Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. MA026559, Brian C. Yep, Judge.
Edward J. Haggerty, 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, Assistant Attorney General, Jason Tran and Colleen M. Tiedemann, Deputy Attorneys General, for Plaintiff and Respondent.
ASHMANN-GERST, J.
Carlos Alberto Jimenez appeals from the judgment resentencing him following remand after a previous appeal from his convictions of first degree robbery (Pen. Code, § 211, count 1), first degree burglary (§ 459, count 2), carjacking (§ 215, subd. (a), count 3), assault with intent to commit a felony (§ 220, count 4), three counts of forcible rape (§ 261, subd. (a)(2), counts 5, 6 & 7), three counts of forcible oral copulation (§ 288a, subd. (c)(2), counts 10, 11 & 12), sexual penetration by foreign object (§ 289, subd. (a)(1), count 13), attempted forcible rape (§§ 664/ 261, subd. (a)(2), count 14), and attempted sodomy by use of force (§§ 664/286, subd. (c)(2), count 15). Defendant admitted a prior felony strike within the meaning of sections 1170.1, subdivisions (a) through (d), 667, subdivisions (a) and (b) through (i) and a prior prison term within the meaning of section 667.5, subdivision (b). The trial court sentenced defendant to a determinate prison term of 87 years plus an indeterminate term of 30 years to life. The sentence included mandatory, full, consecutive sentences pursuant to section 667.6, subdivision (d) on counts 5, 6, 10, 11, 12 and 13, based upon the trial court’s finding that those offenses occurred on “separate occasions.”
All further statutory references are to the Penal Code unless otherwise indicated.
On the prior appeal, we concluded that the sexual penetration by foreign object offense in count 13 was not committed on a “separate occasion,” under the mandatory language of section 667.6, subdivision (d), and therefore could not receive a full, consecutive sentence under that section. We remanded the matter for the trial court to determine whether it would exercise its discretion to impose full, consecutive sentences on that count under the permissive language of section 667.6, subdivision (c). On remand, the trial court declined to exercise its discretion under section 667.6, subdivision (c), instead, sentencing defendant on count 13 to the midterm of six years, doubled as a second strike, to run concurrently with the other sentences imposed.
On this appeal, defendant revisits the imposition of full, consecutive terms under section 667, subdivision (d) and contends that it violates his Sixth Amendment right to a jury trial and Fourteenth Amendment right to due process as articulated in Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi), Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and culminating most recently in Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856] (Cunningham), an issue previously raised in the first appeal.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
As the issues on this appeal do not turn on the specific facts of this case, we present only an abbreviated factual statement.
On August 7, 2001, defendant entered Nicole W.’s (Nicole) residence in Lancaster and raped her in her bedroom. He then moved her to a spare bedroom where he again raped her, committed two acts of oral copulation, attempted to rape her and sexually penetrated her by a foreign object. He then moved her again to a spare bathroom where he committed another act of oral copulation and rape before returning to the master bedroom and attempting to sodomize her. Defendant then left the house, taking various items of personal property as well as Nicole’s car.
Defendant was convicted of three counts of rape, three counts of oral copulation, unlawful sexual penetration, one count of attempted rape, one count of attempted sodomy, one count of burglary, one count of robbery, one count of carjacking, and one count of assault with intent to commit a felony. The trial court sentenced him on count 3, carjacking, the base count, to the midterm of five years doubled as a second strike, on count 7, rape, to 15 years to life doubled as a second strike, on counts 5 and 6 (rape) and counts 10 through 13 (oral copulation and penetration with a foreign object) to full, consecutive sentences of six years doubled as a second strike, on each of counts 1 (burglary), 2 (robbery) and 4 (assault) to a concurrent sentence of the midterm of four years, and on each of counts 14 (attempted rape) and 15 (attempted sodomy) to a concurrent sentence of the midterm of three years. In addition, a five-year habitual offender enhancement under section 667, subdivision (a) was added to the aggregate sentence.
On counts 5, 6, 10, 11, 12, and 13, the trial court imposed the full, consecutive sentences pursuant to section 667.6, subdivision (d), which mandated such sentences if the offenses were committed on “separate occasions.” It found that defendant had a “reasonable opportunity to reflect on his actions and continued to resume sexually assaultive behavior . . . .”
In his prior appeal, defendant claimed, among other contentions, that the four sex offenses committed in the spare bedroom, counts 6, 10, 11 and 13, were not committed on “separate occasions” and thus should not have received full, consecutive sentences, but rather sentences of one-third the midterm, as is the general rule for consecutive sentencing, as set forth in section 1170.1, subdivision (a). He also claimed that the trial court erred in failing to adequately explain its reasons for finding “separate occasions,” and that imposition of consecutive sentences under section 667.6, subdivision (d) deprived him of his right to a jury determination beyond a reasonable doubt on the question of “separate occasions,” as articulated in Apprendi and its progeny. Finally, defendant claimed that the trial court erred in failing to stay the sentences on the unlawful penetration by foreign object and two forcible oral copulation convictions, the assault with intent to commit a felony conviction, and the burglary conviction.
In our decision filed July 27, 2006, we concluded that the trial court did not err in finding that the sex offenses in the spare bedroom, other than penetration by foreign object, were committed on “separate occasions” and that mandatory, full, consecutive sentences on those convictions under section 667.6, subdivision (d) were appropriate. But we also concluded that the penetration by foreign object offense in count 13 was not accomplished on a “separate occasion” and therefore subdivision (d) of section 667.6 did not authorize imposition of a full, consecutive sentence on that conviction. We could not discern from the record whether the trial court would impose a full, consecutive sentence on that conviction under the permissive language of section 667.6, subdivision (c). We also rejected defendant’s Blakely challenge that full, consecutive sentences under section 667.6, subdivision (d) violates the precepts of that decision because the finding of “separate occasions” was not made by a jury beyond a reasonable doubt. Finally, we decided that the trial court erred in failing to stay the assault conviction and either the burglary or robbery convictions.
We therefore remanded the matter to the trial court with the following directions: “(1) to determine whether count 13 should be sentenced under section 667.6, subdivision (c), or otherwise within its discretion, consistent with this decision; (2) to provide a specific statement of reasons, separate from those justifying the decision merely to sentence consecutively, if the trial court resentences count 13 under section 667.6, subdivision (c); (3) to stay execution of sentence of either the burglary conviction or the burglary and robbery convictions; and (4) to stay execution of sentence on the assault with intent to commit a felony conviction. The trial court is further directed to amend the abstract of judgment accordingly.”
On remand, the trial court declined to exercise its discretion under section 667.6, subdivision (c), instead, sentencing defendant on count 13 to the midterm of six years, doubled as a second strike, to run concurrently with the other sentences imposed. The trial court also considered the implications of Cunningham, supra, 549 U.S.__ [127 S.Ct. 856], an opinion rendered after our prior decision in this matter, and concluded that it was only applicable to upper term sentences and not to consecutive sentences. Defendant’s counsel objected to the sentence on that ground.
Although remand was only for resentencing of specified items, the trial court restated defendant’s entire sentence.
DISCUSSION
I. The Cunningham issue is properly before this court.
Defendant contends that imposition of full, consecutive sentences is violative of his Sixth Amendment right to a jury trial, as articulated in Cunningham. But the counts to which this sentence was applied were not the subject of our remand from the prior appeal. Therefore, on July 10, 2007, after receipt of defendant’s briefs raising the Cunningham issue, we asked for supplemental briefing on the question, “Is the issue of the constitutionality of appellant’s full-term consecutive sentences not properly before this court in this appeal in light of the limited nature of the remand in People v. Jimenez, B183772, which did not involve the counts as to which appellant now challenges his sentence? (See People v. Murphy (2001) 88 Cal.App.4th 392, 395-397 [(Murphy)].)” Defendant submitted a supplemental letter brief in which he argues that Murphy is inapposite and should be limited to cases where “in the initial sentencing, prior appeal and resentencing, the defendant failed to assert the issue he first raises on appeal following remand.” We agree.
In Murphy, the defendant was convicted by jury of petty theft with three prior first degree burglary convictions which qualified as strikes under the three strikes law. The trial court sentenced him to a prison term of 25 years to life. (Murphy, supra, 88 Cal.App.4th at p. 393.) On appeal, the Court of Appeal remanded for the trial court to decide whether to exercise its discretion to vacate one or more of the strikes under People v. Superior Court (Romero)(1996) 13 Cal.4th 497 (Romero). (Murphy, supra, at p. 394.) On remand, the trial court rejected the defendant’s Romero motion and his claim that his sentence constituted cruel and unusual punishment. (Ibid.) The defendant appealed again, arguing that the trial court erred in rejecting the two contentions he made on remand, and adding the additional contention that the dual use of his convictions to elevate his petty theft offense to a felony and to invoke the three strikes law was improper. (Ibid.) The defendant had not challenged his sentence on the dual use ground at his original sentencing, on his first appeal, or in the trial court on remand. (Id. at p. 395.)
The Court of Appeal noted that generally, the scope of the issues on a second appeal is determined by the nature of the remand order. (Murphy, supra, 88 Cal.App.4th at p. 397.) It stated: “[W]e remanded this case to the trial court for the sole purpose of deciding whether to exercise its discretion under Romero to vacate the jury’s strike findings (on the possible ground, among others, a three strikes sentence might amount to cruel or unusual punishment). We affirmed the judgment in all other respects. We did not reverse Murphy’s sentence. On remand, the court refused to vacate the jury’s strike findings. . . . It did not resentence him . . . .” (Id. at pp. 394-395.) As the trial court chose not to strike any of the defendant’s strikes, the matter of his sentence was not before the Court of Appeal. The time for him to raise the dual use issue was in his first appeal.
In a footnote, the Court of Appeal nonetheless indicated that were it to consider the dual use issue, it would reject it.
We conclude that, although the issue raised in this appeal is not technically within the scope of the remand order, the extraordinary circumstances presented militate against application of Murphy,which is factually distinguishable. First, unlike in Murphy, defendant previously raised the Blakely/Cunningham issue on his first appeal and in the trial court on remand. Second, also unlike in Murphy, the remand here did involve resentencing, albeit not of that portion of the sentence that defendant now challenges. Third, the facts here are unusual. As a result of the meteoric changes in the law, as reflected in the United States Supreme Court’s decision in Apprendi and its progeny, including its recent decision in Cunningham,we find nothing dilatory in defendant’s raising new arguments based upon the Cunningham decision, which had not been rendered when this matter was previously before us.
II. Consecutive sentencing is not subject to Cunningham.
Defendant contends that imposition of full, consecutive sentences, pursuant to section 667.6, subdivision (d), was based on facts not found by a jury beyond a reasonable doubt and therefore violates his constitutional rights to a jury trial and due process as articulated in the United States Supreme Court decisions in Apprendi, Blakely, and Cunningham. This contention lacks merit.
In Blakely, the United States Supreme Court held that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum, that is, “the maximum sentence a judge may impose solely on the basis of facts reflected in the jury verdict or admitted by the defendant,” must be determined by a jury and proved beyond a reasonable doubt. (Blakely, supra, 542 U.S. at p. 303) Cunningham found upper term sentences under California’s determinate sentencing law to be unconstitutional because the “statutory maximum” was presumed in section 1170, subdivision (b) to be the midterm. Aggravating factual findings required to impose the upper term increase the statutory maximum. (Cunningham, supra, 549 U.S__ [127 S.Ct. at p. 868].)
But the underlying rationale of Apprendi and its progeny is that a crime, together with either a related sentence enhancement or a factual prerequisite to eligibility for a greater punishment, must be considered as the functional equivalent of a single greater crime. (See People v. Sengpadychith (2001) 26 Cal.4th 316, 326.) Apprendi, Blakely and Cunningham protect the defendant’s constitutional right to a jury trial on all elements of the crime, whether expressly identified as such or labeled by a legislature as sentencing factors. (See People v. Black (2005) 35 Cal.4th 1238, 1262-1263 (Black I) [which, although not binding in light of the United States Supreme Court’s order vacating the judgment, remains persuasive on points not addressed in Cunningham].)
That principle, however, is inapplicable to a trial court’s decision whether to require that sentences on two or more offenses be served consecutively because the jury’s verdict authorizes the statutory maximum sentence for each offense for which the defendant has been convicted. When a judge considers the circumstances of those offenses and the defendant’s criminal history in determining whether the authorized sentences are to be served consecutively, he or she simply cannot be said to be making a finding that is the functional equivalent of increasing the punishment for a crime beyond the statutory maximum.
Moreover, unlike a person under California’s former determinate sentencing law who had reason to believe he or she would be sentenced to the middle term absent certain factual findings of aggravating factors, a person committing multiple offenses has no reason under the applicable statutes to believe that he or she will not be sentenced consecutively. Although the code had previously presumed a middle term sentence absent the making of certain findings, it contains no such presumption of concurrent sentences. (See People v. Bradford (1976) 17 Cal.3d 8, 20 [“trial court has discretion to determine whether several sentences are to run concurrently or consecutively”].)
In March 2007, after the decision in Cunningham, the California Legislature revised section 1170, subdivision (b) of the DSL to eliminate the middle term as the statutory presumption.
It is also significant that the California Supreme Court has twice held that the principles discussed in Cunningham do not apply to consecutive sentencing imposed pursuant to section 669. (Black I, supra, 35 Cal.4th at pp. 1261-1264; People v. Black (2007) 41 Cal.4th 799 (Black II).) In Black II, rendered after Cunningham, our Supreme 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 . . . .’” (Black II, supra, at p. 823, quoting from Black I, supra, at p. 1264).
We see no reason why this same conclusion should not be applicable to consecutive sentencing under section 667.6, subdivision (d) as well. A full, separate, and consecutive sentence must be imposed for each violation of enumerated offenses if the trial court finds that the “crimes . . . involve the same victim on separate occasions.” (§ 667.6, subd. (d).) A full, separate, and consecutive sentence may be imposed for each violation of those enumerated offenses if the trial court finds that “the crimes involve the same victim on the same occasion.” (§ 667.6, subd. (c).) Consequently, the defendant was eligible for full, consecutive sentences for the enumerated offenses with or without the special finding of “separate occasions.” Hence, for the specified offenses, full, consecutive sentences are the statutory maximum. Because there is no increase in punishment beyond the statutory maximum, consecutive sentencing under section 667.6, subdivision (d) for same victim on separate occasions raises no due process or Sixth Amendment concerns.
Given our conclusion that Cunningham is inapplicable to full, consecutive sentencing under section 667.6, we need not consider defendant’s additional contention regarding a lack of legislation to set forth a procedure for finding factors in aggravation.
DISPOSITION
The judgment is affirmed.
We concur: DOI TODD Acting P. J., CHAVEZ, J.