Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Los Angeles County Super. Ct. No. KA074959 Bruce F. Marrs, Judge. Affirmed in part; reversed in part and remanded for resentencing.
Michael Shultz, 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, Stephanie C. Breman and William H. Shin, Deputy Attorneys General, for Plaintiff and Respondent.
FLIER, J.
Appellant Najee Anthony Bright was charged in a seven count information with an assortment of crimes against his girlfriend, Kelly H. Count 1 allegedly occurred on May 3, 2006; the remaining counts all allegedly occurred the following day. The jury found appellant guilty solely of count 2, criminal threats (Pen. Code, § 422) with an enhancement for personal use of a deadly or dangerous weapon, a knife (Pen. Code, § 12022, subd. (b)(1)). He was acquitted of assault with a deadly weapon, a curtain rod (count 1). The jury was unable to reach a verdict on three counts of forcible rape (counts 3, 4 & 5) and two counts of forcible oral copulation (counts 6 & 7). Most of the jurors voted for acquittal on those counts. For the sustained criminal threats charge, appellant was sentenced to the upper term of three years in prison, plus one year for the enhancement. He had no prior criminal record, was not involved with gangs or drugs, and had been a star player on his high school football team.
Further statutory references are to the Penal Code unless otherwise stated.
Appellant contends: (1) There was insufficient evidence to establish the crime of criminal threats. (2) Since Kelly described several different statements, the trial court should have given a unanimity instruction. (3) The jury was inadequately instructed on causation. (4) Imposition of the upper term violated his Sixth and Fourteenth Amendment rights to jury trial and due process of law under Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856] (Cunningham).
We find merit only in the last issue, remand for resentencing, and otherwise affirm.
FACTS
1. Prosecution Evidence
We summarize Kelly’s entire testimony, as it places into context the evidence on criminal threats.
A. Background
For the nine or 10 months leading up to May 2006, Kelly and appellant were in an obsessive, off-and-on relationship, filled with cell phone calls and text messages. They were both 18 years old in July 2006, at the time of the trial.
Kelly and appellant met on an Internet website called “Myspace.” They first had sexual intercourse a day or two later, at their first meeting in person. According to Kelly, in the periods when she and appellant were together, they had sexual relations at his home four or five times a week. Their activities included oral copulation and sexual intercourse in a variety of positions, but did not involve physical abuse or “rough sex.”
During their brief periods of separation, Kelly and appellant dated other people. During one such period, Kelly contacted a man named Moses on Myspace and dated him. At the trial, she denied telling Moses that she “liked to have rough sex.”
During arguments, appellant and Kelly called each other offensive names. They had several violent encounters prior to May 2006. Sometimes, when she punched him she hurt him. She once punched him repeatedly on the arm after he took her cell phone. He did not hit her back. On another occasion, he called her a “bitch,” she punched him in the stomach, and he slapped her in the face. He did not hurt her or leave a mark. Another time, he held a fake gun at her head, asked her questions, and threatened to shoot her if she did not tell the truth. She did not know the gun was fake and was scared. The incident ended when she left. As she did so, appellant said he was going to use the gun on himself. Even so, according to Kelly, she was not concerned for her safety prior to May 3, 2006.
Further dates are in 2006 unless otherwise stated.
B. Kelly’s Description of the Events on May 3
Appellant and Kelly exchanged numerous text messages and telephone calls throughout the day. Kelly arrived at appellant’s home around 9:00 p.m., at his request, as he thought he had recontracted a sexually transmitted disease. His 10-year-old sister and his friend Edgar Ivan Arias were also there.
Appellant and Kelly walked upstairs together and entered appellant’s bedroom. Kelly sat on the bed and appellant leaned against a dresser as they discussed their relationship. Appellant became angry when Kelly told him she had called Moses. He threw her to the floor and began to manually strangle her, so that she could not breathe. He grabbed a curtain rod from the floor and choked her with it. When she tried to grab it, he pointed it at her like a spear. She yelled for help. Arias and appellant’s sister came to the bedroom’s door. Appellant talked to Arias briefly and closed the door. He dragged Kelly across the floor by her sweatpants causing her underpants to rip off. He lifted a nightstand over her and said he was going to smash her head in. She believed him. He went back to manually strangling her ignoring her attempts to calm him down. From the other side of the door, Arias yelled at appellant to let Kelly go.
The jury acquitted appellant of the count related to the curtain rod, which was the only crime charged for May 3.
Kelly and appellant then sat on the bed and talked. He told her she could leave, but he then prevented her from leaving. He grabbed an electrical cord and tried to wrap it around her neck. She stopped him. He told her that she had lied to him, she was not going to leave the room alive, and he was not afraid of going to jail. Finally, he walked out of the room. She then left the house and drove home.
Later that night, appellant and Kelly talked to each other to make sure they were both all right. Appellant apologized.
C. Kelly’s Description of the Events on May 4
On May 4, Kelly contacted appellant, first thing in the morning. They communicated back and forth 15 or 20 times. She went back to his home around 2:00 p.m., as he had agreed there would be “just talking.” They watched part of a movie, went together to pick up his paycheck from work, and returned to his home around 3:00 p.m. He became angry again and pushed her into his bedroom. He told his sister not to enter the room. He sat with Kelly on the bed where the argument continued. He then pulled out a long silver knife from the front of his pants. He had never done that before.
Appellant held the knife at Kelly’s back just enough for her to feel it. She tried to move the knife. He told her, “Don’t move or I’m going to put it through your back or through your stomach.” She said the knife was not needed in order for them to talk. He moved the blade and touched her throat with it. She grabbed it. He told her to be quiet and stop telling him lies. They wrestled to the floor. He ended up on top of her. He pointed the knife down at her and said, “I’m going to take you with me.” She thought he was going to kill both of them. He rolled over onto the ground, started to cry, and said, “Why are you doing this to me?” She kept telling him they could “just talk about it.” She had gone “into survival mode” and was doing whatever she could to leave. He put the knife down and began to strangle her with his hands by using a hard grip. She had trouble breathing and was frightened. She did not lose consciousness. He kept complaining about the lies she had told him. Then he used the crook of his elbow to strangle her while her face was on the floor. As he did so, he said, “Good night, Kelly.” To her, those words meant that she “was going to die.” She believed he could kill her and was scared that he would.
Despite the above testimony, Kelly testified on cross-examination that she did not think that appellant was going to kill her with the knife.
The foregoing testimony includes the threats that form the basis of count 2.
Kelly then testified that she managed to free herself. She and appellant stood up. She told him she needed to use the bathroom, to urinate and remove her tampon. He told her that he wanted her to urinate on herself. She said she would wait. He insisted. He went out of the room to get a sheet from the hall closet. She picked up his cell phone to dial 911, but he returned with the sheet and the knife. He asked her if she wanted to dial 911. Frightened, she said no. Pointing the knife at her, he ordered her to take her pants off, urinate on the sheet, and remove her tampon there. She did so. Then, while holding the knife in his hand, he forced her to orally copulate him as he hit her with his penis and slapped her. Still holding the knife, he forced her to bend over while he had sexual intercourse with her, while standing behind her. They then engaged in a variety of sex acts on the bed, while the knife lay on the dresser. Some of the acts involved reenacting what Kelly had done with Moses with and without a condom. While they were having sex on the bed, he pushed so hard it hurt her, spit on her face, punched her once in the stomach, and punched her once on the side. He said he did those things because she had lied to him. Her mind was on getting away as soon as possible.
Kelly and appellant knew that she had to leave at 4:45 p.m., to go home and get ready for work. Around 4:30 p.m., she broke off from having sex with him to take a call on her cell phone. The caller was Kelly’s mother, who did not know that Kelly was sexually active. Kelly’s mother reminded her that she needed to come home soon. She told her mother, “I’m on my way.” She did not say anything else because according to Kelly, she was afraid appellant would hurt her. After taking the call, she resumed having sex with him. He quickly ejaculated. Kelly got up, walked into the bathroom, cleaned herself with a washcloth, and brought the cloth back to appellant in the bedroom. She dressed, gave him a hug and a kiss, told him she loved him, and promised to call him before she drove to work. Then she left.
Kelly called her mother on her cell phone as she drove home. Crying, she said that appellant had hit her and hurt her, and she would explain what happened when she got home. Before she arrived there, she took a call from appellant. He said he acted the way he did because she did not respect him. She told him she did not want to be with him any more because she had to explain her bruises to her mother. She also told him that, whatever she had said or done, “you never hit a woman.”
When Kelly got home, she was shaky and crying. Her shirt was torn, there was a bruise near her eye, and she had marks all around her neck. She told her mother that appellant had hit her and strangled her. She showed her mother “dried matter” at her waistband. Her mother asked if appellant had raped her. She said yes. Kelly’s mother called the police and then took Kelly to the police station. Kelly made a statement to the police, identified appellant at his home, and was examined by a sexual assault nurse examiner at a hospital. Pictures were taken of her injuries. She had multiple recent bruises and abrasions on her face, neck, arm, back, and legs. Bruising and hemorrhaging to her eyes were consistent with strangulation. A vaginal tear was consistent with either forcible or consensual sex.
The police searched appellant’s home that same night. The knife was on the microwave in the kitchen. Other objects that Kelly described were in appellant’s bedroom.
D. Appellant’s Videotaped Statement
The jury watched the videotaped interview that appellant had with a police detective on May 5. It contained in culpatory and exculpatory facts.
Appellant said that he and Kelly had argued frequently in the past. She told him lies, had tantrums, swung objects at him, and hit him. Their relationship was primarily based on sex. Kelly looked innocent, but she was wild. She had fair skin that bruised easily. He was African-American. The first time they met, they had sex. The sex was painful for her that time only, but she told him to continue because she liked it. Over the ensuing months, they used sex to make up after arguments. Their arguments focused on who would have the most respect. They would see “who could bluff the most.” Kelly always won because she could hit him, and he could not hit her.
As to May 3, appellant said he and Kelly argued because he could not afford to take her to her senior prom. As they wrestled in his room, he held her down to keep her from hitting him. This was the first time he had held her down that way to subdue her. His version did not include strangling her or using a curtain rod.
According to appellant, Kelly kept calling him after she left on May 3. He did not pick up the phone. She began sending him text messages around 9:40 a.m. the next morning of May 4. She kept asking to come over to his house. He finally agreed. When she arrived, they drove together to pick up his check from work. After that, when they were alone together in his room, he saw her “balling her fist” preparing to hit him. He went into the kitchen and came back with a knife in his pants to prevent her from hitting him and to avoid another “tussling” incident. The knife was “bluffing” to protect himself and to intimidate her.
The calls were verified by Kelly’s cell phone records.
When he came back into the room, Kelly saw the knife and put her hands on it. He took it out of his pants. She grabbed an extension cord. They both pulled at the objects. At some point, as a bluff, he held the knife at his own chest and asked her if she wanted to kill him. He managed to jump on top of her and subdue her by holding his hands on her neck and shoulders. She hit him hard and tried to grab his arms. He kept telling her to stop hitting him. She finally was quiet. They had wrestled like that before, but their acts had not included a knife or his holding her by the neck. Appellant told the detective he knew he had gone too far, and he thought Kelly might want to file “domestic charges,” even though she had hit him, too.
Appellant said he asked Kelly if she wanted to leave or dial 911. She declined. She voluntarily asked him if he wanted her to orally copulate him. The “tussle” was over. The knife was on the dresser and had nothing to do with the sexual activities that ensued. He did not hold the knife at her neck and tell her to orally copulate him. He did not need to use a knife to have sexual relations with her. She could have left at any time. She orally copulated him. They kissed. He laid her down and removed her pants. She told him she needed to urinate and to take out her tampon. He told her to do that on the sheet because his sister was in the bathroom. She did so. A consensual sexual encounter ensued that included voluntary oral copulation and sexual intercourse in various positions with and without a condom. Part of the time they reenacted the sex acts that Kelly performed with Moses. He hit her and smacked her because that was what she liked.
Appellant further told the detective that Kelly’s mother called while they were “going at it.” Kelly got up, picked up the cell phone, and told her mother that she would be home soon. She hung up and resumed having sex with him on the bed. After the call, they both had orgasms during the next four minutes. She then got up, cleaned herself with a wash rag, dressed, and left.
The detective specifically asked appellant if he threatened Kelly during the incident. Appellant’s response was that a “crazy” thing about the relationship was the “stupid shit” they said to each other, “like if one of us left each other, the other person would like kill them. But not seriously in that bluntly manner. [sic] We wanted to be together so bad that like we would even say some stupid shit like that. Like to make a mark.”
E. The Expert on Battered Women’s Syndrome
After describing the characteristics of batterers and battered women, the expert testified that she would not necessarily call Kelly a battered woman.
2. Defense Testimony
Moses Hooper testified that Kelly contacted him on Myspace. They had a single sexual encounter that included oral copulation and vaginal sex. She told him that she liked “rough sex.” She wanted him to pull her hair and grasp her hips hard. After that, he decided they would simply be friends.
According to the police detective, Kelly said that she and appellant liked to “wrestle around,” but did not engage in physical abuse.
Arias testified that, when he was at appellant’s house on May 3, he did not think Kelly really needed help. Later, when Kelly left through the front door, she hugged Arias around the neck and asked him why appellant did not love her.
DISCUSSION
1. Sufficiency of the Evidence
Section 422 provides, in pertinent part: “Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, . . . is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family’s safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison.”
Appellant contends that there was insufficient evidence that Kelly experienced “sustained fear” or that her fear was caused by his armed threat.
Applying the appropriate standard of review (People v. Catlin (2001) 26 Cal.4th 81, 139), we find sufficient evidence that appellant violated section 422.
To prove a violation of section 422, “the People were required to show: (1) appellant willfully threatened to commit a crime that would result in death or great bodily injury; (2) he made the threat with the specific intent that it be taken as a threat; (3) the threat, on its face and under the circumstances in which it was made, was so unequivocal, unconditional, immediate and specific as to convey to the person threatened a gravity of purpose and an immediate prospect of execution of the threat; and (4) the threat caused the person threatened reasonably to be in sustained fear for his own safety.” (In re Ricky T. (2001) 87 Cal.App.4th 1132, 1136; see also 2 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Crimes Against Public Peace and Welfare, § 22, p. 525.)
“[T]hreats are judged in their context.” (In re Ricky T., supra, 87 Cal.App.4th at p. 1137.) Taken in their context, Kelly testified that appellant made the following threats on May 4:
(1) He held the knife against her back so that she could feel it. When she tried to move it, he said, “Don’t move or I’m going to put it through your back or through your stomach.”
(2) He held the blade against her throat, they argued, and they wrestled to the floor. He pointed the knife down at her and said, “I’m going to take you with me.” She believed from those words that he was going to kill both of them.
(3) He put the knife down, manually strangled her so that she had trouble breathing, and then continued strangling her with the crook of his elbow. At that point, he said, “Good night, Kelly.” That statement scared her, as she believed it meant he was going to kill her.
The above facts resemble those of People v. Allen (1995) 33 Cal.App.4th 1149, 1156, which found sufficient evidence of a criminal threat when the defendant told the victim that he was going to kill her and her daughter, and then pointed a gun at her chest. Appellant held the knife at Kelly’s back, pointed it at her, or strangled her as he made the threats. The evidence justified a finding that he intended his words to be taken as a threat, and his words caused Kelly to reasonably be in sustained fear for her safety. (Ibid.) We therefore find substantial evidence for the section 422 violation.
2. Unanimity Instruction
Appellant maintains that because Kelly described several different threats, and the prosecutor made no election among them, the trial court had a sua sponte duty to give a unanimity instruction, telling the jury that it had to unanimously agree that appellant committed the same criminal act. (People v. Melhado (1998) 60 Cal.App.4th 1529, 1534; People v. Salvato (1991) 234 Cal.App.3d 872; see also 5 Witkin & Epstein, Cal. Criminal Law, supra, Criminal Trial, § 645, p. 927.)
The contention lacks merit. “The unanimity instruction is not required when the acts alleged are so closely connected as to form part of one transaction.” (People v. Stankewitz (1990) 51 Cal.3d 72, 100; see also 5 Witkin & Epstein, Cal. Criminal Law, supra, Criminal Trial, § 646, p. 928.) The threats here occurred within minutes of each other, during the same incident in appellant’s bedroom. Appellant attempts to draw a distinction among them, on the ground he was not holding the knife when the third threat was made. That distinction is not convincing. According to Kelly, when appellant made the threats, he was either holding the knife or strangling her with his elbow with the knife close at hand. There was no reasonable basis for distinguishing between the threats, so there was no need for a unanimity instruction. Moreover, the lack of a distinction between the threats means there was no prejudice from the absence of a unanimity instruction, assuming arguendo that such an instruction should have been given. (People v. Stankewitz, supra, at p. 100.)
3. Causation Instruction
Appellant next argues that the trial court should have instructed sua sponte that his criminal threats had to be a “substantial factor” in bringing about the “sustained fear” that is an element of section 422. The contention lacks merit. The trial court has a sua sponte duty to instruct on the general principles of law that are closely and openly connected with the facts and are necessary for the jury’s understanding of the case. (People v. Breverman (1998) 19 Cal.4th 142, 154.) The jury was instructed on the requisite elements of the section 422 offense, including the requirement that “[t]he threatening statement caused the person threatened reasonably to be in sustained fear [for [his] [or] [her] own safety].” Kelly specifically testified that appellant’s statements caused her to have that fear. No further instruction was required.
4. Imposition of the Upper Term
There is merit in appellant’s contention about the upper term.
A. The Applicable Law
Blakely, supra, 542 U.S. 296 held that the statutory sentencing scheme of the State of Washington violated the defendant’s Sixth Amendment right to a jury determination of the facts that are essential to punishment, as the scheme permitted an increase in sentence based on a finding by the judge at the sentencing hearing, even though that fact had neither been admitted by the defendant nor found true by a jury. (Id. at pp. 298-305.) Blakely relied on this language from Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi): “ ‘Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.’ ” (Blakely, supra, at p. 301, quoting Apprendi, at p. 490.) It further held “that the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” (Blakely, supra, at p. 303.)
Under Cunningham, supra, 127 S.Ct. 856, it is the midterm of a determinate sentence law (DSL) sentence in California, and not the upper term, that constitutes the statutory maximum sentence. (Id. at p. 871.) Cunningham further held that the DSL violates a defendant’s Sixth Amendment right to a jury trial, because it gives the trial judge, and not the jury, the authority to find the facts that permit an upper term sentence. (Cunningham, at p. 871.)
In response to Cunningham, our Legislature revised the DSL, effective March 30, 2007. The Judicial Council then amended the sentencing rules to conform to the new version of the DSL. (See Cal. Rules of Court, rules 4.405-4.452.)
A new version of the statute will be effective January 1, 2009. (Stats. 2007, ch. 3, § 3.)
The California Supreme Court provided guidance on the meaning of Cunningham, in People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval).
Black II held that “imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (Black II, supra, 41 Cal.4th at p. 816.) The trial court had selected the upper term for the crime of continual sexual abuse of a child, based on “ ‘the nature, seriousness, and circumstances of the crime,’ ” including the defendant’s use of force. (Ibid.) Black II ruled that imposition of the upper term met the requirements of Blakely and Cunningham, based on these two circumstances in aggravation: (1) the defendant’s use of force, which the jury had found true, in the context of an allegation of ineligibility for probation under section 1203.066, subdivision (a)(1), and (2) the defendant’s prior criminal record. (Black II, at pp. 816-820.)
We recently relied on Black II in People v. Brock (2007) 155 Cal.App.4th 903, to affirm an upper term sentence, based on the defendant’s prior criminal record.
Appellant argues in the reply brief that portions of Black II are incorrect. We are required to follow Black II. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
The same day it decided Black II, which affirmed an upper term sentence, the Supreme Court decided Sandoval, supra, 41 Cal.4th at pages 838-843, which reversed an upper term sentence due to prejudicial Blakely error. Sandoval’s analysis of prejudice is particularly important for defendants without prior criminal convictions, such as the defendant in Sandoval and appellant in the case at bench.
The facts in Sandoval are somewhat unusual, as there were questions about the defendant’s exact role in the crime, due to disputes in the evidence and the jury’s guilt finding for lesser included offenses. The defendant, a woman, and her friend Romero, also a woman, were angry with the male victim, Rojas. A witness heard the defendant say that she would summon a gang to kill Rojas. The next evening, the defendant and Romero returned with a group of people. Two of the men in that group shot and killed Rojas and another man, and seriously injured a third. The defendant and Romero did not fire weapons and denied that a shooting had been intended. The actual shooters were convicted prior to the defendant’s trial. As to the defendant, the prosecution sought two verdicts of first degree murder and one of attempted premeditated murder. The jury returned two verdicts of voluntary manslaughter and one of attempted voluntary manslaughter.
The sentencing issue in Sandoval concerned imposition of the upper term on one of the counts of voluntary manslaughter. The trial court cited these factors in aggravation: “(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.)
Comparing those aggravating factors to the principles set forth in the Cunningham and Blakely decisions, Sandoval concluded: “None of the aggravating circumstances cited by the trial court come within the exceptions set forth in Blakely. Defendant had no prior criminal convictions. All of the aggravating circumstances cited by the trial court were based upon the facts underlying the crime; none were admitted by defendant or established by the jury’s verdict. We conclude, accordingly, that defendant’s Sixth Amendment rights were violated by the imposition of an upper term sentence.” (Sandoval, supra, 41 Cal.4th at pp. 837-838.)
Sandoval then went on to the issue of prejudice. It found the harmless error standard of Chapman v. California (1966) 386 U.S. 18, 24, to be the appropriate test. The critical issue 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.) “[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.) The reviewing court is also to keep in mind that the record may not contain all of the evidence that might have been presented on the issue of the aggravating circumstances, and the somewhat vague or subjective language in some of the circumstances may make it difficult to be confident about what the jury would have decided. (Id. at pp. 839-840.)
Sandoval then addressed the Attorney General’s contention that the evidence justified a conclusion, beyond a reasonable doubt, that the jury would have found each of the aggravating circumstances named by the trial court to be true. (Sandoval, supra, 41 Cal.4th at pp. 840-843.) Taking each of the aggravating circumstances in turn, based largely on disputes in the evidence, the court found reasons why it could not reach the conclusion requested by the Attorney General. Therefore, the Sixth Amendment error was not harmless, and a reversal for resentencing was necessary. (Sandoval, at pp.840-843.)
B. The Record
In response to Blakely, supra, 542 U.S. 296, the second amended information included five circumstances in aggravation. The prosecutor requested a jury instruction and verdict form about those circumstances in aggravation. The judge refused those requests.
They were that (1) the crime involved great violence or other acts disclosing a high degree of cruelty, viciousness or callousness (the viciousness factor); (2) appellant was armed with a weapon during the crime; (3) the crime was carried out with planning, sophistication, or professionalism; (4) the defendant took advantage of a position of trust or confidence to commit the offense; and (5) the defendant engaged in violent conduct, which showed a serious danger to society.
The preplea probation report summarized what Kelly told the police. It indicated that appellant was ineligible for probation due to the sex crime charges. It recommended the low base term in prison.
The preplea probation report listed these circumstances in aggravation: “1. The crime involved great violence, great bodily harm, threat of great bodily harm or other acts disclosing a high degree of cruelty, viciousness or callousness. [¶] 2. The defendant was armed with or used a weapon at the time of the commission of the crime. [¶] 3. The manner in which the crime was carried out indicated planning, sophistication and professionalism. [¶] 4. The defendant has engaged in violent conduct which indicates a serious danger to society.” As a circumstance in mitigation, the report cited appellant’s lack of prior criminal record.
Prior to and at the sentencing hearing, defense counsel argued that despite the finding that appellant was armed, the circumstances warranted a finding that this was an unusual case in which the interests of justice would best be served by a grant of probation (§ 1203, subd. (e)(2)). If the court was unwilling to make that finding, defense counsel sought a low term sentence based in particular on appellant’s youth, his lack of prior record, his lack of involvement with gangs or drugs, and the unlikelihood that he would repeat such a crime. Defense counsel pointed out that appellant would have a strike conviction for life, likely making him ineligible to pursue his plan of a military career. Numerous letters submitted on appellant’s behalf indicated that he had been a star running back on the high school football team, had been a role model for other students, and finished high school planning to enter military service. He was described by his high school counselor and football coach as conscientious, good-natured, respectful, well liked, and “a symbol of hard work and leadership.” Support was also shown by his parents, grandmother, pastor, and family friends.
In contrast, the prosecutor maintained that the crime justified an upper term sentence to prison and a requirement that appellant register as a sex offender. She argued that appellant planned to use the knife, as he procured it from the kitchen and hid it in his pants; he took advantage of a position of trust when he was alone with Kelly; he showed no remorse; and he acted throughout with a goal of intimidation.
Kelly attended the sentencing hearing. She read aloud a written statement, requesting the longest possible sentence. She initially missed school and work because of her injuries and mental health, but had improved, graduated high school, and returned to her job. She still was haunted by the crime, which caused sleep issues due to flashbacks, and sometimes gave her pain in her ribs. Most of all, she feared that appellant would hurt her or someone else if he were released.
The trial court recognized that it could place appellant on probation if it found this to be an “unusual case.” It had read all the documents that were submitted. It was particularly concerned with appellant’s use of the knife, which appellant himself admitted. The court tried to limit itself to facts that were included in the jury’s verdict, but then wrongly focused on the use of the knife in the “urination and tampon sequences,” since those events occurred after appellant’s last threat.
The court refused to find this to be an unusual case, because appellant “seriously used” the knife during the offense. It heard further argument from both counsel as to the appropriate prison sentence. Appellant’s father told the court that he believed appellant told the truth on the videotape. He wanted the court to know that appellant was a good son who had never been in any kind of trouble before.
The court then summarized the evidence, including the forced urination, even though that event occurred after the last threat, appellant’s “Good night, Kelly” statement. It gave these reasons for imposing the upper term:
“Applying the Rules of Court, the nature and the seriousness of the crime, 4.[4]21(a)(1), that sequence evinces cruelty, viciousness, and callousness.
“4.[4]21(a)(2), there was a knife involved.
“4.[4]21(a)(3), vulnerability, the victim was in the defendant’s bedroom behind a closed door. She told us she was just in survival mode, she just wanted to get out of there.
“4.[4]14(a)(4) [criteria affecting probation] I’m going to consider, physical, emotional injuries to the victim. The nurse, Kelly, and her mother all testified to physical damage that they observed on her. And I would submit that the mere fact of forced urination and the tampon being withdrawn in front of another individual would certainly seem to suggest emotional injury.
“We are required to look to see if there were any unusual circumstances, such as great provocation. I’m still at loss as to what provocation Kelly displayed.
“Planning, 4.[4]21(a)(8), the defendant went to the kitchen to get the knife. He had it in his pants.
“Therefore, all of these matters considered, probation is denied as to count 2, the 422. [¶] The court selects the high term of three years.”
C. Analysis
All of the factors in aggravation cited by the court related to the facts of the crime. The only factor found true by the jury was appellant’s use of a knife, through the finding that he was armed with a knife during the criminal threat (§ 12022, subd. (b)(1)). Respondent relies on that finding by the jury to support the upper term. It appears that since the jury found knife use to be true, that fact can be used for the upper term without violating the Sixth Amendment. (See Black II, supra, 41 Cal.4th at pp. 816-817) However, dual use of the fact of knife use is an entirely different problem, unrelated to the Sixth Amendment. Pursuant to section 1170, subdivision (b), “[t]he court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law.” (See Cal. Rules of Court, rule 4.420(c); 3 Witkin & Epstein, Cal. Criminal Law, supra, Punishment, § 256, p. 340.) Because appellant was given an enhancement for the knife, it could not be used to support the upper term, without violating the rule against dual use of facts.
The trial court also erred when it stated the ground for imposition of a consecutive sentence for the enhancement. It relied on California Rules of Court, rule 4.421(a)(11), which states: “The defendant took advantage of a position of trust or confidence to commit the offense.” That reason could not be used since the jury made no such finding. Also, we fail to see how a “position of trust” related to the facts of this case. However, the statement of the wrong reason does not matter since a consecutive sentence for the enhancement was mandatory, based on the language we italicize in section 12022, subdivision (b)(1): “Any person who personally uses a deadly or dangerous weapon in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for one year, unless use of a deadly or dangerous weapon is an element of that offense.” (Italics added.)
Although defense counsel did not object to use of the knife both as a factor in aggravation and as an enhancement, such an objection would have been futile, since the trial court simply would have used the remaining, inappropriate factors in aggravation to impose the upper term. Those factors were that the crime showed “cruelty, viciousness, and callousness,” Kelly was a vulnerable victim, she suffered physical and emotional injuries, and appellant’s procuring and hiding of the knife showed planning. All of them involved underlying facts that must either be admitted by the defendant or established by the jury’s verdict, under Sandoval, supra, 41 Cal.4th at pages 837-838. Since there was no such admission or verdict, use of those facts as circumstances in aggravation constituted a clear violation of Blakely.
We further find that the Blakely error was prejudicial. As in Sandoval, supra, 41 Cal.4th at pages 838-843, we are unable to conclude, beyond a reasonable doubt, that the jury, applying the reasonable doubt standard, unquestionably would have found at least one valid aggravating circumstance to be true, if that issue had been submitted to it. Here, as in Sandoval, the jury rejected much of the prosecution’s case, which makes it impossible to know what facts the jury actually found. Given the nature of appellant’s and Kelly’s relationship, the fact that the jury apparently did not accept all of Kelly’s testimony, and the jury’s inability to reach a verdict on most of the counts, we are not convinced that the jury necessarily would have found beyond reasonable doubt that Kelly was particularly vulnerable, that taking the knife from the kitchen showed planning, or the presence of other crime-related upper term factors. We therefore conclude that the Blakely error was prejudicial.
Appellant maintains that the appropriate remedy is a reduction of his sentence to the midterm, rather than a remand for resentencing, due to the protection against ex post facto laws and his right to due process of law. We reject his proposed remedy and remand for resentencing based on Sandoval, supra, 41 Cal.4th 825 at pages 853-858.
DISPOSITION
The judgment is reversed as to the sentence only and remanded to the trial court for resentencing. In all other respects, the judgment is affirmed.
We concur: COOPER, P. J. RUBIN, J.