness of these alleged convictions may be determined simply by reference to the range of punishment provided by statute for each offense. This type of determination is ‘quite different from the resolution of issues submitted to a jury, and is one more typically and appropriately undertaken by a court.’ [Citation.]” (Black, supra, 41 Cal.4th at pp. 819-820, fn. omitted.) The fact that a prior conviction occurred allows a trial court to assess related issues regarding the nature of the conviction that may be determined by those records, including whether those convictions were numerous or serious. (Id. at p. 819; People v. McGee (2006) 38 Cal.4th 682, 704.) In this instance, the upper term was appropriately imposed because the trial court could properly find defendant’s prior convictions were numerous and increasingly serious.
2. Consecutive Sentencing.
Defendant also contends that imposition of a consecutive term violated his Sixth Amendment right to have a jury find the aggravating factor true beyond a reasonable doubt.
A trial court’s imposition of consecutive sentences does not violate a defendant’s Sixth Amendment right to jury trial. (Black, supra, 41 Cal.4th at p. 821.) In deciding whether to impose consecutive terms, a 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; 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’ [citation], including the ‘ultimate facts that the court deemed to be circumstances in aggravation’ [citation]. But it need only cite ‘reasons’ for other sentencing choices [citation], 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, supra, 41 Cal.4th at p. 822.) Consequently, the trial court’s imposition of a consecutive sentence did not violate defendant’s Sixth Amendment right to a jury trial.
DISPOSITION
The judgment is affirmed.
We concur: HOLLENHORST, Acting P.J., RICHLI, J.