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People v. Freeman

California Court of Appeals, Fourth District, Second Division
Apr 1, 2009
No. E045606 (Cal. Ct. App. Apr. 1, 2009)

Opinion

NOT TO BE PUBLISHED

APPEAL from the Superior Court of Riverside County No. SWF009268, Albert J. Wojcik, Judge.

Jean Matulis, 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, Pamela Ratner Sobeck and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.


OPINION

RAMIREZ, P.J.

INTRODUCTION

This is the third appeal in this case. Defendant Curt Leroy Freeman (defendant) again argues that the trial court erred by imposing consecutive rather than concurrent sentences for his multiple convictions. We will affirm.

FACTS AND PROCEDURAL HISTORY

On October 29, 2008, on our own motion, we took judicial notice of our nonpublished opinion and the associated record in People v. Freeman (Nov. 9, 2007, E042272) (hereinafter referred to as E042272). We hereby also take judicial notice of our nonpublished opinion and the record in People v. Freeman (Sep. 22, 2006, E038826) (hereinafter referred to as E038826).

Over the course of several years, defendant repeatedly sexually assaulted his adult niece, a deaf cerebral palsy victim who had lived in his home since she was 18. On May 19, 2005, a jury convicted defendant of two counts of sodomy by force (Pen. Code, § 286, subd. (c)(2), counts 1 & 2); two counts of attempted rape by force (§§ 664, 261, subd. (a)(2), counts 3 & 4); two counts of oral copulation by force (§ 288a, subd. (c)(2), counts 5 & 6); and one count of penetration with a foreign object (§ 289, subd. (a)(1), count 7). The same jury found that the victim was particularly vulnerable and that in committing the offenses, defendant took advantage of a position of trust.

All further statutory references are to the Penal Code unless otherwise indicated.

At a sentencing hearing on August 26, 2005, the trial court noted its own finding, “over and above” the jury’s findings, that the crimes had been committed on separate occasions. Defendant was sentenced to 42 years in state prison: the upper term of eight years each on counts 1 and 2; plus subordinate terms of one year each on counts 3 and 4; plus the upper terms of eight years each on counts 5, 6, and 7. The court specified that it was sentencing defendant pursuant to subdivision (d) of section 667.6, and that all the terms were to be served consecutively.

The First Appeal and First Resentencing:

Defendant appealed, claiming, among other things, that full term consecutive sentences were improper because the jury had not found that the crimes were committed on separate occasions. In an opinion filed September 22, 2006, we affirmed defendant’s convictions but remanded the matter for correction of a different sentencing error. We did not directly address defendant’s consecutive/concurrent sentencing issue, but noted that it had been decided adversely to his position by the California Supreme Court in People v. Black (2005) 35 Cal.4th 1238 (Black I). We also noted that the issue was then pending before the United States Supreme Court in Cunningham v. California (2007) 549 U.S. 270 (Cunningham).

On January 22, 2007, between our remand and defendant’s resentencing, the United Stated Supreme Court issued its opinion in Cunningham. Four days later, on January 26, 2007, the trial court resentenced defendant, this time to a total of 34 years: the midterm of six years each on counts 1, 2, 5, 6, and 7, plus three years on count 3 as a principal term and one year on count 4. The court did not reference section 667.6 and made no comment about its decision to again impose all the terms consecutively.

In Cunningham, the Supreme Court clarified its earlier decisions in Blakely v. Washington (2004) 542 U.S. 296 (Blakely), and Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi)—that any fact used to increase the penalty for a crime beyond the statutory maximum must be admitted by the defendant or found by the jury—applied to the imposition of the upper terms provided for under California’s determinate sentencing law. (Cunningham, supra, 549 U.S. at pp. 288-289.)

The Second Appeal and Second Resentencing:

Defendant appealed once more and once more we remanded, this time for the court to recalculate defendant’s custody credits, to specify under which subdivision of section 667.6 it was proceeding, and to state its reasons for imposing consecutive terms. With no reference to statutory authority and without a statement of reasons, we noted, we could not meaningfully review its decision.

At a hearing on February 29, 2008, after a discussion about defendant’s custody credits, the prosecutor reminded the court that, pursuant to our opinion, it needed to give a statement of reasons for its selection of consecutive sentences. The court responded: “What happened, I think I did that the first time around. When you came back I didn’t do it.”

The court then explained its reasons for selecting consecutive sentences as follows: “[O]kay. I have considered the jurors[’] findings that the victim, who was deaf and suffered from cerebral palsy . . . was, in fact, particularly vulnerable.” In addition, “[t]he defendant, who was the victim’s uncle by marriage, took advantage of his position of trust and confidence to commit the crimes.” Finally, “the crimes occurred [on] different dates, different times.” Although the court had referred to the original sentencing, it again did not explicitly mention section 667.6 or any of its subdivisions.

DISCUSSION

In the current appeal, defendant again argues that, under the reasoning of Cunningham, the trial court’s decision to impose consecutive rather than concurrent sentences violated his Sixth Amendment right to a jury trial. Defendant recognized that we are bound by the California Supreme Court’s decision to the contrary in People v. Black (2007) 41 Cal.4th 799 (Black II), but raised the issue again to preserve it pending the United States Supreme Court’s decision in Oregon v. Ice (2009) ___ U.S. ___ [129 S.Ct. 711] (Ice), judgment reversed and cause remanded. That decision has now been issued and disposes of defendant’s claim.

Waiver:

The People first respond that defendant waived the issue by failing to object below. On this point, the People are incorrect. Defendant appealed his sentence as unauthorized under the statute, the Constitution, and United States Supreme Court case law. Were he correct, and his sentence unauthorized, it would constitute an exception to the general rule that only those claims properly raised below are reviewable on appeal. (People v. Scott (1994) 9 Cal.4th 331, 354; People v. Garza (2003) 107 Cal.App.4th 1081, 1091.)

Section 667.6:

Subdivision (c) of section 667.6 authorizes consecutive full term sentences for sexual offenses enumerated in subdivision (e) of the statute, even if all the crimes are committed against the same victim on the same occasion. (§ 667.6, subd. (c).) Included in subdivision (e) are five of the seven offenses of which defendant was convicted by the jury: sodomy by force, counts 1 & 2; oral copulation by force, counts 5 & 6; and sexual penetration with a foreign object, count 7. (§ 667.6, subds. (e)(4), (e)(7), (e)(8), referring, respectively, to §§ 286, subd. (c)(2), 288a, subd. (c)(2), & 289, subd. (a)(1).)

Subdivision (d) of section 667.6 mandates consecutive full term sentences for the sexual offenses enumerated in subdivision (e) if the crimes involve the same victim on separate occasions. Whether multiple sex crimes against a single victim may be considered to have occurred on “separate occasions” turns on whether, between crimes, “the defendant had a reasonable opportunity to reflect upon [his] actions and nevertheless resumed [his] sexually assaultive behavior.” (§ 667.6, subd. (d).)

Cunningham, Black II, and Ice:

In Black II, our high court explained that while Cunningham had addressed the necessity of jury findings to support the selection of upper terms, it did not apply to the discretionary decision of whether sentences for two or more crimes should be served consecutively. (Black II, supra, 41 Cal.4th at pp. 821-823.)

Black II dealt with the issue of consecutive sentencing under section 669, but we see no difference in the reasoning applicable to section 667.6.

Under Black II, there is no doubt that defendant’s consecutive sentences were authorized. After this case was filed, and while review was pending here, the United States Supreme Court issued its decision in Ice, essentially confirming the reasoning of Black II. Ice held that the Sixth Amendment does not inhibit states from assigning to judges, rather than to juries, the finding of facts to support a decision to impose consecutive rather than concurrent sentences for multiple discrete crimes. (Ice, supra, ___ U.S. ___ [129 S.Ct. 711].)

Analysis:

It is true that at defendant’s second resentencing hearing, as at the first one, the trial court failed to specifically refer to section 667.6 or any of its subdivisions. Nevertheless, we can infer from its reference to its own actions at the original sentencing hearing that the court was again proceeding under section 667.6, subdivision (d). In addition, the court’s statements at both hearings—that defendant’s crimes had been committed on separate occasions—lend support to our inference that it was proceeding under subdivision (d) rather than subdivision (c). In any case, the question is not critical. The court’s statement of reasons is adequate under either subdivision.

The court articulated three reasons for its decision to impose defendant’s prison terms consecutively rather than concurrently. The first two of these—that the victim was particularly vulnerable and that defendant took advantage of a position of trust in committing the crimes—had in fact been found by the jury and were also essentially admitted by defendant on the witness stand. This made the court’s decision to choose consecutive sentences proper under section 667.6, subdivision (c), even if the rule of Cunningham had been applicable to consecutive sentencing (which we now know it is not).

The third reason given by the court, based on its own finding that defendant’s crimes were committed on separate occasions, was both reflected in the jury’s multiple verdicts and admitted by the defendant at several points in his testimony at trial. Thus, the trial court’s actions were also proper under section 667.6, subdivision (d). Defendant’s crimes occurred over a period of years. Certainly, he had time to reflect between them. Under the reasoning of Black II and Ice, in making this finding the trial court acted well within the discretion conferred upon it by California law and not forbidden by the United States Constitution.

In his reply brief, defendant separately questions the court’s decision to also impose consecutive sentences for counts 3 and 4, offenses not mentioned in section 667.6, subdivision (e). As with defendant’s section 667.6 argument, this one is also disposed of by the recent Ice decision since these crimes are covered by the more general provisions of section 669, the specific provision analyzed by the Black II opinion. (Black II, supra, 41 Cal.4th at pp. 820-823; Ice, supra, ___ U.S. ___ [129 S.Ct. 711].)

DISPOSITION

The judgment is affirmed.

We concur: McKINSTER, J., RICHLI, J.


Summaries of

People v. Freeman

California Court of Appeals, Fourth District, Second Division
Apr 1, 2009
No. E045606 (Cal. Ct. App. Apr. 1, 2009)
Case details for

People v. Freeman

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. CURT LEROY FREEMAN, Defendant and…

Court:California Court of Appeals, Fourth District, Second Division

Date published: Apr 1, 2009

Citations

No. E045606 (Cal. Ct. App. Apr. 1, 2009)