Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CRF050659
HULL, J.Defendant Richard Lee Powell was found guilty by a jury of attempted murder (Pen. Code, §§ 187, 664), torture (Pen. Code, § 206), first degree robbery (Pen. Code, § 211), conspiracy to commit robbery (Pen. Code, § 182, subd. (a)(1)), assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), mayhem (Pen. Code, § 203) and furnishing a controlled substance (Health & Saf. Code, § 11379, subd. (a)), with enhancements for infliction of great bodily injury (Pen. Code, § 12022.7) and use of a deadly weapon (Pen. Code, § 12022, subd. (b)(1)). In addition, defendant pleaded guilty to second degree robbery (Pen. Code, § 211) and carjacking (Pen. Code, § 215, subd. (a)) before trial. Probation was denied and defendant was sentenced to state prison for an indeterminate term of eight years to life consecutive to a determinate term of 12 years 4 months.
On appeal, defendant contends he was denied a fair trial because evidence was admitted of the carjacking offense, to which he pleaded guilty before trial, and the jury was misinstructed on the use of other crimes evidence. Defendant also claims the trial court committed several sentencing errors. Although we reject defendant’s claims concerning his trial, two of his sentencing claims have merit: the life sentence imposed for carjacking should not have designated a minimum term and a term of one-third the midterm should have been imposed for an enhancement on a consecutive subordinate term. We modify defendant’s sentence accordingly.
Facts and Proceedings
On the date of the incident, the victim called defendant at approximately 3:00 a.m. after returning home from a trip to a casino and told him she had won $300. Defendant told the victim he was coming over.
Defendant arrived with another individual (the accomplice) who was unknown to the victim. The victim noticed that defendant “seemed very aggressive,” and she suspected he had used methamphetamine. The victim had used methamphetamine the previous night before going to the casino. The three talked for a few minutes, after which defendant smoked some methamphetamine and offered some to the victim, who declined.
After approximately 30 minutes, the conversation turned to a bicycle that defendant had left at the victim’s apartment. The victim previously told defendant she would return the bicycle when he paid her money he owed her. On the morning of the incident, defendant questioned the victim regarding how she would compensate him for the bicycle.
Defendant asked the victim where the money was that she won, and the victim said she had lost it all back to the casino. Defendant told the victim to take off her clothes to prove she did not have the money. The victim pulled her shirt up and pulled her pants down.
Defendant told the accomplice to go through the house and take what he wanted. Defendant gagged the victim, then joined the accomplice in going through the house. Defendant told the victim to show them where she kept her jewelry, and the victim went into her bedroom to show them. Defendant and the accomplice went through the victim’s drawers, putting things in their pockets, until the telephone rang. They then went into the front room, leaving the victim in the bedroom. Approximately five minutes later, the accomplice told the victim to come into the front room.
When the victim entered the front room, the accomplice was swinging a baseball bat. Defendant and the accomplice went into the kitchen and, when they returned, defendant said he wanted $15,000 and told the victim to call her parents. The victim refused.
The accomplice told the victim they were going to torture her but she would live. The accomplice also said to defendant that “he would help him bury [the victim’s] body, but that [defendant] was going to have to do whatever he was going to do to [her].” The accomplice made a hand motion across his neck as he said this.
Defendant stuffed cotton in the victim’s mouth and tied her wrists and ankles together with twine. As he did this, he told the victim “he knew from the first time he met [her] that he was going to do this to [her].” After defendant finished tying the victim, he began stabbing her with a knife that the accomplice had obtained from the kitchen. Defendant stabbed the victim on her neck and knee, and she sustained cuts on her fingers from grabbing the knife. Defendant also hit the victim on the head five to 10 times. At some point, the victim became able to scream, at which time defendant and the accomplice fled.
After leaving the victim’s apartment, defendant opened the passenger door of a car in which Lori S. was sitting as she waited for it to warm up. Defendant told Lori to get out, repeating the command. Another individual (presumably the accomplice) opened the driver’s door and, when Lori asked if she could get her purse, the individual hit her in the face and told her to “‘[g]et out of the f’ing car.’” The individual pulled Lori from the car, after which the car pulled out of the driveway. Later that morning, the car was found “smashed.”
Discussion
I
Evidence of the Carjacking
Defendant claims the trial court erred by admitting evidence of the carjacking that occurred after defendant and the accomplice left the victim’s residence. As this evidence was relevant regarding defendant’s consciousness of guilt, we disagree.
Before trial, the People made a motion to admit evidence of the carjacking even though defendant had pleaded guilty to this offense. The People asserted the evidence was relevant to corroborate the victim’s account of what had occurred and as evidence of flight to show defendant’s consciousness of guilt. Initially, the trial court conditioned the admissibility of the evidence on the defense attacking the victim’s credibility. However, after listening to the victim’s testimony, the court concluded that the evidence was probative on the issue of flight. The court found that the carjacking offense was not “more serious or odious” than the offenses being considered at trial and would not take a great amount of time to present. It concluded that the probative value of the evidence outweighed its prejudicial effect.
The trial court did not err.
“Evidence that a defendant committed crimes other than those for which he is on trial is admissible when it is logically, naturally, and by some reasonable inference relevant to prove some fact at issue, such as motive, intent, preparation or identity. [Citation.] The trial court judge has the discretion to admit such evidence after weighing the probative value against the prejudicial effect.” (People v. Daniels (1991) 52 Cal.3d 815, 856; see People v. Catlin (2001) 26 Cal.4th 81, 146.)
“[T]he flight of a person after the commission of a crime, while not of itself sufficient to establish guilt or to raise a presumption of guilt, is a circumstance to be considered by the jury in connection with all the other facts and circumstances in the case as tending in some degree to prove the consciousness of guilt, and evidence thereof is admissible, not as part of the res gestae, but as indicative of a guilty mind. It is permissible, in proof of the fact of flight, to show all of the facts and circumstances attending the flight either to increase or decrease, as the case may be, the probative force of the fact of flight. In other words, when testimony as to flight is resorted to, it is proper to show the extent of the flight and the circumstances thereof, including the acts and doings of the defendant, which tend to characterize and increase its significance.” (People v. Hall (1926) 199 Cal. 451, 460.)
Thus, in People v. Neely (1993) 6 Cal.4th 877, 896-897, the Supreme Court held that evidence of the defendant’s flight and efforts to avoid apprehension were highly probative of his consciousness of guilt with regard to a residential robbery and murder and, consequently, was admissible under Evidence Code section 1101, subdivision (b). Likewise, in People v. Perry (1972) 7 Cal.3d 756, 780 (disapproved on other grounds in People v. Green (1980) 27 Cal.3d 1, 28), the court held that evidence of a defendant’s desire and efforts to avoid apprehension “indicate[d] that he [wa]s motivated by fear of apprehension for a serious crime, one of more consequence than the nonsupport charge [the defendant] claim[ed] motivated his flight.”
Similarly, the evidence of the carjacking in the present matter was relevant to establish both defendant’s consciousness of guilt and that he viewed his offenses as sufficiently serious to became involved in another serious crime to effect his escape.
We disagree with defendant that the carjacking offense “cast no light” on whether he was guilty of the more serious charges. Defendant ignores that the manner in which he fled the scene had evidentiary value regarding his state of mind as to the seriousness of the conduct he had just been involved in. And even if we agreed with defendant that there was “unchallenged and unequivocal” evidence he was guilty of “some serious felony offenses involving the [victim],” defendant’s not guilty plea “put the elements of the crime[s] in issue for the purpose of deciding the admissibility of evidence under Evidence Code section 1101.” (People v. Daniels, supra, 52 Cal.3d at pp. 857-858, fn. omitted.) Defendant took no steps to “narrow the prosecutor’s burden of proof” on any of these charges (id. at p. 858), and the prosecutor could not be expected to anticipate what evidence would be “unchallenged and unequivocal” absent some advance indication by defendant.
When “a discretionary power is statutorily vested in the trial court, its exercise of that discretion ‘must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.’” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) Contrary to defendant’s claim, the evidence in question, here, was probative regarding defendant’s state of mind at the time of the offenses, and we divine no abuse of discretion in the trial court’s conclusion that the prejudicial impact of the evidence did not outweigh such probative value.
II
Instruction on Other Crimes Evidence
Defendant next complains that the trial court misinstructed the jury regarding the use of other crimes evidence. We conclude there is no substantial risk the jury was misled by the court’s instruction.
Without objection by defendant, the trial court instructed the jury with the prosecutor’s edited version of CALJIC No. 2.50, which addresses evidence of other crimes. We note that “[t]he appellate court may . . . review any instruction given, refused or modified, even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby.” (Pen. Code, § 1259.)
The challenged instruction read as follows: “Evidence has been introduced for the purpose of showing that the defendant committed crimes other than that for which he is on trial. Except as you will be otherwise instructed, this evidence, if believed, may not be considered by you to prove that the defendant is a person of bad character or that he has a disposition to commit crimes. It may be considered by you only for the limited purpose of determining if it tends to show a characteristic method, plan or scheme in the commission of criminal act [sic] similar to the method, plan or scheme used in the commission of the offense in this case which would further tend to show the existence of the intent which is a necessary element of the crime charged, the existence of the intent, which is a necessary element of the crime charged [sic], the identity of the person who committed the crime, if any, of which the defendant is accused, that the defendant had knowledge of the nature of the things found in his possession, the crime charged as [sic] part of a large continuing plan, scheme or conspiracy, the existence of a conspiracy, and for the limited purpose for which you may consider such evidence you must weigh it in the same manner as you do all other evidence in this case. You are not permitted to consider such evidence for any other purpose.”
Defendant complains that the instruction was erroneous because it did not identify the evidence to which it applied and because inapplicable bracketed portions of the instruction were not deleted. Defendant is correct that “‘[i]t is error to give an instruction which correctly states a principle of law which has no application to the facts of the case.’” (People v. Rollo (1977) 20 Cal.3d 109, 122-123, superseded by statute on another point as recognized in People v. Castro (1985) 38 Cal.3d 301.) However, “such an error is usually harmless, having little or no effect ‘other than to add to the bulk of the charge.’ [Citation.] There is ground for concern only when an abstract or irrelevant instruction creates a substantial risk of misleading the jury to the defendant’s prejudice.” (Rollo, supra, at p. 123.)
Defendant does not delineate which portions of the bracketed instruction he contends were inapplicable. Instead, he asserts vaguely that “the specific, detailed, and confusing instruction on other crimes evidence, in context, expressly permitted an improper inference of guilt.” We note that the prosecuting attorney clarified during closing argument that the carjacking offense was relevant to defendant’s consciousness of guilt and that defendant’s prior convictions for possession of methamphetamine were introduced to establish defendant’s knowledge that the substance he offered the victim was methamphetamine. Furthermore, the jury was instructed to disregard instructions that it determined did not apply to the facts. Defendant does not explain how the jury might have been misled by the instruction as it was given. He has failed to establish a substantial risk that the jury was misled by the instruction.
Defendant’s reliance on People v. Rollo, supra, 20 Cal.3d 109 is misplaced, as that case involved evidence of other crimes evidence (a burglary) and impeachment evidence (defendant’s prior conviction), the latter category of evidence not falling within the purview of an instruction under CALJIC No. 2.50. Thus, the appellate court in Rollo recognized that some jurors could have been misled to believe they could consider the impeachment evidence as evidence of other crimes. (Rollo, supra, at p. 123.) Here, however, both the carjacking and defendant’s previous convictions for possession of methamphetamine were introduced for purposes coming within the instruction contained in CALJIC No. 2.50.
As there is no substantial risk the jury was misled by the instruction in question, we reject defendant’s claim.
III
The Sentence for Torture
The trial court imposed a state prison term of seven years to life for defendant’s conviction for torture. Defendant argues this was error because section 206.1, which provides that torture is punishable by a term of life, does not set a minimum term. We agree.
The People argue that “[a] minimum term was needed in this particular case because [defendant] was also found to have used a deadly or dangerous weapon in committing torture,” which (they maintain) necessitated a base term on which to add the term for the enhancement. The People rely on People v. Jefferson (1999) 21 Cal.4th 86, 93, in which the Supreme Court held that, for purposes of doubling an indeterminate sentence under the second strike provision of the three strikes law, the seven-year minimum term for purposes of parole applied. (Pen. Code, § 3046, subd. (a)(1).) In selecting a minimum term, the court relied on express language in the three strikes law itself, which states “the determinate term or minimum term for an indeterminate term shall be twice the term otherwise provided as punishment for the current felony conviction.” (Pen. Code, § 667, subd. (e)(1), italics added.)
Unlike the three strikes law, which clearly contemplates the doubling of a minimum term on indeterminate sentences, no similar language applies to defendant’s circumstances. To the contrary, the trial court ordinarily is precluded from “fix[ing] the term or duration of the period of imprisonment” on an indeterminate term. (Pen. Code, § 1168, subd. (b).) “The term . . . and the date of its completion or parole date” are to “be determined by correctional authorities as provided by law.” (Cal. Rules of Court, rule 4.451.)
The People cite no authority precluding the imposition of a determinate term on an enhancement in conjunction with an indeterminate sentence, and we are aware of none. Accordingly, we conclude the trial court erred by setting defendant’s minimum term on his indeterminate sentence and shall modify the judgment accordingly.
IV
Imposition of the Upper Term
In supplemental briefing, defendant claims imposition of the upper term for carjacking in his matter violated his right to a jury trial and due process as set forth in Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely) and Cunningham v. California (2007) 549 U.S. __ [166 L.Ed.2d 856] (Cunningham).
The trial court identified five aggravating factors that supported the upper term: defendant’s prior convictions were numerous and of increasing seriousness; defendant was on felony probation when he committed the offense; the crime involved great violence and other acts disclosing a high degree of cruelty; the victim was particularly vulnerable; and defendant engaged in violent conduct evincing a serious danger to society. Defendant claims that, under Cunningham, it was improper for the trial court to consider any of these factors.
Initially, we reject the People’s argument that defendant has forfeited this claim because he did not raise it in the trial court. At the time of defendant’s sentencing on December 15, 2005, People v. Black (2005) 35 Cal.4th 1238 (Black I) had upheld the California sentencing scheme under Blakely, and certiorari had yet to be granted in Cunningham. (Cunningham v. California (Apr. 18, 2005, A103501) [nonpub. opn.], cert. granted Feb. 21, 2006, 546 U.S. 1169 [164 L.Ed.2d 47].) “Reviewing courts have traditionally excused parties for failing to raise an issue at trial 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.) As Black I was binding precedent at the time of defendant’s sentencing, any objection would have been futile.
Applying the Sixth and Fourteenth Amendments to the United States Constitution, the United States Supreme Court held in Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] 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.” (Id. at p. 490 [147 L.Ed.2d at p. 455], italics added.) For this purpose, the “statutory maximum” is the maximum sentence the trial court may impose based solely on the facts reflected in the jury verdict or admitted by the defendant. (Blakely, supra, 542 U.S. at p. 303 [159 L.Ed.2d at p. 413].)
In Cunningham, supra, 549 U.S. ___ [166 L.Ed.2d 856], the United States Supreme Court held that under Blakely and other decisions, California’s determinate sentencing law “violates a defendant’s right to trial by jury safeguarded by the Sixth and Fourteenth Amendments” to the extent the law allows a judge to impose an upper term sentence “based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant.” (Cunningham, supra, at p. ___ [166 L.Ed.2d at p. 864], overruling Black I, supra, 35 Cal.4th 1238 on this point, vacated in Black v. California (2007) ___ U.S. ___ [167 L.Ed.2d 36].)
On remand from the United States Supreme Court, for reconsideration in light of Cunningham, the California Supreme Court recently held that “imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as 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 II).) The “prior conviction” exception “include[s] not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions.” (Id. at p. 819.)
As noted earlier, the trial judge found that defendant had numerous prior convictions which were of increasing seriousness and that defendant was on probation when he committed the current offenses, facts which, according to Black II, the trial judge was able to determine without offending defendant’s constitutional rights. Those factual determinations find substantial support in the record and, thus, the upper term became the maximum statutory penalty for the offense of carjacking. There was no error.
V
The One Year Sentence Enhancement for Use of a Deadly Weapon
Finally, defendant contends, and the People concede, that the trial court erroneously imposed a full one-year sentence for the enhancement to the robbery conviction. We agree.
When imposing consecutive sentences for multiple offenses, “the aggregate term of imprisonment . . . shall be the sum of the principal term, the subordinate term, and any additional term imposed for applicable enhancements for prior convictions, prior prison terms, and [Penal Code] Section 12022.1.” (Pen. Code, § 1170.1, subd. (a).) “The subordinate term for each consecutive offense shall consist of one-third of the middle term of imprisonment . . . and shall include one-third of the term imposed for any specific enhancements applicable to those subordinate offenses.” (Ibid.)
Here, the trial court utilized defendant’s conviction for carjacking as the principal term and imposed a consecutive term for several other offenses, including the first degree robbery conviction. However, the court imposed a full one-year sentence for the enhancement to the robbery conviction for use of a deadly weapon (Pen. Code, § 12022, subd. (b)(1)) instead of one-third of that term. This was error.
Accordingly, we shall modify defendant’s sentence in accordance with Penal Code section 1170.1, subdivision (a).
Disposition
The judgment is modified to reflect an aggregate determinate sentence of 11 years 8 months and an indeterminate term of life plus one year in state prison. The trial court is directed to prepare an amended abstract of judgment reflecting these modifications and to forward a certified copy thereof to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
We concur: DAVIS, Acting P.J. ROBIE, J.