Opinion
NOT TO BE PUBLISHED
Lake County Super. Ct. No. CR-909175
Swager, J.
Defendant Louis Shane Edwards appeals from a judgment entered upon his conviction by jury of one count of rape by force. (Pen. Code, § 261, subd. (a)(2)). He contends that the evidence is insufficient to prove the element of force. He also contends that Cunningham v. California (2007) 549 U.S. ___, 127 S.Ct. 856 (Cunningham) precludes his sentence to the upper term of eight years. We affirm.
All subsequent statutory references are to the Penal Code unless otherwise indicated.
STATEMENT OF THE FACTS AND PROCEDURAL HISTORY
On the night of April 12, 2006, 13-year-old L.E., her 15-year-old sister A.E., and their girlfriends 15-year-old C.P. and 15-year-old J. were having a sleepover at the home of L.E. and A.E. While L.E.’s and A.E.’s parents were sleeping, the girls decided to sneak out of the house and go to a party at their friend Ryan G.’s apartment, which was located nearby. Everyone drank alcohol at the party except for A.E., because she did not like the type of beverage the others were consuming.
At some point, A.E. and C.P. decided to leave the party and go to another party being held at the El Grande Inn. A friend named Steven J. drove them to the hotel. When they arrived, the only people in the hotel room were defendant and Masud Michael Sekander (Sekander). A.E. and C.P had met Sekander and defendant a few days earlier at a friend’s house. Steven J. left shortly thereafter to bring more people. C.P. began smoking marijuana. A.E. drank alcohol and also smoked marijuana. She and defendant talked, and she told him that she was 15 years old. Three more friends arrived and stayed for a short time.
Meanwhile, L.E. was upset that A.E. and C.P. had left the first party because the four girls had promised each other that they would not leave Ryan G.’s place and that they would stay together that night. Steven J.’s sister drove L.E., J. and another girl to the El Grande Inn. Upon entering the hotel room where the party was being held, L.E. saw defendant and some other people, including A.E., C.P., and Steven J.
L.E. asked A.E to come with her back to Ryan G’s apartment, but A.E. refused to leave. L.E. left after five minutes with the three girls that she had arrived with. Later, A.E. and defendant went outside to say goodbye to the three friends who had arrived earlier. At that point, defendant asked A.E. to follow him to the back of the hotel, where he tried to pull down her pants. He told her that he had a condom. She stated that she had a boyfriend and that she did not want to do anything with him. He tried to pull down her pants again and she pulled them back up and told him “no.” During this time, he also pulled her head down in an attempt to have her perform oral sex on him. She pulled her head back up, pushed him away, and said “no.” He said “fine” and walked away. They returned to the hotel room.
When A.E. came back inside the room she appeared to be drunk. She was leaning on defendant, and it appeared to C.P. that she had been flirting with him. A.E. then complained that she was going to be sick and went to the bathroom to throw up.
C.P. went into the bathroom with A.E. to make sure she was all right. The bathroom door was left open, and C.P. went in to check on A.E. twice. After awhile, C.P. left A.E. in the bathroom and asked defendant to watch her. The bathroom door opens inward, missing the toilet seat by less than a foot when opened. C.P. smoked marijuana with Sekander in the bedroom. At some point, she dozed off.
A.E. testified that defendant came into the bathroom, closed the door, and pulled down her pants. He penetrated her from behind as she was facing the toilet and vomiting. She tried to stop him but she was throwing up at the time, which impaired her ability to communicate. He stopped after a short time and pulled up her pants. He then helped her sit on the bathtub and left the room.
When C.P. woke up, the bathroom door was closed. L.E. had contacted C.P. by cell phone, telling her that L.E.’s mother was awake and that she and A.E. needed to come home. C.P. ran to the bathroom and told A.E. that they had to leave. Defendant was in the bathroom, leaning against the counter. A.E. was sitting on the bathtub with her head over the toilet. Her face was red and it appeared that she had been crying. A.E. needed assistance to get out of the bathroom and into Steven J.’s car.
A.E. arrived home around 4:00 a.m. She appeared to be intoxicated. The next day, A.E. told L.E., C.P., and J. that defendant had raped her in the bathroom of the hotel room. A.E. also told her parents, who called the police. An officer interviewed A.E. and collected the clothing that she was wearing on the night of the rape. A couple of days later, A.E. was examined by a family physician.
At trial, defendant testified that nothing happened between him and A.E. that night. He denied that he made any sexual advances towards her. He did admit that he entered the bathroom while she was vomiting, but testified that he did so only to help hold her hair and to give her some water. He believed A.E. was lying when she testified that he raped her.
On June 22, 2006, a preliminary examination was held and defendant was held to answer on all charges. On June 30, 2006, an information was filed against defendant and Sekander. Defendant was charged with forcible rape. (§ 261, subd. (a)(2).) Sekander was charged with two counts of furnishing marijuana to a minor (Health & Saf. Code, § 11361, subd. (b).) They were both charged with contributing to the delinquency of a minor. (§ 272, subd. (a)(1).)
The prosecutor moved to dismiss this count against defendant on August 31, 2006.
Defendant was arraigned on July 3, 2006. He pleaded not guilty to all counts.
At trial, the parties stipulated that the underwear A.E. was wearing on the night of the rape had tested negative for semen. Medical records were introduced showing that she had no signs of physical injuries when examined by her physician and that she tested negative for sexually transmitted diseases.
On September 13, 2006, the jury found defendant guilty of rape by force. On November 30, 2006, defendant filed a motion for a new trial. The motion was denied.
Defendant was sentenced to the upper term of eight years on December 15, 2006. He filed a timely notice of appeal.
DISCUSSION
Defendant contends that the evidence was insufficient to support his conviction of forcible rape. He also claims that the trial court erred in imposing the upper term in this case.
I. Standard of Review
“In considering defendant’s claim of insufficiency of the evidence of force necessary to affirm his conviction of forcible rape, we must determine only whether, on the record as a whole, any rational trier of fact could find him guilty beyond a reasonable doubt. [Citation.] We view the evidence in the light most favorable to the prosecution, and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” (People v. Griffin (2004) 33 Cal.4th 1015, 1028.)
II. Substantial Evidence Supports the Conviction
“Rape is a general intent offense. [Citation.] Forcible rape is defined as ‘an act of sexual intercourse accomplished with a person not the spouse of the perpetrator . . . [¶] . . . [¶] (2) [w]here it is accomplished against a person’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another.’ (§ 261, subd. (a)(2).)” (People v. Griffin, supra, 33 Cal.4th 1015, 1022.)
“The gravamen of the crime of forcible rape is a sexual penetration accomplished against the victim’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury. . . . [I]n a forcible rape prosecution the jury determines whether the use of force served to overcome the will of the victim to thwart or resist the attack, not whether the use of such force physically facilitated sexual penetration or prevented the victim from physically resisting her attacker.” (People v. Griffin, supra, 33 Cal.4th 1015, 1027.)
On appeal, defendant does not dispute that a sexual act occurred against A.E.’s will. He contends, however, that “at most” this case involves rape of an intoxicated person (§ 261, subd. (a)(3)), not rape by force, because A.E. “was prevented from resistance by the copious amount of alcohol she consumed,” and because there was no evidence of physical restraint. Defendant’s contention is not well taken.
The question for the jury in this case was simply whether defendant used force to accomplish intercourse with A.E. against her will, not whether the force he used overcame A.E.’s physical strength or ability to resist him. Viewed in the light most favorable to the prosecution, we note A.E. testified that defendant entered the small bathroom, closed the door behind him, pulled down her pants, and penetrated her from behind. During this time, her ability to resist was limited due to the fact that she was vomiting into the toilet. The act of cornering A.E. in the bathroom and removing her clothing while she was in a relatively defenseless position sufficiently demonstrates that defendant forcibly caused the act of sexual intercourse to occur.
We disagree with defendant’s claim that there was no evidence of physical restraint. Defendant took advantage of the tight quarters in the bathroom and A.E.’s position in front of the toilet to restrict her movements while he forcibly removed her pants and engaged in sexual intercourse. Additionally, we note that she was only 15 years old at the time, while defendant was within days of his 23d birthday. She also testified that shortly before this occurred she clearly communicated that she did not want to have sex with him. Based on all of these factors, we believe a rational trier of fact could find beyond a reasonable doubt that the act of intercourse was accomplished against the will of the victim and that defendant used “force,” as that term is commonly understood, to overcome her will.
We also disagree with defendant’s claim that this case is more properly characterized as one of rape by intoxication. Section 261, subdivision (a)(3), defines rape as acts of sexual intercourse “Where a person is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused.” In People v. Giardino (2000) 82 Cal.App.4th 454, 462, the court explained what “prevented from resisting” means in this context: “[J]ust as subdivision (a)(1) of section 261 proscribes sexual intercourse with a person who is not capable of giving legal consent because of a mental disorder or physical disability, section 261(a)(3) proscribes sexual intercourse with a person who is not capable of giving legal consent because of intoxication. In both cases, the issue is not whether the victim actually consented to sexual intercourse, but whether he or she was capable of exercising the degree of judgment a person must have in order to give legally cognizable consent.” Although the statutory language suggests the issue is whether intoxication prevented the victim from physically resisting, “the correct interpretation focuses on whether the victim’s level of intoxication prevented him or her from exercising judgment.” (Id. at p. 466.)
The evidence shows that A.E. was capable of exercising judgment, as shortly before she retreated to the bathroom to vomit she had rebuffed defendant’s advances. Defendant was thus aware that she was not interested in consenting to intercourse. She also testified she tried to resist him in the bathroom but her ability to do so was impaired by the fact that she was vomiting at the time of the assault, not by the bare fact of her intoxication. In sum, we find no basis to question the validity of the conviction.
III. Defendant Was Properly Sentenced to the Upper Term of Eight Years
Defendant claims that the imposition of an eight-year upper term sentence for rape violated his jury trial and due process rights as elucidated in Blakely v. Washington (2004) 542 U.S. 296, 301 (Blakely), and Cunningham, supra, 127 S.Ct. 856, 866. He argues that the trial court’s findings of several aggravating factors require that we strike the upper term sentence for rape. We disagree.
In Blakely, the United States Supreme Court revisited the rule articulated in Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi), that “ ‘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, 542 U.S. 296, 301.) The court found that an exceptional sentence beyond the standard range sentence for the offense imposed by a trial judge under Washington’s determinate sentencing based upon several specified facts found by the trial judge violated the Apprendi rule that the jury verdict alone must “authorize the sentence.” (Blakely, supra, at p. 305, fn. 8; see also People v. Riskin (2006) 143 Cal.App.4th 234, 241; People v. Linder (2006) 139 Cal.App.4th 75, 83–84.)
The California Determinate Sentencing Law (DSL) was temporarily spared from the reach of Blakely by the decision in People v. Black (2005) 35 Cal.4th 1238 (Black I), where the California Supreme Court decided that a “defendant’s constitutional right to a jury trial” is “not violated by the trial court’s imposition of the upper term sentence” for a conviction “or by its imposition of consecutive sentences” upon two or more convictions. (Id. at p. 1264.)
The Legislature has since amended the statute in response to Cunningham to give the sentencing court discretion to choose the lower, middle or upper term. (See, e.g., Stats. 2007, ch. 3, § 2, eff. Mar. 30, 2007.) All further references in this opinion to the DSL are to former section 1170, in effect at the time of defendant’s conviction.
In Cunningham, the United States Supreme Court examined the DSL in light of Blakely. The court in Cunningham disagreed with the Black I decision, and concluded: “In accord with Blakely, therefore, the middle term prescribed in California’s statutes, not the upper term, is the relevant statutory maximum. . . . Because circumstances in aggravation are found by the judge, not the jury, and need only be established by a preponderance of the evidence, not beyond a reasonable doubt, [citation], the DSL violates Apprendi’s bright-line rule: Except for 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.’ [Citation.]” (Cunningham, supra, 127 S.Ct. 856, 868.) The court summarized: “Contrary to the Black court’s holding, our decisions . . . point to the middle term specified in California’s statutes, not the upper term, as the relevant statutory maximum. Because the DSL authorizes the judge, not the jury, to find the facts permitting an upper term sentence, the system cannot withstand measurement against our Sixth Amendment precedent.” (Id. at p. 871.)
We turn to the merits of the contention that Blakely error was committed by the trial court’s imposition of an upper term based upon the following articulated factors: (a) That the victim was particularly vulnerable; (b) That defendant had previously engaged in violent conduct, which indicated a serious danger to society; (c) That defendant had numerous prior convictions as an adult or sustained petitions as a juvenile; (d) That defendant was on probation and CYA parole at the time of the crime; and (e) That defendant’s prior performance on probation and parole were unsatisfactory.
The court found no mitigating factors.
Recent pronouncements by the California Supreme Court are determinative of this issue. The court in People v. Sandoval (2007) 41 Cal.4th 825 observed that the “United States Supreme Court has recognized two exceptions to a defendant’s Sixth Amendment right to a jury trial on an aggravating fact that renders him or her eligible for a sentence above the statutory maximum. First, a fact admitted by the defendant may be used to increase his or her sentence beyond the maximum authorized by the jury’s verdict. [Citation.] Second, the right to jury trial and the requirement of proof beyond a reasonable doubt do not apply to the aggravating fact of a prior conviction.” (Id. at pp. 836–837, italics added.)
Additionally, in People v. Black (2007) 41 Cal.4th 799 (Black II), the court declared “as long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional factfinding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to jury trial.” (Id., at p. 812, italics omitted.) The court added: “Under California’s determinate sentencing system, the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term. [Citation.] Therefore, if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not ‘legally entitled’ to the middle term sentence, and the upper term sentence is the ‘statutory maximum.’ ” (Id., at p. 813.) From this premise the court reasoned: “It follows 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.” (Id., at p. 816.)
Moreover, the court in Black II decided that the prior conviction exception to the right to a jury trial extends to any aggravating circumstance related to the “defendant’s criminal history” or recidivism “that may be determined by examining the records of the prior convictions.” (Black II, supra, 41 Cal.4th 799, 818, 819.) Prior convictions listed in the probation report that were both numerous and of increasing seriousness were also found legally sufficient by the court in Black II to render the defendant eligible for the upper term sentence as an aggravating circumstance without violation of the right to a jury trial under Blakely. (Id. at pp. 818–820.)
Here, as in Black II, defendant’s record of prior convictions justified the selection of the upper term as the statutory maximum sentence. While defendant’s convictions as an adult were for misdemeanors only, including driving under the influence (Veh. Code, § 23152, subd. (a)), his juvenile adjudications were numerous and of increasing severity. And while defendant argues that his juvenile record should not have been considered because minors have no right to a trial by jury, the weight of authority in California does not support his position. (See, e.g., People v. Buchanan (2006) 143 Cal.App.4th 139, 149 [juvenile adjudications count as a strike under the three strikes law]; People v. Superior Court (Andrades) (2003) 113 Cal.App.4th 817, 830–831 [same]; People v. Lee (2003) 111 Cal.App.4th 1310, 1314–1316 [same]; People v. Smith (2003) 110 Cal.App.4th 1072, 1079 [same]; People v. Bowden (2002) 102 Cal.App.4th 387, 393–394 [same]; People v. Fowler (1999) 72 Cal.App.4th 581, 585 [same]; see also People v. Palmer (2006) 142 Cal.App.4th 724, 733 [use of out-of-state non-jury convictions to impose enhanced sentence].)
Multiple petitions were sustained against defendant as a minor, including for offenses such as grand theft, possession of a controlled substance and carjacking.
The California Supreme Court presently has this issue under review. (See People v. Nguyen (2007) 152 Cal.App.4th 1205, review granted Oct. 10, 2007, S154847; People v. Tu (2007) 154 Cal.App.4th 735, review granted Dec. 12, 2007, S156995; People v. Grayson (2007) 155 Cal.App.4th 1059, review granted Dec. 19, 2007, S157952.)
Accordingly, we need not decide whether the trial court improperly relied upon some aggravating circumstances, as it properly relied upon defendant’s history of numerous prior adjudications and convictions. We must follow the authority of the California Supreme Court’s decision in Black II to find that imposition of the upper term did not infringe upon the defendant’s constitutional right to jury trial. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455; People v. Sullivan (2007) 151 Cal.App.4th 524, 563; People v. Scott (2000) 85 Cal.App.4th 905, 915–916.)
DISPOSITION
The judgment is affirmed.
We concur: Marchiano, P. J., Stein, J.