Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 01WF1019 James A. Stotler, Judge.
Nancy J. King, 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, Assistant Attorney General, David Delgado-Rucci and Jennifer A. Jadovitz, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
ARONSON, J.
A jury convicted Robert Erin Darling of driving recklessly while evading police, possession of a firearm by a felon, residential burglary, three counts of false imprisonment, two counts of cutting a telephone line, and kidnapping. The jury found defendant personally used a knife during the burglary and the kidnapping.
This is the third appeal in this case. In People v. Darling (July 20, 2005, G032321) nonpublished opinion (Darling I), we concluded substantial evidence supported the convictions and enhancements, but reversed for resentencing without the use of two out-of-state priors as strikes because they did not meet California prerequisites. In another nonpublished opinion, People v. Darling (Apr. 30, 2007, G036752) (Darling II), we held the Three Strikes law did not require, as the trial court believed, mandatory consecutive sentences on several of defendant’s convictions, and we remanded for a new sentencing hearing. In Darling II, we rejected defendant’s contention the trial court failed to understand it retained authority to strike (Pen. Code, § 1385) one or both of his remaining California prior strikes or, alternatively, the court abused its discretion by failing to strike a strike. We also rejected his claim the trial court violated due process and the Sixth Amendment by making the factual determinations that resulted in consecutive sentencing.
All statutory references are to the Penal Code.
In this appeal, defendant reasserts his claims the trial court abused its discretion in refusing to dismiss or strike a strike and violated due process and the Sixth Amendment by making the factual determinations that resulted in consecutive sentencing. He acknowledges we rejected the same or similar claims in the earlier appeals but raises them to preserve his rights in any future legal proceedings.
I
Factual and Procedural Background
For convenience, we restate the facts and a portion of the discussion from our earlier opinions (Darling 1 and Darling II), and designate the reference by quotation marks.
“On April 21, 2001, around 5:30 p.m., police officer Dennis Fulton observed defendant make a dangerous left turn in front of oncoming traffic, narrowly avoiding a collision. Fulton pulled behind defendant’s Volvo and activated his overhead lights. One of the overhead lights was red, and the other blue. When defendant turned into a parking lot and exited without stopping, Fulton switched on his sirens. Defendant drove at a slow speed into a cul-de-sac, where he stopped the car, only to drive away when Fulton approached him on foot. After a pursuit in which defendant drove over sidewalks and lawns, sped through blind intersections, and weaved through traffic at 65 miles per hour in a 45-mile per hour zone, Fulton stopped defendant in another cul-de-sac.
“Defendant exited the Volvo and Fulton yelled, ‘Stop. Don’t move. Show me your hands.’ He saw a chrome-colored semiautomatic pistol in defendant’s right hand. Defendant ran toward a group of apartment buildings, where Fulton lost him. Meanwhile, a bystander saw defendant hide the gun in some bushes.
“Dale Skiba lived in one of the nearby apartments with his elderly parents, Bill and Elizabeth, aged 91 and 83, respectively. Dale heard a ‘[b]anging of the screen and the door,’ his mother called out, ‘There is someone coming in,’ and suddenly defendant was in the home, locking the door behind him.
“He appeared ‘highly agitated,’ drawing a knife from his pocket as he advanced toward Dale. He unsheathed the blade. Dale backed into the living room, where defendant quickly commanded everyone to sit down, not move, and not make any noise. Frightened, Dale informed his parents a ‘home invasion robbery’ was taking place and instructed them to comply with defendant’s demands.
“Defendant tore a telephone out of the wall and severed the cord. He then ripped the wires out of a cordless phone in the living room. Next, he turned off the lights and closed the drapes in the living room, securing them shut with a vase. He also blocked the sliding door with a chair. During this time, defendant was ‘very aggressive’ and repeatedly pointed his knife at the Skibas. In an ‘angry [and] desperate’ voice, defendant again commanded the Skibas to ‘not make any sound, to sit still.’
“Defendant sat on a bench within arm’s reach of the Skibas. When Dale and Elizabeth coughed because they had chest colds, defendant ordered them to be silent. He stated, ‘I’ll do whatever it takes not to get caught,’ informing them he was H.I.V. positive and had ‘nothing to lose.’ Dale took these statements as threats.
“At one point, defendant mentioned he was injured, so Dale offered him a pillow and a glass of water. Elizabeth offered defendant some chocolates. Dale later explained his actions as an ‘[attempt] . . . to ensure . . . that [defendant] would view [them] in as human a fashion as possible,’ making it ‘less likely’ he would hurt or kill them. Dale also hoped defendant would ‘leave fingerprints and DNA behind’ on the water glass. Defendant ate a banana and placed $1.35 on the counter to ‘pay [his] debts.’ Elizabeth assured defendant the money was not necessary and he could have more food. Dale attempted to engage defendant in conversation. He asked defendant about his family. Again, Dale explained this as an attempt to minimize the likelihood of bodily harm or death.
“Defendant appeared sleepy and Dale tried to keep him awake by talking to him. Dale worried his parents could not endure the stress of a long detention and feared defendant ‘might react suddenly or irrationally’ if he awoke in their home. Dale did not try to escape when defendant seemed to doze because he knew his elderly parents could not escape with him.
“After about two and one-half hours, when the sound of police helicopters had ceased and darkness fell, defendant asked Dale if he wanted to drive him out of the area. Without Dale’s consent, defendant noted, it ‘might be considered kidnapping’ to force Dale to help him escape. Afraid to anger defendant by refusing his request, Dale agreed to drive defendant to the location of his choosing. Dale’s parents were very frightened for their son when he left with defendant.
“Defendant ordered Dale to stay close to him outside the apartment. As they walked, defendant became angry if Dale fell even a step behind. Dale knew defendant still had a knife, and he quickened his pace. Defendant took Dale across the street to the place where he had thrown the gun into the shrubbery. While defendant was looking in the bushes, Dale tried to signal to a neighbor something was wrong, to no avail.
“After defendant failed to find his gun, the two men climbed into Dale’s truck and defendant directed Dale to a gas station, where defendant fled. Dale returned to his parents and they immediately drove to the police station and reported the crimes.
“Five days later, the police arrested defendant, finding two knives in his possession, one of which he had drawn on Dale. They also found the handgun in the shrubbery where defendant had thrown it. The gun was loaded and had defendant’s fingerprints on it, as did the Volvo he abandoned, which also contained prescription medicine containers bearing his name, an empty gun case, and his wallet with picture identification and credit cards.”
On remand from Darling II, the trial court vacated its sentence and resentenced defendant on September 21, 2007. The court again declined to exercise discretion to dismiss or strike either of defendant’s two prior California strikes — a residential burglary in 1987 and grand theft involving a firearm in 1991 — either in toto or as to particular counts. (§ 1385; People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-530 (Romero).) It imposed a Three Strikes sentence of 62 years to life, as follows: a life term with a 25-year minimum for driving recklessly while evading police (count 1); an enhanced one year term for being armed with a firearm (§ 12022, subd. (a)); a concurrent life term with a 25-year minimum for being a felon in possession of a firearm (count 2); a life term with a 25-year minimum for residential burglary, stayed under section 654 (count 4); a life term with a 25-year minimum for false imprisonment by violence (count 5); plus one year for personal use of a knife, consecutive to count 1; concurrent life terms with 25-year minimums false imprisonment by violence (counts 6 and 7); plus one year for use of a knife; concurrent life terms with 25-year minimums for cutting a telephone line (counts 8 and 9); a concurrent life term with a 25-year minimum for kidnapping (count 10). The court added two consecutive five-year terms for defendant’s prior serious felony convictions under section 667, subdivision (a).Defendant received an aggregate prison sentence of 62-years to life.
II
Discussion
A. The Trial Court Did Not Abuse Its Discretion in Declining to Strike Defendant’s Prior Convictions
Defendant contends the trial court abused its discretion in declining to strike one or both of his strikes in toto or as to one of the counts. He complains he cannot complete the term imposed during his lifetime and the court abused its discretion because the “totality of the circumstances” did not justify such a lengthy sentence. Defendant’s claim lacks merit.
Initially, we find no basis to support defendant’s argument that the trial court’s comments at sentencing “showed it was not aware of the extent of its discretion” or that it “did not properly consider the relevant factors listed in Romero.” The court acknowledged at the new sentencing hearing “I have discretion to strike strikes” and announced it was “now exercising that discretion.” It then articulated the standard under Romero and its progeny and explained why defendant’s case did not fall outside the spirit of the Three Strikes law, considering the circumstances of the present offenses and defendant’s individual characteristics.
On the merits, as we explained in Darling II, “the touchstone for a trial court’s ruling on a Romero issue, and for our review, is ‘whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the [Three Strikes] scheme’s spirit, in whole or in part. . . .’ [Citation.] Our standard of review is deferential, not de novo; the issue is whether the trial court’s decision falls outside the bounds of reason. [Citations.] [¶] The Three Strikes law was ‘designed to increase the prison terms of repeat felons’ within a spirit of ‘“‘fair prosecution of crimes properly alleged.’ [Citation.]”’ [Citation.] As the trial court noted, defendant’s history of committing felony crimes dated back to two Colorado robbery convictions in the 1970’s, bringing him within the anti-recidivist purpose of the law. Of particular concern, after his 1987 burglary conviction, defendant committed a 1991 grand theft involving a gun, and in 1994 suffered yet another burglary conviction. Although he did not, according to defense counsel, use the gun in the 1991 theft and he discarded his firearm in the midst of his present offense, his willingness to carry a prohibited weapon demonstrates a commitment to criminal endeavors. [¶] Most importantly, as the trial court remarked, the gravity of his offenses culminated in a dangerous hostage and kidnapping confrontation, where he brandished a knife at his elderly victims and threatened to ‘“do whatever it takes not to get caught[.]”’ It may be true that defendant’s criminal history stemmed in part from drug addiction, including heroin, but he failed to address this problem when given the opportunity with multiple misdemeanor convictions. And while defendant showed a willingness to cooperate with authorities once in jail, the trial court could reasonably conclude at the time of resentencing that defendant’s prospects for reform outside prison were slim.” As in Darling II, we discern no abuse of discretion.
B.No Right to a Jury Trial on Consecutive Sentencing Factors
As noted, the court imposed consecutives sentences for driving recklessly while evading police (count 1) and false imprisonment by violence (count 5). The outcome was dictated by the Three Strikes law (§ 667, subd. (c)(6)), which mandates consecutive sentences where there “is a current conviction for more than one felony count not committed on the same occasion, and not arising from the same set of operative facts,” and our opinion in Darling II, where we held “the offenses defendant committed before entering the Skibas’ apartment (reckless driving while evading police and gun possession) occurred on a different occasion and under a different set of operative facts than the offenses he committed after he crossed the apartment threshold (false imprisonment, cutting telephone lines, and kidnapping).”
Defendant argues imposition of consecutive sentences violated his federal right to a jury trial. We rejected the claim in Darling II for essentially the same reasons provided a few months later by the California Supreme Court in People v. Black (2007) 41 Cal.4th 799 (Black II). As Black II explained, imposition of consecutive terms under section 669 does not implicate a defendant’s Sixth Amendment rights because factual determinations relevant to the decision to impose consecutive or concurrent sentences do not serve as the functional equivalent of elements of a crime, section 669contains no presumption favoring concurrent sentences, and there is norequirement the court find that an aggravating circumstance exists to justify imposition of consecutive terms. (Id. at pp. 821-823.)
Defendant argues his case is distinguishable from Black II: “[T]he trial court’s sentence relied upon this Court’s factual determination that offenses occurred on separate occasions, making consecutive terms mandatory pursuant to the Three Strikes Law. Because the Supreme Court in [Black II] considered only a trial judge’s discretionary sentencing decision [under section 669], [defendant] submits this Court is not bound by the decision in [Black II] and can decide this question on the merits.”
This distinction does not aid defendant. Although the Three Strikes law requires consecutive sentences where the current offenses occurred on different occasions and under a different set of operative facts, the fact remains there is no statutory entitlement or presumption of concurrent sentences in the absence of these facts. Thus, the factfinding that occurs when the trial or appellate court concludes an offense occurred on a different occasion and under a different set of operative facts does not “increase[] the penalty for a crime beyond the prescribed statutory maximum,” (Apprendi v. New Jersey (2000) 530 U.S. 466, 490), i.e., “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 v. Washington (2004) 542 U.S. 296, 303, italics omitted.) Mandatory imposition of the maximum possible sentence does not constitute an increase in the maximum possible sentence. (See People v. Groves (2003) 107 Cal.App.4th 1227 [imposition of mandatory consecutive terms under section 667.6, subdivision (d), based on the trial court’s factual finding that crimes occurred on separate occasions, did not violate the Apprendi rule]; see also People v. Cleveland (2001) 87 Cal.App.4th 263, 280 [trial court’s determination defendant had separate objectives under section 654 did not violate the Apprendi rule because section 654 is a discretionary benefit reducing rather than enhancing sentence].)
III
Disposition
The judgment is affirmed.
WE CONCUR: BEDSWORTH, ACTING P. J., IKOLA, J.