Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. TA087967. Paul A. Bacigalupo, 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, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels and Taylor Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
ZELON, J.
On resentencing for falsely imprisoning and sexually assaulting two teenage girls, Allen Hammler was sentenced to an aggregate term of 69 years 8 months to life in prison. Hammler appeals, contending that the imposition of full consecutive upper terms on three counts violated the Sixth Amendment and that the false imprisonment counts should have been stayed pursuant to Penal Code section 654. We stay the sentences for false imprisonment but otherwise affirm.
All further statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
We set forth the factual background of this matter in our nonpublished opinion in People v. Hammler (Jan. 14, 2009, B198947), and we rely upon it here: “Sisters J.S. (14 years old) and D.S. (15 years old) were waiting for a bus home from cheering at their high school basketball game when Hammler approached and persuaded D.S. to accompany him and a companion to a store. J.S., unwilling to leave her sister alone, followed. Hammler then took them to a nearby hotel, where he refused to let them leave and threatened to shoot or kill them if they did not comply with his orders. He ordered the victims to undress, and they complied. Hammler forced his penis into D.S.’s vagina and then made her orally copulate him. He later attempted to have sexual intercourse with J.S., causing his penis to slightly penetrate her vagina, and forced her to orally copulate him as well. Hammler forced both girls to sniff a rock-like substance that burned their noses. Hammler kept them overnight and released them the following morning.” (People v. Hammler (Jan. 14, 2009, B198947) [nonpub. opn.].)
The jury found Hammler guilty of two counts of rape (§ 261, subd. (a)(2)) (counts 1 and 2); two counts of forcible oral copulation (§ 288a, subd. (c)(2)) (counts 3 and 4); and two counts of false imprisonment (§ 236) (counts 5 and 6). Hammler appealed, and this court remanded the matter for resentencing.
At resentencing, the trial court imposed consecutive terms of 25 years to life on counts 1 and 2 pursuant to section 667.61, subdivision (a). The court imposed consecutive high terms of eight years on counts 3 and 4, stating the basis for the high term to be the vulnerability of the victims; the threats of bodily harm; the commission of the crimes with planning and sophistication; and Hammler’s poor performance on parole. The court noted that the jury had found true the special allegations that Hammler had been convicted of committing rape and/or sodomy against more than one victim and of administering a controlled substance to the victim in the commission of forcible oral copulation, but acknowledged that it could impose only one 25-year-to-life sentence under People v. Jones (2001) 25 Cal.4th 98, 107. On count 5, the court imposed a full, separate, and consecutive term of three years because the victims were young and particularly vulnerable and because Hammler’s convictions were numerous and of increasing seriousness. On count 6, the court imposed one-third the mid-term sentence-eight months. The court specified that consecutive sentencing was appropriate because “[t]he victims were relatively young when they were raped in a seedy hotel room. The court does not find plausible, nor did the jury, that the victims were not teenagers. The crimes, further, involved separate acts of violence or threats of violence.” The court later stated that “my reasoning for the imposition of the consecutive sentencing was that the crimes involved separate acts of violence, and I will amend that to say separate acts of violence upon more than one victim.”
Hammler again appeals.
DISCUSSION
I. Consecutive Upper Terms on Counts 3, 4, and 5
A. Section 667.6, Subdivision (d)
With respect to counts 3 and 4, the prosecution argued that full, separate, and consecutive terms should be imposed pursuant to the mandatory provisions of section 667.6, subdivision (d). The court imposed full, separate, and consecutive terms on these counts, but did not specify at sentencing whether it was proceeding under section 667.6, subdivision (d) as requested by the People or under another provision, such as the discretionary provisions of section 667.6, subdivision (c).
Hammler argues that if full, consecutive terms were imposed under the discretionary provisions of section 667.6, subdivision (c), then the court erred by not including a separate statement of reasons. Such a statement would be required if the court had proceeded under this statute (People v. Belmontes (1983) 34 Cal.3d 335, 347-348), but this provision was not mentioned at sentencing or in the accompanying sentencing memoranda. Counsel concedes that it is unlikely that the trial court imposed sentence on this statutory basis. To conclude that the court proceeded under section 667.6, subdivision (c) would be to conclude that the court sentenced Hammler under this provision without stating that it was sentencing Hammler under a provision that no party had raised in sentencing memoranda and without making the necessary findings on the record. We would be required to presume, without evidence, that the trial court erred rather than followed the law, which we cannot do. (Ross v. Superior Court (1977) 19 Cal.3d 899, 913-914.) Instead, we draw what Hammler concludes is “the inexorable conclusion” that the trial court sentenced Hammler under section 667.6, subdivision (d), which requires no statements of reasons for consecutive terms because the section is mandatory where it applies. (People v. Ramirez (1987) 189 Cal.App.3d 603, 635.)
Hammler argues that the analysis set forth in Blakely v. Washington (2004) 542 U.S. 296 applies with equal force to full-term consecutive sentencing and precluded the trial court from imposing full consecutive sentences on counts 3 and 4 in the absence of his admission or a factual finding by a jury beyond a reasonable doubt that the crimes were committed on separate occasions. This argument has no merit. Under section 667.6, subdivision (c) as it read at the time of the offenses herein, the trial court had the discretion to impose full consecutive sentences for violations of section 288a, subdivision (c)(2) “whether or not the crimes were committed during a single transaction.” (Former § 667.6, subd. (c).) Because the trial court had the discretion under section 667.6, subdivision (c) to sentence Hammler to full consecutive sentences based on the facts encompassed by the verdict alone-without making any additional findings of fact-the statutory maximum Hammler faced for purposes of Blakely was a full consecutive term. (People v. Groves (2003) 107 Cal.App.4th 1227, 1231.) Therefore, when the trial court made its implicit finding of fact under section 667.6, subdivision (d), it did not “increase[] the penalty for [the] crime[s] beyond the prescribed statutory maximum.” (Apprendi v. New Jersey (2000) 530 U.S. 466, 490.) As the court’s factual finding did not raise Hammler’s potential punishment beyond that to which he was already subject based on the verdict alone, the court’s determination of the factual matter did not violate the Sixth Amendment. (Ibid.)
Section 667.6, subdivision (c) has since been amended but remains similar in effect. The statute now provides, “In lieu of the term provided in Section 1170.1, a full, separate, and consecutive term may be imposed for each violation of an offense specified in subdivision (e) if the crimes involve the same victim on the same occasion. A term may be imposed consecutively pursuant to this subdivision if a person is convicted of at least one offense specified in subdivision (e).” (§ 667.6, subd. (c).)
Moreover, with respect to running the sentences consecutively, the United States Supreme Court has held that the Sixth Amendment does not mandate jury determination of facts necessary to the imposition of consecutive sentences for separate offenses (Oregon v. Ice (2009) U.S. 555 U.S. ___, 129 S.Ct. 711, 714-715), and the California Supreme Court has specifically ruled that imposing a consecutive sentence under section 667.6, subdivision (d) does not violate the Sixth Amendment. (People v. Wilson (2008) 44 Cal.4th 758, 813.)
B. Upper Terms
Hammler argues that the trial court lacked authority to impose upper terms on any counts without jury findings on aggravating circumstances, and that the application of the revised Determinate Sentencing Law violates the ex post facto clause of the United States Constitution. As Hammler acknowledges, this view is contrary to the California Supreme Court’s rulings in People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval) and we are bound to follow that decision. (Auto-Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Furthermore, the amendment of section 1170.1 and the judicial reformation of the sentencing statute to pending cases in Sandoval, supra, 41 Cal.4th 825, eliminated any requirement that an upper term sentence, except one based on recidivist factors, be based upon facts found by a jury or admitted by a defendant. Hammler’s argument that his parole violations did not fall within the exception for the fact of a prior conviction does not, therefore, establish any error in the resentencing.
II. Section 654
Hammler contends that the sentences for false imprisonment should have been stayed pursuant to section 654 because they constituted a course of conduct indivisible from the sexual offenses Hammler committed. The People fail to address this argument in their brief.
Section 654, subdivision (a) provides, “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other.” “Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor.” (Neal v. California (1960) 55 Cal.2d 11, 19.) The intent and objective of the defendant is a question of fact for the trial court. (People v. Nelson (1989) 211 Cal.App.3d 634, 638.) When, as here, the trial court makes no express factual findings on the issue, a finding that the crimes were divisible inheres in the judgment and must be upheld if supported by substantial evidence. (Ibid.)
Here, there was no substantial evidence to support the trial court’s implicit determination that Hammler’s objective of the false imprisonment of the victims was divisible from his objective to commit rape and forcible oral copulation. All the evidence supported a conclusion that Hammler lured the victims into the hotel for the purpose of compelling them to engage in sexual activity with him. Accordingly, the sentences on counts 5 and 6 should have been stayed pursuant to section 654, as they were at the original sentencing hearing. (See, e.g., People v. Latimer (1993) 5 Cal.4th 1203, 1216-1217; People v. Galvan (1986) 187 Cal.App.3d 1205, 1217-1219; People v. Laster (1971) 18 Cal.App.3d 381, 394.) We order the judgment modified accordingly.
DISPOSITION
The judgment is ordered modified to stay the sentences imposed on counts 5 and 6 under section 654. The clerk of the superior court is ordered to prepare an amended abstract of judgment and to forward a copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: PERLUSS, P. J., WOODS, J.