Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Solano County Super. Ct. No. VCR180941
Richman, J.
By this appeal, defendant Jerice Hunter asks us to determine that she had a constitutional right to a jury finding on the factors supporting the imposition of consecutive sentences on four separate counts of causing corporal injuries to her children. Her argument derives from the United States Supreme Court’s opinions in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), Blakely v. Washington (2004) 542 U.S. 296 (Blakely), and, most recently, Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham), which generally recognize a defendant’s right to a jury finding on facts relied upon by the judge, other than the fact of a prior conviction, to impose a sentence beyond the statutory maximum. According to defendant, we should construe these cases to apply equally to the imposition of consecutive sentences.
Unfortunately for defendant, our Supreme Court recently—and yet again—rejected this precise argument in People v. Black (2007) 41 Cal.4th 799 (Black II). There, in an opinion filed just days after the parties completed briefing in this case, the Supreme Court reiterated that a defendant does not have a Sixth Amendment right to a jury trial on the factors justifying the imposition of consecutive sentences. (Id. at pp. 820-823.) We thus affirm.
Because defendant entered a plea of no contest prior to trial, we derive these facts from the probation department’s pre-sentence report.
This is a tragic case involving defendant, a woman who, in the words of the trial court, “never ever should have had children,” her then husband and convicted sex offender George Shockley, and four of defendant’s children, ages three, seven, nine, and fourteen.
On October 16, 2005, the grandmother of the four children reported to the Vallejo Police Department that the children, who had been brought to her house by their aunt, told her they had been abused by their mother and Shockley (their stepfather). The aunt told the police she had picked up the children from their home the previous day and noticed a laceration on the leg of the three year old. The child told her defendant had whipped her with an extension cord. The seven year old then came over and said, “[T]hat looks like mine, she got a whipping just like me,” revealing lacerations and raised welts on her arms. The aunt then checked the seven year old for further injuries and found numerous scars and welts all over her body. When asked what happened, the seven year old responded that defendant had whipped her with an extension cord and Shockley had whipped her with a belt.
The officers then spoke with defendant’s 14-year-old son, who said that in July 2005, defendant had punched him in the jaw when they got into an argument about him going outside to play. He said that up until he was 12 years old, defendant would punch him all over and whip him with sticks when she became upset. He did not report the abuse because defendant had warned him that he and his siblings would be taken away, and he did not want to be responsible for his family being separated.
The officers also spoke with the three year old, who showed them a fresh, two-inch long wound on her leg. Although she was unable to articulate what caused the injury, she nodded her head “yes” when her aunt asked if defendant had whipped her.
The officers also learned that four days earlier, the seven year old got in trouble and was taken upstairs where defendant attempted to whip her with an extension cord. Because defendant was having difficulty restraining the child while simultaneously whipping her, defendant called for help from Shockley, who then held the child down while defendant whipped her. The seven year old told police that she was naked at the time and was held face up while being whipped on the front of her body. She reported that defendant had been whipping her “for a lot of years,” a fact confirmed by her nine-year-old sister, who said that defendant and Shockley whipped her younger sister five to six times a day on the average of two to three times a week. All of the children confirmed that this type of abuse had been occurring for several years.
Upon learning of the abuse, the children’s two aunts and grandmother confronted defendant, only to be told, “[T]hose are my mother fucking kids and I’ll do whatever I want.”
Shockley admitted to the police that he helped defendant whip the seven year old on October 15. He stated that defendant struck the child so many times—at least eight or nine times—that he felt it was excessive and told her to stop. The child later asked him, “[W]hy didn’t you save me?”
Defendant and Shockley were charged with one count of torturing the seven-year-old child (count 1, Pen. Code, § 206) and four counts of causing corporal injuries to all four children (counts 2 through 5, § 273d, subd. (a)). As to Shockley only, count 6 alleged that he failed to register as a convicted sex offender in violation of section 290, subdivision (g)(3). The complaint also alleged that Shockley had multiple prior convictions within the meaning of section 667.5, subdivision (b).
All further statutory references are to the Penal Code.
On January 30, 2006, pursuant to a negotiated plea agreement, defendant pleaded no contest to the four counts of causing corporal injuries to her children. In exchange, the torture charge was dismissed as to her, and the court agreed to “seriously consider probation.”
The probation department submitted a pre-sentence report in which it recommended that the court deny probation and instead sentence defendant to state prison for the maximum term of 10 years. The trial court then referred defendant to the Department of Corrections for a diagnostic study pursuant to section 1203.03. Consistent with the probation department’s pre-sentence report, the resulting evaluation recommended that defendant be sentenced to state prison, observing that defendant was “likely a poor candidate for probation” and remained “a threat to the well being of her children.”
On August 22, 2006, the trial court denied probation and sentenced defendant to eight years in state prison, consisting of the four-year midterm on count 2, and one-third the four-year midterm (16 months) on each of the remaining three counts, all to run consecutively. In imposing consecutive terms, the court stated, “I’m selecting the consecutive term because each of these additional offenses did happen at different times and occasions, they involve different victims, and different circumstances.”
This timely appeal followed.
II. Discussion
A. Defendant Did Not Waive Her Right to Assert this Argument on Appeal
Preliminarily, the People argue that defendant’s “claim is procedurally barred . . . [by her failure] to object under Blakely[, supra, 542 U.S. 296]or the right to jury trial at her sentencing . . . .” We conclude there was no such waiver.
“Reviewing courts have traditionally excused parties for failing to raise an issue . . . where an objection would have been futile or wholly unsupported by substantive law then in existence.” (People v. Welch (1993) 5 Cal.4th 228, 237.) Defendant was sentenced on August 22, 2006. As the People correctly observe, this was after the United States Supreme Court issued its opinion in Blakely, supra, 542 U.S. 296. The People neglect to mention, however, that sentencing also occurred after the California Supreme Court issued its decision in People v. Black (2005) 35 Cal.4th 1238 (Black I), which held in part that “a jury trial is not required on the aggravating factors that justify imposition of consecutive sentences.” (Id. at p. 1262.) As Black I was the state of the law at the time defendant was sentenced, the trial court was bound to follow it. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Thus, a Blakely objection at the time of her sentencing would have been futile. (See People v. Sandoval (2007) 41 Cal.4th 825, 837, fn. 4 [finding no forfeiture for failure to object because “[h]ad defendant requested a jury trial on aggravating circumstances, that request clearly would have been futile, because the trial court would have been required to follow our decision in Black I and deny the request”].)
We thus turn to the merits of defendant’s claim.
B. Defendant Was Not Entitled to Jury Findings on the Facts Supporting the Imposition of Consecutive Sentences
Black I, supra, 35 Cal.4th 1238 presented a challenge to California’s determinate sentencing law (DSL). (Id. at p. 1244.) Specifically, the California Supreme Court considered “whether a defendant is constitutionally entitled to a jury trial on the aggravating factors that justify an upper term sentence or a consecutive sentence.” (Ibid.) The court answered this question in the negative: “[T]he judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence or consecutive terms under California law does not implicate a defendant’s Sixth Amendment right to a jury trial.” (Ibid.)
Recently, in Cunningham, supra, 549 U.S. ___[127 S.Ct. 856],the United States Supreme Court, applying the principles established in Blakely, supra, 542 U.S. 296, and Apprendi, supra,530 U.S. 466, held that the DSL violates a defendant’s right to a jury trial. “[U]nder the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence.” (Cunningham,at pp. 863-864.)
Based on Cunningham (as well as its predecessors—Blakely and Apprendi), defendant now challenges Black I’s conclusion that a defendant is not entitled to a jury finding on facts supporting the imposition of consecutive sentences. Defendant acknowledges that Cunningham did not address the imposition of consecutive sentences for multiple offenses, focusing solely on the imposition of the upper term sentence on a single offense. She submits, however, that the principles articulated in Cunningham should not be limited to sentences imposed for a single offense and should extend to the imposition of consecutive sentences.
While the United States Supreme Court did not touch on the issue of consecutive sentences in Cunningham, the California Supreme Court did in Black II, supra,41 Cal.4th 799, once again rejecting the same argument defendant makes here: “Cunningham . . . does not undermine our previous conclusion that imposition of consecutive terms under section 669 does not implicate a defendant’s Sixth Amendment rights.” (Id. at p. 821.)
As explained by the Black II court, “Section 669 requires that when a person has been convicted of two or more offenses (whether in the same or separate proceedings), the court must decide whether the terms are to run concurrently or consecutively. If the court fails to direct how the terms are to run, they must be served concurrently.” (Black II, supra, 41 Cal.4th at pp. 820-821.)
Consistent with Black II, as well as Black I before it, we conclude that the trial court’s imposition of consecutive sentences did not violate defendant’s constitutional rights.
III. Disposition
The judgment of conviction is affirmed.
We concur: Kline, P. J., Haerle, J.