Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 05NF4922, Robert R. Fitzgerald, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Kristin A. Erickson, 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, Assistant Attorney General, Peter Quon, Jr., and Stephanie H. Chow, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
ARONSON, J.
A jury convicted Gi Jeon Moon of assault with intent to commit rape. The trial judge suspended imposition of sentence and placed defendant on probation for five years on condition he serve one year in jail and comply with other probation terms. We affirmed the judgment in a nonpublished opinion. (People v. Moon (Sept. 21, 2007, G037464).)
A different judge subsequently found defendant violated the terms of his probation, and sentenced him to state prison for the aggravated term of six years. Defendant contends the imposition of the upper term violated his Sixth Amendment right to a jury trial because the judge made his own factual findings to support the upper term. We agree. (Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham); Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi).) For the reasons expressed below, we conclude the error requires reversal and therefore remand for resentencing.
I
Factual And Procedural Background
In summarizing the pertinent facts, we quote extensively from our earlier nonpublished opinion.
“An information charged Moon with assault with intent to commit rape. (Pen. Code, § 220.) The evidence at the jury trial, conducted in June 2006, disclosed that defendant met Jung S. at a drunk-driving class in 2003 and they reconnected in November 2005. She socialized with him and had previously spent the night in a guest room at the home where he lived, but they never had a sexual relationship.
“On December 16, defendant asked Jung to come over for drinks. She and a female friend drove separately to his Buena Park residence after picking up food and 12-18 cans of beer. Jung drank three to five beers. Defendant also drank but did not become drunk. After her friend left, Jung determined she should not drive and decided to spend the night. Defendant persuaded her to sleep in his room because he had an electric blanket. She fell asleep on his bed fully clothed but awoke to find defendant touching her stomach. Defendant was next to her on the bed wearing only a T-shirt, and his penis touched her thigh. She pushed his hand and said ‘go away.’ He got on top of her and tried to pull down her pants. She resisted by pulling up her pants. He hit her face with his fist, pulled her off the bed by her hair and kicked her. When she climbed back on the bed, he shouted at her, held her hair, squeezed her neck, and told her to quit being a bitch. She felt like she was suffocating.
“He stopped hitting her, took several heavy breaths, and she suggested they go into the kitchen. She lied to him, telling him she could not have sexual relations because she recently suffered a miscarriage. He told her ‘[w]e must do this today’ and that she was ‘lucky’ because his ‘friends used to break girls’ legs and did this and then made them pregnant.’ She said she would have sex but he had to buy her some medicine to stop her nose from bleeding and told him about a 24-hour pharmacy. When he left to buy the medicine, she fled and telephoned police. Jung admitted she bit defendant, and may have scratched him.
“When police arrived, Jung was shaking and crying, bleeding from her nose and mouth, her left eye was puffy, and she had an abrasion on the bridge of her nose. There was blood on her shirt and right shoe, her hair was mussed, and her pants zipper was broken. She said she had been raped. On cross-examination, Jung clarified that at some point during the struggle she pushed defendant off the bed. He got back on top of her. Sometime after this he hit her, pulled her hair, and knocked her off the bed and kicked her. She did not tell officers about defendant’s statement they ‘must do it today.’
“Defendant told the police officer he and the victim were not dating or in a sexual relationship and that he had slept next to her on previous occasions without touching her. When Jung agreed to stay in his room, he thought they were going to have sex. He took off his pants and laid next to her, touched her, and tried to take her pants down. He could not get her pants lower than her buttocks and could not get her underwear off because she kicked him off the bed. He fell off and bumped his head on the television. He became angry, and admitted slapping her twice, but denied punching her. He got on top of her again and she bit him. He pushed her off him to prevent her from biting his forearm, grabbed her neck, and kicked her in the buttocks and thigh area. He also threw a lamp down on the floor, but did not recall if he hit her with it. He admitted feeling angry and humiliated. They went into the kitchen and she told him about her recent abortion. He offered to wipe the blood off her nose and mouth, but she refused.
“Defendant told the officer it was not physically possible to rape a woman unless you tie them up. He had scratch marks on his face and back, redness around his left shoulder, and a bite mark on his right forearm. The officer did not see a bump on defendant’s head. There was blood and hair on the bedroom floor and bedspread, and the room showed signs of a struggle.
“Defendant’s landlord testified Jung had spent the night with defendant in his room three or four times. He had never seen them hug or kiss, but they did hold hands. Defendant had told the landlord he was interested in being more than friends with Jung.”
The jury convicted defendant of assault with intent to commit rape. Judge Stanford, the trial judge, concluded this was an unusual case warranting probation. (Pen. Code, § 1203.065 [probation permitted for defendants convicted of assault with intent to commit rape only “in unusual cases where the interests of justice would best be served”].) Judge Stanford cited the minor nature of the victim’s injuries, observed “the entire event [] was alcohol induced on both parties’ parts,” and noted defendant’s only prior convictions were for two alcohol-related misdemeanor offenses. The court placed defendant on probation for five years on condition defendant serve one year in jail and obey other probation terms imposed.
Defendant was released from jail on August 16, 2006. On September 12, the probation department filed a petition alleging defendant had violated his probation by failing to reside at the address he gave to the probation department, and providing the same incorrect address when registering as a sex offender with the Buena Park Police Department. The probation petition also alleged defendant failed to cooperate by being argumentative and hostile during a meeting with a probation officer on September 7. The trial court revoked probation on the first allegation and set a probation revocation hearing in October.
At the formal hearing on October 3 before retired Judge Robert Fitzgerald, Orange County Probation Officer Andrew Parker testified defendant reported to the probation office as directed on September 7 for indoctrination on the terms and conditions of his probation. Defendant completed a form providing a home address on Barrett Circle in Buena Park. When Parker attempted to conduct a routine patsearch to check for weapons or contraband, defendant began “yelling angrily” and took a “hostile stance,” stating he did not understand why he was being searched. He also asserted he did not want to be on probation and would rather be in jail. Parker ordered him to sit down, but defendant continued to yell objections. Parker called for assistance and defendant was subsequently arrested.
Defendant testified he did not have an address on September 7, but, feeling “obligated to give a certain address,” he provided the one listed on his driver’s license, which “was the only address” he knew. He knew he could not return to that address because his former roommate had moved out, so he reported to the police department he was homeless, and asked what he should do. They told him to report within 30 days. He phoned his lawyer, explained he was changing residences every few days and asked for advice. The lawyer told him to report periodically, either every 30 or 90 days, and request a Korean interpreter because of language difficulties.
On September 7, the officers did not explain why they were conducting the patsearch. He denied getting angry as described by the probation officer, stating, “they kicked me first.” He acknowledged the trial court at his August 11 sentencing advised him that he must submit to searches and obey all orders, rules, regulations, and directives of the probation department, but he “didn’t know that I also needed to submit when they kicked my body.” He was arrested before he had a chance to tell the probation officers that he was homeless.
Judge Fitzgerald found all allegations of the petition true and sentenced defendant to the aggravated term, stating defendant’s behavior indicates violence and acts disclosing a high degree of cruelty and viciousness. (Cal. Rules of Court, rule 4.421(a)(1).) The court also found that the victim was “particularly vulnerable” (rule 4.421(a)(3)), and defendant engaged in violent behavior indicating a serious danger to society (rule 4.421(b)(1)).
II
Discussion
A. The Violation of Defendant’s Right to a Jury Trial on Aggravating Factors Requires a New Sentencing Hearing
Relying on Apprendi, supra, 530 U.S. 466 and its progeny, defendant contends Judge Fitzgerald violated his Sixth Amendment right to a jury trial when he imposed the aggravated term after revoking defendant’s probation. We agree.
In Apprendi, the United States Supreme Court held that, “[o]ther 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.” (Apprendi, supra, 530 U.S. at p. 490.) In Cunningham, supra, 549 U.S. ___ [127 S.Ct. 856, 871], the Supreme Court concluded the middle term, not the upper term, constituted the relevant statutory maximum under California’s determinate sentencing law, explaining “‘[T]he relevant “statutory maximum[]”’. . . ‘is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.’” (Id. at p. 860.) Defendant’s right to a jury trial, however, is not violated if “one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (People v. Black (2007) 41 Cal.4th 799, 816 (Black).)
The Attorney General argues the jury’s verdict was tantamount to a factual finding that defendant’s crime demonstrated a high degree of cruelty and that he posed a serious danger to society. According to the Attorney General, these findings were “inherent” in the verdict, although not expressly stated by the jury. We disagree. Simply put, the jury was never asked to determine whether defendant’s assault demonstrated a high degree of cruelty or whether he posed a serious danger to society. These factors are not elements of the crime of assault with intent to commit a sexual offense. Thus, we may not infer the jury found these aggravating circumstances to be true when they were not expressly presented to the jury and were not material to their determination. (See People v. Sandoval (2007) 41 Cal.4th 825, 837-838 (Sandoval) [jury verdict convicting defendant of voluntary manslaughter and attempted voluntary manslaughter did not established defendant’s acts involved high degree of cruelty or that victim was particularly vulnerable].) Finally, defendant did not admit any facts relied upon by the trial court to impose the upper term, and the trial court did not rely on defendant’s prior convictions, which were limited to alcohol-related misdemeanors. Consequently, the trial court’s upper term sentence violated defendant’s Sixth Amendment right to a jury trial because no aggravating factor relied upon by the trial court fit within a recognized exception to Apprendi.
We now turn to whether the error here requires reversal. The violation of defendant’s right to a jury trial on aggravating circumstances is reviewed under the harmless error standard of Chapman v. California (1967) 386 U.S. 18 (Chapman). As the Sandoval court explained, to declare the error harmless, we must conclude beyond a reasonable doubt that the jury “unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury.” (Sandoval, supra, 41 Cal.4th at p. 839.) In evaluating whether the error is harmless, the Supreme Court cautioned that “the reviewing court cannot necessarily assume that the record reflects all of the evidence that would have been presented had aggravating circumstances been submitted to the jury.” (Ibid.) Because aggravating circumstances are based on facts that are not elements of the offense, they necessarily are “not part of the charge” and therefore were not directly at issue in the trial. (Ibid.)
That is the case here. None of the aggravating factors Judge Fitzgerald relied on were relevant issues at trial. As to whether defendant’s acts demonstrated great violence disclosing a high degree of cruelty, defendant conceded at trial he assaulted the victim, but claimed he lacked the intent to rape, arguing he struck the victim only after she kicked him and he fell on his head. Thus, defendant relied on evidence of the assault to argue he impulsively responded to her actions solely out of anger, and not a desire to sexually assault the victim. Whether the victim was particularly vulnerable or whether defendant’s acts demonstrated he posed a serious danger to society also were irrelevant matters for trial and therefore defendant had neither the incentive nor the opportunity to present evidence on these factors.
We are also mindful of the Supreme Court’s observation that an aggravating circumstance resting “on a somewhat vague or subjective standard” increases the reviewing court’s difficulty in concluding the error was harmless. (Sandoval, supra, 41 Cal.4th at p. 840.) As Sandoval explained, “[m]any of the aggravating circumstances described in the rules require an imprecise quantitative or comparative evaluation of the facts. For example, aggravating circumstances set forth in the sentencing rules call for a determination as to whether ‘[t]he victim was “particularly vulnerable” . . . .’” (Ibid., original italics.) We agree our task in evaluating the prejudicial effect of the error is complicated by the vague and imprecise factors supporting the aggravated term. As the Supreme Court observed, whether the victim was “particularly vulnerable” is an imprecise and indefinite formulation. Similarly, whether the defendant poses a “serious danger” to society, or whether his acts disclose a “high degree of cruelty,” suffer from the same infirmity.
With these principles in mind, and based on our review of the record, we cannot say beyond a reasonable doubt the victim was particularly vulnerable or that defendant posed a serious danger to society. Judge Stanford implicitly rejected these factors when he granted probation. We are reluctant to say beyond a reasonable doubt the jury would have found these factors true when the veteran jurist who presided over the trial and observed the demeanor of the witnesses did not make these findings when given the opportunity to do so.
In 2006, California Rules of Court, rule 4.433(b) provided that, “If the imposition of sentence is to be suspended during a period of probation after a conviction by trial, the trial judge shall make factual findings as to circumstances which would justify imposition of the upper term or lower term if probation is later revoked, based upon the evidence admitted at trial.”
Whether defendant’s acts disclosed a high degree of cruelty is a closer question. Any assault with the intent to rape is an act of cruelty, designed to demean and humiliate the victim. Defendant’s conduct is no exception. But “[a]n aggravating circumstance is a fact that makes the offense ‘distinctively worse than the ordinary.’” (Black, supra, 41 Cal.4th at p. 817.) Thus, the issue is whether the facts here demonstrate such cruelty and viciousness that we can conclude defendant’s conduct went beyond that normally shown in crimes of this nature. Judge Stanford did not find any aggravating circumstances and therefore implicitly found defendant’s conduct did not exceed that of other defendants convicted of the same crime. The nature of this crime is repugnant and disgusting, but we cannot say beyond a reasonable doubt the jury would have found defendant’s conduct disclosed a high degree of cruelty beyond that normally shown in this offense.
Finally, defendant requests we remand the matter to Judge Stanford for resentencing, and complains the probation revocation court failed to consider mitigating factors found by Judge Stanford at the time he placed defendant on probation. We are in no position to make administrative decisions for superior court and therefore decline defendant’s request. We urge the superior court, however, to assign the matter to Judge Stanford if he is available to hear the matter.
The probation revocation court must consider mitigating circumstances that initially influenced the court’s decision to grant probation. (People v. Goldberg (1983) 148 Cal.App.3d 1160, 1163.)
The judgment is reversed and remanded for resentencing.
WE CONCUR: SILLS, P. J. BEDSWORTH, J.