Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. SWF012326, Christian F. Thierbach, Judge.
Robert E. Boyce, 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, Senior Assistant Attorney General, Barry Carlton and Rhonda Cartwright-Ladendorf, Supervising Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
McKINSTER Acting P. J.
INTRODUCTION
A jury found defendant guilty of aggravated mayhem (Pen. Code, § 205) and making criminal threats (§ 422). As to the conviction for aggravated mayhem, the jury found true the allegation that defendant personally used a dangerous and deadly weapon during the commission of the offense. (§ 12022, subd. (b)(1).) The court sentenced defendant to state prison for a determinate term of four years plus an indeterminate life term with the possibility of parole. Defendant contends the court erred by (1) not applying section 654 to his sentence for making criminal threats; and (2) sentencing him to the upper term for making criminal threats in violation of his rights to a jury trial and to proof beyond a reasonable doubt. We affirm the judgment.
All further statutory references are to the Penal Code unless otherwise indicated.
In his opening brief, defendant argues the court erred by not staying the sentence for his conviction for making criminal threats (§ 422). In his reply brief, under a single heading, defendant states the court erred by requiring his sentence for making criminal threats to be served consecutively and argues the sentence for making criminal threats should have been stayed. We infer defendant intended to make a single argument: That his sentence for making criminal threats should have been stayed pursuant to section 654.
FACTS
On April 23, 2005, defendant, the victim, and Mr. Rivera were housed at the Southwest Detention Center in Riverside County. The victim was watching television in the dayroom when the sheriff’s deputies announced a lockdown due to a shift change, which requires the inmates to return to their cells. The victim was walking toward his cell when defendant asked him to “come over and talk to him.” The victim approached defendant. When the victim was approximately 18 inches away, defendant cut the victim’s face with a razor blade. Defendant then repeatedly told Mr. Rivera to “[h]old this M and F’er so I can kill him.” Defendant also said to the victim during the incident, “I want to kill you.” The victim flailed as he tried to escape and received cuts on the top of his head, the back of his head, his armpit, and his wrist. The victim tried to maneuver away from defendant and Mr. Rivera by moving between tables in the dayroom. As defendant and Mr. Rivera chased after the victim, the victim yelled, “Get me out.”
Sheriff’s Deputy Morgan heard the victim yell and bang on the door of the dayroom. The deputy then yelled at the inmates “to lock down.” The victim fell to the floor where defendant and Mr. Rivera punched him. Deputy Morgan again commanded the inmates to lockdown, and defendant and Mr. Rivera complied. The cut to the victim’s face reached down to his bone, required numerous stitches, and resulted in a six-inch scar.
The victim testified that he had approximately 100 stitches as a result of the cut to his face. Defendant’s probation report reflects that the victim was given “36 sutures to close his most serious laceration.”
The court sentenced defendant to the upper term of three years for the conviction of making criminal threats and imposed a one-year term for the enhancement of personally using a dangerous and deadly weapon during the commission of the aggravated mayhem. The court also sentenced defendant to an indeterminate life term with the possibility of parole for the conviction for aggravated mayhem. All sentences were ordered to be served consecutively.
DISCUSSION
A. Section 654
Defendant contends the trial court erred by not staying the sentence for his conviction for making criminal threats, pursuant to section 654. Defendant argues that the trial court was incorrect in its finding that he had separate objectives in cutting the victim and threatening the victim. We disagree.
1. Error was not invited
Preliminarily, we address the People’s contention that defendant forfeited this argument for appellate review by inviting the error he now appeals. The People base this argument on the following exchange during defendant’s sentencing hearing:
“The Court: With respect to . . . Count 3, the 422, the court believes that this is a separate and distinct crime, even though it’s part of the same transaction and would not be governed by the provisions of Penal Code Section 654. [¶] [Defendant’s trial attorneys], you want to be heard on that issue?
“[Defendant’s trial attorney]: No, sir.”
“Error is invited only if defense counsel affirmatively causes the error and makes ‘clear that [he] acted for tactical reasons and not out of ignorance or mistake’ or forgetfulness. [Citation.]” (People v. Tapia (1994) 25 Cal.App.4th 984, 1031, italics added.) Defense counsel’s acquiescence in a trial court’s alleged mistake will not constitute invited error unless the record shows that counsel had a tactical purpose in acquiescing. (People v. Moon (2005) 37 Cal.4th 1, 28.)
Defendant’s trial counsel did not invite the court to apply section 654 to defendant’s sentence for making criminal threats; rather, counsel acquiesced to the court’s indicated ruling. Our review of the record convinces us that there was no tactical reason for defendant’s trial counsel not to argue that section 654 should be applied to defendant’s sentence for making criminal threats. Therefore, we conclude the doctrine of invited error does not apply to this issue, and we will discuss the merits of defendant’s contention.
2. The merits
Section 654 provides that a trial court may not punish a defendant under more than one provision of the Penal Code if the defendant’s crimes result from an indivisible course of conduct. (People v. Siko (1988) 45 Cal.3d 820, 823.) Whether a course of conduct is divisible is determined by the intent and objective of the defendant at the time of the offense. (People v. Hawkins (2002) 98 Cal.App.4th 1428, 1442-1443.) “‘[I]f all the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once.’ [Citation.]” (People v. Evers (1992) 10 Cal.App.4th 588, 602.) “However, if the defendant harbored ‘multiple or simultaneous objectives, independent of and not merely incidental to each other, the defendant may be punished for each violation committed in pursuit of each objective even though the violations share common acts or were parts of an otherwise indivisible course of conduct. [Citation.]’ [Citations.]” (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.)
“Whether section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination. [Citations.] Its findings will not be reversed on appeal if there is any substantial evidence to support them. [Citations.] We review the trial court’s determination in the light most favorable to the [People] and presume the existence of every fact the trial court could reasonably deduce from the evidence. [Citation.]” (People v. Jones, supra, 103 Cal.App.4th at p. 1143.)
Defendant’s act of cutting the victim’s face was completed almost as soon as the victim was within arm’s reach of defendant. Defendant’s threats that he wanted to kill the victim were repeated during the incident. The trial court could reasonably infer that in threatening the victim, defendant intended to frighten the victim; whereas in committing aggravated mayhem, defendant intended to physically injure and scar the victim. The evidence that defendant cut the victim’s face, threatened the victim, and then later punched the victim, supports the trial court’s finding that defendant did not have a singular overarching objective. Instead, the evidence supports the trial court’s finding that defendant committed separate, albeit related, crimes during the course of a criminal transaction in which he intended to injure and frighten the victim. Accordingly, we find substantial evidence supports the trial court’s finding that defendant harbored two independent objectives that were not incidental to one another when committing the crimes at issue in this case. Consequently, we find no error in the trial court’s decision not to apply section 654 to defendant’s sentence for making criminal threats.
Defendant argues that, in addition to making a verbal threat, the offense of making criminal threats requires “an immediate prospect of execution of the threat,” (§ 422) and, therefore, defendant’s action of cutting the victim is indivisible from his threats toward the victim because cutting the victim provided an immediate prospect of executing the threat of killing the victim. We disagree. The immediate prospect of executing the threats could be found in defendant’s actions of chasing the victim around the dayroom or punching the victim when he fell to the floor. Defendant committed multiple and divisible acts with distinct objectives. Section 654 was not violated by imposing prison terms for both the aggravated mayhem and criminal threat convictions.
B. Upper Term
1. Facts related to the upper term
When the trial court sentenced defendant to the upper term for his conviction for making criminal threats, the court made the following pronouncement: “The upper term is selected because the court believes the circumstances in aggravation outweigh any circumstances in mitigation, and in fact I find absolutely no circumstances in mitigation to exist. [¶] The court does find pursuant to [California Rules of Court, r]ule 4.42[1](a)(1), (a)(2), (a)(8), and (b)(1), that the aggravating factors set forth in those particular court rules again far outweigh any mitigating factors. That is the reason the court is selecting the upper term of three years.”
All further rule references are to the California Rules of Court unless otherwise indicated.
Rule 4.421(a)(1) addresses crimes involving “great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness.” Rule 4.421(a)(2) provides for an upper term sentence for crimes committed when a defendant was “armed with or used a weapon.” Rule 4.421(a)(8) authorizes an upper term sentence if the “the crime was carried out [in a manner] indicat[ing] planning, sophistication, or professionalism.” Rule 4.421(b)(1) applies to defendants that have “engaged in violent conduct that indicates a serious danger to society.”
2. Defendant’s contention
Defendant argues the trial court violated his rights to a jury trial and to proof beyond a reasonable doubt when it found facts supporting the imposition of the upper term for his conviction for making criminal threats.
“Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt,” in accordance with the Sixth Amendment. (Apprendi v. New Jersey (2000) 530 U.S. 466, 490.) If a jury did not find the facts to be true beyond a reasonable doubt, then it must be determined if one of the two recognized exceptions to a jury’s finding is applicable. (People v. Sandoval (2007)41 Cal.4th 825, 836-837.) The two exceptions are: (1) a defendant’s prior criminal conviction does not need to be found true by a jury, and (2) any facts that the defendant admits and that qualify as aggravating factors do not need to be submitted to the jury. (Ibid.) If a jury did not find the facts of an aggravating factor to be true beyond a reasonable doubt and neither exception is applicable, then it must be concluded that the trial court violated the defendant’s Sixth Amendment right to a jury trial by sentencing the defendant to the upper term. (Sandoval, at pp. 836-837.)
The trial court did not rely on prior criminal convictions as an aggravating factor in imposing the upper term, and defendant did not admit the facts of the aggravating factors applied by the court. Accordingly, we conclude the trial court violated defendant’s rights to a jury trial and to proof beyond a reasonable doubt by sentencing defendant to the upper term.
Defendant was housed at the Southwest Detention Center at the time of this incident. Defendant’s probation report indicates that he was at the center due to a warrant for failing to appear for an arraignment hearing “on an assault and exhibiting firearm charges,” rather than for a conviction. Defendant’s criminal record reflects one sustained juvenile petition and one conviction as an adult; however, he had been discharged from parole at the time of this incident.
3. Harmless error
If defendant’s Sixth Amendment rights have been violated due to the imposition of an upper term sentence, then we apply the harmless-beyond-a-reasonable-doubt standard of review, set forth in Chapman v. California (1967) 386 U.S. 18, 24. (People v. Sandoval, supra,41 Cal.4th at p. 838.) We apply a three-part test for analyzing whether the court’s error was harmless. First, we examine whether the record contains all the pertinent facts concerning the aggravating factor. (Ibid.) Second, we analyze whether the language of the aggravating factor is so vague as to create a subjective standard that does not easily lend itself to review. (Id. at p. 840.) Third, we determine whether the facts supporting the aggravating factor were contested at trial in such a manner that it would make it difficult to determine beyond a reasonable doubt how a jury would interpret the evidence. (Id. at p. 841.) After applying this test, if we are able to determine beyond a reasonable doubt that a jury would have found one aggravating factor to be true beyond a reasonable doubt, then the trial court’s error of not submitting the aggravating factors to the jury could properly be found harmless. (Id. at p. 839.)
Defendant acknowledges that this court must follow our Supreme Court’s decision in People v. Sandoval, supra, 41 Cal.4th 825; however, to preserve the issue for federal review, defendant objects to the imposition of the upper term sentence “as violating his right to due process notice and ex post facto.”
We note that when “multiple crimes are so closely connected in time and place as to comprise a single criminal transaction a [jury] may impose the aggravated term for one of the crimes based upon” findings related to “the entire criminal transaction.” (People v. Coulter (1983) 145 Cal.App.3d 489, 491-492.) In other words, when considering circumstances in aggravation, the trier of fact may look to the “‘“attendant facts”’” and “‘“the surroundings at the commission of an act.”’” (People v. Bradford (1995) 38 Cal.App.4th 1733, 1739.) “‘“Circumstances” include “practically everything which has a legitimate bearing” on the matter in issue. [Citations.]’ [Citation.]” (Ibid.)
a. First factor in aggravation
The first factor in aggravation applied by the court was that defendant’s criminal threats involved “great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness.” (Rule 4.421(a)(1).)
We conclude the record contains all the pertinent facts concerning this aggravating factor because the victim and witnesses gave detailed accounts of the circumstances surrounding the incident. Defendant contends that because his defense was based upon a lack of specific intent to injure the victim, rather than being innocent of injuring the victim, he did not have any reason or opportunity to present evidence regarding the aggravating factors; however, defendant does not indicate what necessary evidence is lacking from the record or how his defense to the aggravated mayhem charge affected the evidence regarding the criminal threats charge. Accordingly, we infer defendant is speculating that there is further evidence to offer and speculation cannot support reversal of a judgment. (People v. Gray (2005) 37 Cal.4th 168, 230.)
We find the language of the aggravating factor is not so vague as to create a subjective standard in this case because the evidence is undisputed that the victim was already suffering from a severe cut to his face at the time defendant began threatening him and chasing him. The clarity of the evidence does not require us to make an imprecise or comparative evaluation of the facts; therefore, we conclude the language of the aggravating factor will not cause a subjective review of the evidence.
Furthermore, because the facts are undisputed, we conclude that it is possible to determine beyond a reasonable doubt how the jury would interpret the evidence.
The victim testified that defendant cut his face, causing a severe laceration, as soon as the victim was within 18 inches of defendant. Defendant then told the victim that he wanted to kill him and commanded Mr. Rivera to hold the victim so that he could kill him. Defendant employed Mr. Rivera as his accomplice to terrorize the victim as the victim tried to escape. When the victim fell to the floor, he was punched until a sheriff’s deputy came to his aid. We conclude beyond a reasonable doubt that if this aggravating factor had been submitted to the jury, the jury would have concluded beyond a reasonable doubt that defendant’s act of threatening the victim was committed with a high degree of cruelty, viciousness, or callousness.
b. Second factor in aggravation
Another aggravating factor applied by the court was that defendant’s threats were “carried out [in a manner] indicat[ing] planning, sophistication, or professionalism.” (Rule 4.421(a)(8).)
As to this factor, we again conclude that the record contains all the pertinent facts because the victim and witnesses gave detailed accounts of the incident.
Whether the crime indicates planning, sophistication, or professionalism does not require a quantitative or comparative evaluation of the facts because the evidence is undisputed with the exception of minor details, such as the number of stitches received by the victim and, therefore, the aggravating factor easily lends itself to review.
Again, the evidence concerning the incident is largely undisputed, which causes us to conclude that it will not be difficult to determine how a jury would interpret the facts.
The victim was in the dayroom watching television. Defendant waited until the deputies announced a lockdown to attack the victim. Defendant had a weapon with him in the dayroom. Defendant had an associate with him, Mr. Rivera, who he instructed to hold the victim so that he could kill the victim. Defendant then told the victim that he wanted to kill him. We conclude beyond a reasonable doubt that had this aggravating factor been submitted to the jury, the jury would have concluded beyond a reasonable doubt that the circumstances surrounding defendant’s crime of threatening the victim indicated that the act had been planned because defendant waited until the deputies were changing shifts to threaten the victim. Also, defendant had an associate present to aid him in threatening, chasing, and punching the victim.
c. Third factor in aggravation
The court also found true the aggravating factor that “defendant was armed with or used a weapon at the time of the commission of the crime.” (Rule 4.421(a)(2).) Defendant essentially argues that it is an impermissible dual use of facts to impose the upper term for his conviction for criminal threats based upon being armed with a weapon because he has already suffered an enhanced sentence for his conviction for aggravated mayhem, due to personally using a dangerous and deadly weapon during the commission of the offense. (§ 12022, subd. (b)(1).)
Defendant does not cite legal authority to support his contention; however, we infer that he is basing his argument upon section 1170, subdivision (b), which provides in part: “[T]he court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law.” Rule 4.420(c), in turn, states: “To comply with section 1170[, subdivision ](b), a fact charged and found as an enhancement may be used as a reason for imposing the upper term only if the court has discretion to strike the punishment for the enhancement and does so.”
We assume, without deciding, that defendant’s argument is correct. Accordingly, we will not rely on the fact that defendant was armed with or used a weapon at the time of the commission of the crime to find harmless the court’s violation of defendant’s rights to a jury trial and to proof beyond a reasonable doubt.
d. Fourth factor in aggravation
The court also applied the upper term based upon its finding that defendant “engaged in violent conduct that indicates a serious danger to society.” (Rule 4.421(b)(1).)
We conclude that the record does not contain all the facts necessary to support this aggravating factor because it is unclear what motivated defendant to attack the victim. Although the circumstances of defendant threatening the victim were violent, we cannot find beyond a reasonable doubt that a jury would have concluded beyond a reasonable doubt that defendant’s threats indicate that he is a serious danger to society because it is unclear what prompted defendant to threaten the victim.
e. Conclusion
We have concluded beyond a reasonable doubt that a jury would find beyond a reasonable doubt that (1) defendant’s act of threatening the victim involved a high degree of cruelty, viciousness, or callousness, and (2) the threats were carried out in a manner that indicates planning. Accordingly, we find the court’s error to be harmless.
DISPOSITION
The judgment is affirmed.
We concur: RICHLI J. GAUT J.