Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County. Antonio Barreto, Jr., Judge. Los Angeles County Super. Ct. No. SA046601
Edward H. Schulman, 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, Paul M. Roadarmel, Jr. and Timothy M. Weiner, Deputy Attorneys General, for Plaintiff and Respondent.
ROTHSCHILD, J.
The sentencing in this case is before us for the second time. (See People v. Fuller (2006) 135 Cal.App.4th 1336 (Fuller I).) For the reasons explained below we modify the judgment to strike the one year prior prison term enhancement under Penal Code section 667.5, subdivision (b) and affirm the judgment as modified.
All statutory references are to the Penal Code.
FACTS AND PROCEEDINGS BELOW
A jury convicted Bobby Willard Fuller, Jr. of three counts of forcible rape, all committed during a burglary and with the personal use of a firearm (counts 1-3); assault with a firearm (count 4); kidnapping for the purpose of committing rape and robbery with the personal use of a firearm (count 5); first degree robbery at an automated teller machine (ATM) with the personal use of a firearm (count 6); first degree burglary with personal use of a firearm (count 7); and possessing a firearm as a convicted felon (count 8). In a bifurcated trial after a jury waiver, the trial court found that Fuller had been convicted of robbery in 1995, constituting a “strike” and “serious felony” offense, and for which he had served a prison term. (§§ 667, subds.(a)-(i), 1170.12, 667.5, subd. (b).) After denying Fuller’s motion to strike his prior conviction, the trial court imposed an aggregate sentence of 38 years plus life in prison without eligibility for parole for 100 years.
On appeal, we affirmed the convictions but vacated the sentence and remanded the case for resentencing. We held that the trial court erred in imposing three life terms for the three rape convictions under the “one strike” law for violent sex crimes. (§ 667.61; Fuller I, supra, 135 Cal.App.4th at p. 1343.) We instructed the trial court that on remand it “should impose only one ‘one strike’ term for the three rape convictions.” (Ibid.) Furthermore, “on all counts other than the one on which the court imposes the single one strike sentence, the trial court should sentence Fuller under the determinate sentencing law.” (Ibid.)
On remand, the trial court sentenced Fuller as follows. On the count 1 rape the court sentenced Fuller under the “one strike” law to life in prison with a minimum term of 25 years doubled to 50 years under the “Three Strikes” law. On the count 2 rape the court sentenced Fuller to the upper term of 8 years doubled to 16 years under the Three Strikes law and ordered the sentence to run concurrently with count 1. On the count 3 rape the court sentenced Fuller to the upper term of 8 years doubled to 16 years under the Three Strikes law but ordered the sentence to run consecutively to the “one strike” sentence on count 1 because it found the rape in count 3 “was clearly a separate offense.” The court imposed the upper term on all the remaining counts. Finally, on the counts 2 and 3 rapes the trial court imposed a 5 year prior conviction enhancement under section 667, subdivision (a)(1) and a consecutive 1 year prior prison term enhancement under section 667.5, subdivision (b).
Fuller filed a timely appeal from the new sentences on counts 2 through 8. He contends (1) the trial court erred in imposing both a 5 year prior conviction enhancement and a 1 year prior prison term enhancement; (2) the court erred in imposing the upper terms on counts 2 through 8 because the court based the upper terms on the same facts it used for the prior conviction and prior prison term enhancements in violation of section 1170, subdivision (b); and (3) the “separate occasions” predicate for the mandatory consecutive rape sentences under section 667.6, subdivision (d) constituted a factual issue which, under Cunningham v California (2007) ___ U.S. ___, 127 S.Ct. 856, should have been determined by the jury, not the trial court.
DISCUSSION
I. THE TRIAL COURT ERRED IN IMPOSING ENHANCEMENTS UNDER SECTION 667, SUBDIVISION (A)(1) AND SECTION 667.5, SUBDIVISION (B) BASED ON THE SAME PRIOR OFFENSE.
On the counts 2 and 3 rapes the trial court imposed a five year prior conviction enhancement under section 667, subdivision (a)(1) and a one year prior prison term enhancement under section 667.5, subdivision (b). Both enhancements were based on the same 1995 robbery conviction. Fuller claims the enhancements under sections 667 and 667.5 cannot be based on the same prior offense. The People agree. (People v. Jones (1993) 5 Cal.4th 1142, 1153.) We strike the one-year enhancement.
II. FULLER IS NOT ENTITLED TO A REVERSAL OF THE UPPER TERMS ON COUNTS 2 THROUGH 8 BASED ON A DUAL USE OF FACTS BECAUSE THE UPPER TERMS COULD BE BASED ON HIS PRIOR PRISON TERM ALONE.
The trial court imposed the upper terms on counts 2 through 8 because it found Fuller “has a prior conviction for robbery and served a term in state prison for that offense.” Fuller maintains the court erred because it based the upper terms on the same facts (prior conviction and prior prison term) it used to enhance those sentences in violation of section 1170, subdivision (b) [“The court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law”].
Fuller is correct in arguing the trial court erred in basing the upper terms on his prior conviction and prior prison term because the court relied on these same facts to impose enhancements under sections 667, subdivision (a)(1) and 667.5, subdivision (b) respectively. (See discussion in Part I, above.)
We need not decide whether Fuller forfeited this claim by not raising it in the trial court because the error was harmless in any event.
The People claim the error was forfeited, citing People v. Scott (1994) 9 Cal.4th 331, 356. Fuller contends the trial court’s sentence was “unauthorized, ” because it could not be imposed under any circumstances, and therefore failure to raise the error below did not result in a forfeiture. (People v. Smith (2001) 24 Cal.4th 849, 852.)
Although section 1170, subdivision (b) prevented the trial court from imposing an upper term based on the facts of Fuller’s prior conviction and prior prison term, because it used those facts as enhancements, we have stricken the prior prison term enhancement (see discussion in Part I, above) which frees up the facts of that enhancement to serve as the basis for imposing the upper terms. There is no Cunningham issue in using the prior prison term to impose the upper term because Fuller waived a jury as to the prison term allegation. In any event, Cunningham does not apply to a trial court’s determination that the defendant served a prior prison term. (People v. Black (2007) __ Cal.4th ____, _____ [2007WL2050875, *11] Black II.)
Cunningham v. California, supra, ___ U.S. ___, [127 S.Ct. 856].
For these reasons we hold imposition of the upper terms based on sections 667, subdivision (a)(1) and 667.5, subdivision (b) was harmless error.
III. THE TRIAL COURT DID NOT VIOLATE FULLER’S SIXTH AMENDMENT RIGHT TO A TRIAL BY JURY BY MAKING A FACTUAL DETERMINATION THAT THE RAPES IN THE BEDROOM AND THE RAPE IN THE LIVING ROOM INVOLVED THE SAME VICTIM ON SEPARATE OCCASIONS FOR PURPOSES OF IMPOSING MANDATORY CONSECUTIVE SENTENCES UNDER SECTION 667.6, SUDIVISION (D).
The trial court ordered the sentence on the count 3 rape to run consecutive to the sentence on the count 1 rape based on its finding that the two rapes “involve[d] the same victim on separate occasions” for purposes of mandatory consecutive sentencing under section 667.6, subdivision (d). Fuller maintains that a determination that the two rapes occurred on “separate occasions” is a factual question which, under Cunningham, must be decided by a jury.
At the time Fuller committed the rapes section 667.6, subdivision (d) stated: “A full, separate, and consecutive term shall be served for each violation of . . . paragraph (2) . . . of subdivision (a) of section 261 . . . if the crimes involve separate victims or involve the same victim on separate occasions.”
Fuller is half right. The question whether two rapes were committed on separate occasions is clearly a factual question under section 667.6, subdivision (d). Nevertheless, the Sixth Amendment does not entitle Fuller to have this fact tried by a jury for the reasons our Supreme Court explained in Black II. (Black II, supra, ___ Cal.4th at p. ______ [2007WL2050875 at pp. 12-13].) In Black II, the court equated consecutive sentences with the maximum sentence for an offense. Therefore, the court reasoned, the jury’s verdict finding the defendant guilty of two or more crimes was enough, by itself, to authorize consecutive sentences for each offense. Whether the defendant actually should serve consecutive sentences is a “‘sentencing decision[] made by the judge after the jury has made the factual findings necessary to subject the defendant to the statutory maximum sentence on each offense . . . .’” (Id. at p. *13, quoting from People v. Black (2005) 35 Cal.4th 1238, 1264 (Black I).)
DISPOSITION
The judgment is modified to strike the one year prior prison term enhancement under section 667.5, subdivision (b). In all other respects the judgment is affirmed.
We concur: VOGEL, Acting P.J. JACKSON, J.