Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Ct. No. TA085710, David Sotelo, Judge.
Robert M. Sweet, 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, Scott A. Taryle, Chung L. Mar and Douglas L. Wilson, Deputy Attorneys General, for Plaintiff and Respondent.
JACKSON, J.
INTRODUCTION
Defendant Dennis Ray Clay appeals from a judgment of conviction entered after a jury found him guilty of assault with intent to commit a felony (Pen. Code, § 220) and making a criminal threat (§ 422) and found true the allegation he personally used a handgun in the commission of the assault (§ 12022.53, subd. (b)). The trial court found true the allegation defendant suffered a prior conviction for which he served a prison term (§ 667.5, subd. (b)). The court sentenced defendant to the upper term of 6 years in state prison for the assault and a consecutive term of 10 years for the handgun use. It imposed concurrent 1-year terms for the criminal threat and the prior prison term.
All further section references are to the Penal Code.
On appeal, defendant challenges the handgun use enhancement and the sentence imposed. We modify the sentence and affirm.
FACTS
A. Prosecution
On May 16, 2006, Letitia S. worked the night shift as a truck driver for National Retail Corporation on West Carob Street in Compton. About 1:00 a.m., she finished her shift and called her husband to pick her up. He called her back to let her know his car battery was dead and he could not come to get her. After unsuccessful attempts to find a ride home, she called her husband and told him she was going to walk to Long Beach Boulevard and take the bus to her home in Long Beach.
Letitia began walking toward Long Beach Boulevard about 2:30 a.m. She walked on Carob Street and then onto Artesia Boulevard, where the 24-hour Crystal Casino was located. As she neared Santa Fe Avenue, defendant pulled up beside her in a Ford Explorer. Defendant asked through an open window if she needed a ride. She said she did not; she was walking to the bus stop.
Defendant stopped the Explorer, got out and walked over to Letitia. He pointed a handgun at her and ordered her into the vehicle. Afraid he would shoot her, Letitia got into the Explorer. Defendant slammed the door shut and got back into the vehicle.
Defendant told Letitia that he was from Compton, which she took to mean that he was a gang member. She could not see the gun, but defendant’s hand was by his side, hidden by the center console. Defendant then drove a short distance to Harcourt Street, steering with his other hand, and pulled into a driveway, where he stopped the Explorer.
Defendant told Letitia she was going to have sex with him. He attempted to remove Letitia’s pants, but he was unable to do so; Letitia was a few months pregnant and the pants were tight. Letitia told defendant she would remove the pants. When she failed to do so, defendant put his arm around her neck, pulled her toward him, choking her. He threatened to kill her. She was unable to breathe and feared for her life. She was wearing her work boots and kicked at the passenger window as hard as she could, breaking it. She then was able to escape out the door.
Letitia saw lights at a nearby building and ran to the building, where workers called 911. Defendant drove away. Sheriff’s deputies and paramedics arrived at the scene. Letitia gave a description of her assailant to the deputies. The paramedics then transported her to the hospital, where she was treated for pain in her neck and back.
In mid-July, Letitia was at the Crystal Casino when she saw defendant at one of the gaming tables. She spoke to a security guard, who recognized defendant as a regular patron and recalled seeing him previously driving an SUV with a broken side window. Sheriff’s deputies were called, and they arrested defendant. Letitia identified defendant’s vehicle in the casino parking lot. Thereafter, she identified defendant from a photographic lineup.
B. Defense
On May 16, 2006, defendant was at the Crystal Casino with his wife and a friend. About 1:30 a.m., he left in his wife’s SUV to get some food for his wife to eat in the vehicle. As he was leaving the parking lot, he saw Letitia walking by. She looked tired and distressed. He asked if she needed a ride. She said she did, and she lived in East Long Beach. She got into the SUV. Defendant did not force her into the SUV at gunpoint; he did not even own a gun.
After defendant drove a short distance, Letitia asked him if he was looking for a “date.” Defendant understood this to be a prostitute’s proposition. Defendant accepted and drove to Harcourt Street, where he parked. Letitia asked defendant for $20. He said he did not have that much money. Letitia got angry and asked why he bothered to pick her up. Defendant ordered her out of the vehicle. After she got out, she picked up a rock and threw it through his window.
C. Rebuttal
Letitia did not get into defendant’s vehicle or proposition defendant to have sex for $20. She was pregnant, and it would have been crazy to get into a stranger’s car at 2:00 a.m.
DISCUSSION
A. Handgun Use Enhancement
Defendant was charged in count 1 with kidnapping to commit another crime (§ 209, subd. (b)(1)) with use of a handgun, in count 2 with assault with intent to commit another crime with use of a handgun, and in count 3 with criminal threats. A jury acquitted defendant on count 1: the charge of kidnapping to commit another crime and the lesser offenses of kidnapping and false imprisonment. The jury was hung on counts 2 and 3, and the trial court declared a mistrial. Defendant was retried on counts 2 and 3, and he was convicted on both counts.
Defendant asserts that his acquittal on count 1 necessarily included a finding that he did not use a handgun. Therefore, he claims, imposition of the handgun use enhancement violated the constitutional proscription against double jeopardy.
The Fifth Amendment guarantee against double jeopardy incorporates principles of collateral estoppel. (Ashe v. Swenson (1970) 397 U.S. 436, 444-445 [90 S.Ct. 1189, 25 L.Ed.2d 469].) It provides that once “an issue of ultimate fact” has been resolved in a criminal proceeding, it cannot be relitigated in a subsequent prosecution. (Id. at pp. 443, 447.)
In Ashe v. Swenson, supra, several masked gunmen robbed a group of six men who were playing poker. Defendant was charged with robbing one of the six victims. A jury found him not guilty based on insufficient evidence. (397 U.S. at pp. 437-439.) The prosecution then charged defendant with robbing another of the victims. Defendant moved for dismissal of the charge based upon his previous acquittal. The court overruled the motion, after which defendant was convicted. (Id. at pp. 439-440.)
The Supreme Court found that the only basis for defendant’s acquittal at the first trial was a lack of proof of defendant’s identity as one of the robbers. The prosecution therefore was collaterally estopped from retrying the issue of defendant’s identity as one of the robbers. (Ashe v. Swenson, supra, 397 U.S. at pp. 444-445.) Inasmuch as collateral estoppel principles are “embodied in the Fifth Amendment guarantee against double jeopardy,” once “a jury determined by its verdict that [defendant] was not one of the robbers, the State could [not] hale him before a new jury to litigate that issue again.” (Id. at pp. 445-446.) That the prosecution involved a different victim was irrelevant; under the circumstances, the identity of the victim had no bearing on the identity of the robber. (Id. at p. 446.)
In People v. Santamaria (1994) 8 Cal.4th 903, the victim was stabbed, run over by a car, strangled and robbed. Defendant was charged with the murder and robbery, and it was alleged that he personally used a knife in the commission of the crime. A jury convicted defendant of murder and robbery but found untrue the allegation of personal use of a knife. Defendant obtained a reversal of his conviction on appeal based on errors occurring during deliberations. (Id. at pp. 908-909.)
The People filed a new information charging defendant with the murder and robbery but omitting the personal knife use allegation. Based on double jeopardy principles, defendant moved, to prohibit retrial of the issue of use of a knife and “‘to limit evidence and preclude prosecution’s reliance on theory adjudicated in defendant’s favor at first trial.’” (People v. Santamaria, supra, 8 Cal.4th at p. 909.) The trial court granted the motion, ruling that the prosecution could not retry the weapon use allegation (which was not included in the new information) and could not retry defendant under the theory that he personally used the knife in the commission of the murder. (Ibid.)
On appeal, the parties agreed that the jury’s “not true finding” on the knife use allegation precluded retrial of the allegation. The question was whether it limited the retrial of the murder charge. (People v. Santamaria, supra, 8 Cal.4th at p. 910.)
The court observed that the double jeopardy clause does not automatically preclude successive prosecutions where a defendant has had his conviction set aside on appeal. (People v. Santamaria, supra, 8 Cal.4th at pp. 910-911.) Additionally, factually inconsistent verdicts are permissible. Defendant thus could be retried on the murder charge and his conviction could stand even if inconsistent with the jury’s previous finding that the knife use enhancement was not true. (Id. at p. 911.)
Defendant argued the People were collaterally estopped to retry the murder charge on the theory he used a knife. (People v. Santamaria, supra, 8 Cal.4th at p. 911.) The court noted that collateral estoppel generally applies to successive prosecutions, as in Ashe v. Swenson, and has not been applied to retrial after reversal. (Id. at pp. 913-914.) “Retrial after reversal is not the sort of ‘governmental oppression’ protected by the double jeopardy clause.” (Id. at p. 914.) The court ultimately declined to decide whether collateral estoppel applied to retrial after reversal but examined whether, assuming collateral estoppel could apply, the elements had been met. (Id. at pp. 915-916.)
The court noted that in the case before it, the jury’s not true finding on the knife use allegation did not necessarily mean the jury found defendant did not use the knife. It could have meant the jury was unable to determine beyond a reasonable doubt whether defendant or another participant in the crimes used the knife. (People v. Santamaria, supra, 8 Cal.4th at p. 920.) The jury thus did not necessarily decide that defendant did not commit the murder using the knife and was merely an aider and abettor. (Ibid.) That an issue was necessarily decided in the first trial is a requirement for collateral estoppel. (Id. at pp. 920-921.)
Additionally, application of collateral estoppel requires that the issue to be foreclosed be one of ultimate fact. While use of a knife is an ultimate fact to be determined in connection with a knife use enhancement, it is not an ultimate fact to be determined in connection with a murder charge. (People v. Santamaria, supra, 8 Cal.4th at pp. 921-922.) The court thus concluded that collateral estoppel did not apply. (Id. at p. 922.) That being the case, the trial court erred in precluding retrial under the theory that defendant personally used a knife in the commission of the murder. (Id. at p. 926.)
The question before us is whether the first jury’s acquittal of defendant on kidnapping/false imprisonment necessarily included a determination that defendant did not use a gun in the commission of the assault. Under the foregoing authorities, we conclude it did not.
Defendant’s acquittal on both kidnapping and false imprisonment charges suggests that the jury either believed Letitia entered defendant’s Explorer voluntarily or the jury was not convinced beyond a reasonable doubt that defendant forced her into, or held her in, the vehicle. Either way, it did not find beyond a reasonable doubt that defendant did not use a gun in the commission of the crimes against Leticia. (People v. Santamaria, supra, 8 Cal.4th at p. 920.)
Moreover, even if the jury found that she got into the vehicle voluntarily, this does not preclude a finding that he subsequently used the gun in assaulting her when she refused to take off her pants and have sex with him. The assault was a separate crime, and defendant could have used the gun in one but not the other. Collateral estoppel thus does not bar imposition of the gun use enhancement. (Cf. Ashe v. Swenson, supra, 397 U.S. at p. 446 [single crime, different victims].)
Since defendant’s collateral estoppel contention has no merit, defendant’s trial counsel was not ineffective for failing to raise it at trial. (See In re Cudjo (1999) 20 Cal.4th 673, 687.)
B. Sentencing
Defendant first challenges the imposition of the upper term sentence for the assault. In imposing this sentence, the trial court cited the following aggravating factors: defendant’s prior convictions, defendant’s use of a gun in the commission of the crimes, defendant’s conduct causing great bodily injury, and evidence of planning. Defendant argues that use of the last two factors to impose the upper term sentence was invalid under Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct 856, 166 L.Ed.2d 856], with which we agree.
Defendant also takes issue with in People v. Black (2007) 41 Cal.4th 799, which holds that, that to the extent that there are proper recidivist factors on which the trial court relied, a defendant is eligible to receive the upper term sentence without an additional jury finding, and imposition of that sentence does not violate his Sixth Amendment right to a jury trial. (Id. at pp. 813, 820.) He acknowledges that we are bound by the Supreme Court’s holding in Black, however. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Under Black, defendant’s prior criminal history was an aggravating factor justifying imposition of the upper term sentence. (Id. at pp. 818-820; People v. Yim (2007) 152 Cal.App.4th 366, 370-371.) Defendant’s upper term sentence consequently is constitutional. (Black, supra, at pp. 813, 820.)
Defendant next contends that since the trial court relied on his gun use in imposing the upper term sentence, imposition of an enhancement for gun use violated the prohibition against dual use of sentencing factors (§ 1170, subd. (b); People v. Scott (1994) 9 Cal.4th 331, 350.). Since imposition of the upper term sentence properly was based on defendant’s prior convictions alone, defendant’s gun use could serve as the basis for imposing a sentence enhancement. (Cf. People v. Williams (1991) 228 Cal.App.3d 146, 153 [where the trial court cites improper factors in support of an aggravated sentence, the sentence may be sustained where there are other proper aggravating factors]; People v. Dreas (1984) 153 Cal.App.3d 623, 636 [sentence may be upheld if one valid aggravating factor cited].)
Defendant finally contends, and the People agree, that imposition of a concurrent sentence on count 3 was barred, and the sentence instead should have been stayed pursuant to section 654. Since the making of the criminal threats was part of an indivisible course of conduct which included the assault, under section 654 it could not be separately punished. (People v. Latimer (1993) 5 Cal.4th 1203, 1208; People v. Perry (2007) 154 Cal.App.4th 1521, 1525.) The sentence on count 3 therefore must be stayed.
DISPOSITION
The judgment is modified to stay sentence on count 3 under section 654. As so modified, the judgment is affirmed.
We concur: PERLUSS, P. J., ZELON, J.