Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC583671
OPINION
RUSHING, P.J.
Statement of the Case
A jury found defendant Andrew Silva guilty of attempted premeditated murder, first degree burglary, and stalking and further found that defendant personally used a deadly weapon in the attempted murder and burglary. (Pen. Code, §§ 664, subd. (a), 187, 189, 459, 646.9, subd. (a), 12022, subd. (b)(1).) The court sentenced defendant to a life term with the possibility of parole for attempted murder with a consecutive one-year term for using a deadly weapon. The court also imposed a six-year aggravated term for burglary with a one-year term for using a deadly weapon but stayed both terms under Penal Code section 654. Last, the court imposed a consecutive eight-month term for stalking.
On appeal from the judgment, defendant claims the court erred in (1) instructing the jury on implied malice in connection with the attempted murder; (2) admitting evidence of prior, unrelated misconduct toward a third party; (3) failing to stay the sentence for stalking; and (4) imposing an aggravated term for burglary based on facts not found by the jury.
We agree with defendant’s last claim, reverse the judgment, and remand the matter for resentencing.
The Evidence
The Crimes
Defendant met the victim, Jessica, on the internet when both were students at different high schools. Later, defendant transferred to Jessica’s school, and they became friends, talking on the phone and “hanging out” together. In December 2004, defendant expressed his romantic interest to Jessica, but she rejected it, saying she already had a boyfriend and just wanted to be friends.
Later in December, Jessica and defendant were driving around together, and Jessica started playing with defendant’s hair. He got angry, stopped the car, grabbed her by the neck, pulled her out of the car, and told her to stop. Jessica initially testified that she thought nothing of the incident, but she later admitted that defendant hurt and frightened her because she thought he might hit her. After the incident, she distanced herself from him.
Two months later, on February 7, 2005, defendant left the following message on Jessica’s cell phone voice mail. “Uh, see, I’m trying to be real, I was trying to be real patient, and you know, I was giving you more chances, but you know what? Fuck it. You don’t wanna fuckin’ compromise, and you don’t wanna understand that I’m the only one that fuckin’, oh shit, I’m the fuckin’ one that, I, I wanna be your friend, and I want you to be my friend, and I want you to be cool with me, but fuck, you don’t want to, then fuck it . . . but you know, you’re just gonna have to deal with what I’m gonna do, and you know, I, I’m not gonna go talking, but you’ll see what I’m gonna do tomorrow, and you’ll fuckin’ see everybody in the school will see it. So, and don’t even try to pull no shit, ‘cause everybody heard what you said, and my family, about you trying to make up shit. So you, you, you ain’t gonna pull nothin’, you ain’t gonna pull nothin’, so that’s it. If you wanna contact me, you could, but you better fuckin’ hope to get me before I uh, before I do it, so—”
Jessica immediately felt threatened by the message and had no idea what he planned to do.
The next day, defendant posted approximately 50 fliers around their school that disparaged Jessica. The fliers had a picture of Jessica, a plus sign, pictures of beer, an equals sign, a picture of a pool table, and the words “fucked on pool table by 10 guys.” Defendant later admitted responsibility for the phone message and fliers. After that, Jessica and defendant stopped speaking to each other completely.
Less than a month later, on March 1, 2005, defendant told a classmate named Garrett that he was going to “kill” someone, and if caught, he would claim insanity. Later that same day, defendant drove to Jessica’s house dressed in dark clothing and wearing gloves. He knocked and then covered the peephole. When Jessica opened the door, defendant grabbed her by the throat, pushed her inside, and closed the door. He then pulled out a knife and pushed her to the floor. He said that she knew what she had done and that it was her turn to get what she deserved. Jessica called for help.
At trial, Garrett testified that defendant had said he wanted to “harm” someone. However, he admitted that his memory was better two days after defendant made his statement and that at that time, he told Sergeant Lemar Dunston of the San Jose Police Department, who is the community resource safety officer at defendant’s high school, about defendant’s comment and gave a written statement, in which he said that defendant threatened to kill someone. However, he testified that his statement exaggerated what defendant had said.
Jessica’s younger sister, Paige, who was upstairs, heard Jessica say that defendant had a knife. Paige rushed downstairs and saw defendant on top of Jessica, threatening her with a knife. Paige tried unsuccessfully to pull him off. Defendant said, “You don’t know what . . . she did to me.” He continued, “I’ve wanted to kill someone for a long time. . . . I’ve been wanting to do this for a long time. I don’t care if I go to jail.” Paige ran out to get help from a neighbor, Maria Ferrando.
Defendant is 6 feet 2 inches tall and weighs 300 pounds; Jessica weighs approximately 150 pounds.
When Ferrando and Paige returned, defendant still had Jessica pinned to the floor and was pointing his knife at her chest. Ferrando distracted him, and Jessica managed to get away momentarily, but defendant caught her and pinned her to the couch. He pointed the knife at her throat and chest and told her that she knew what she had done. As she struggled against him, he announced it was time for her to get what she deserved and said he would plead insanity.
Ferrando tried to persuade defendant to leave, but he said that he had to finish what he had come there to do and that “No matter what, she will die today. I’m not leaving until she’s dead.” He said he was not afraid of prison and would end up in a psychiatric ward like his mother and repeated that Jessica “has to die” and that he was going to do what he had come there to do.
During this time, Paige left to summon a neighbor, Marge Lichtenstein. Lichtenstein’s daughter called 911. Lichtenstein tried to calm defendant down. However, he repeatedly said he was going to kill Jessica because he had been thinking of killing someone for a long time. He said his mother was a “psych case,” his father had been in jail, and that is where he expected to go when he was finished with Jessica. Defendant told Jessica that he would stab her when the police arrived.
After a while, defendant heard police sirens and announced, “I don’t care if the police are here. I’m still going to do it.” He further said, “She’s still going to die.” He told Lichtenstein that Jessica was “going to be dead before they get here.” He then said to Jessica, “It’s going to happen” and stabbed her in the chest. When defendant raised his arm again, Ferrando grabbed his arm, Lichtenstein jumped on his back, and Jessica was able to escape. Police arrived and arrested defendant. At that time, defendant asked if he would “get 20 years for this.”
The parties stipulated that on March 1, Jessica went to the hospital “and was treated for complaints of minor stab wounds.” She “was diagnosed with have a one to three centimeter stab wound near her sternum that was approximately three quarters of an inch deep and closed with sutures. She also received a one-half inch laceration to her right arm that was approximately one quarter of an inch deep and sealed with Dermabond and a small laceration to her left middle finger.”
Evidence of Prior Misconduct
Over a defense objection, the prosecution introduced evidence of an alleged stalking incident involving another classmate, Lisa.
Lisa testified that she became friends with defendant. Sometimes they “hung out” after school, and a few times he came over to her house to visit or pick her up to go someplace. At one point defendant expressed his romantic interest to her. She felt uncomfortable because he previously had said he was gay. She told him that they were just friends but then distanced herself from him. Defendant seemed to accept that. However, at one point he told her that he wanted to tie her up, choke her, and make her watch him kill himself. She did not know if he was serious or joking but nevertheless felt scared and uncomfortable.
In late November 2004, defendant came over to Lisa’s house to go to the movies with her. However, she had him drop her off at a party to which he was not invited. Defendant then returned to her house. He told Lisa’s mother that he had stopped by just to say hello and reported that Lisa had locked herself in his room while he went out to get some videos. Concerned, Lisa’s mother told him to bring Lisa home. Defendant left but did not return.
Later that night, Lisa’s mother received a call from an anonymous man, who said that Lisa was “hanging out with bad people, older people, and they were making her do stuff that she doesn’t want to do.” When Lisa returned home that night and heard about the call, she said it was not true and, smiling, said she thought it was defendant or some other guys.
The next day, defendant called Lisa and asked if she had gotten into trouble. Lisa’s mother was listening to the call, and defendant admitted to Lisa that he and another person had made the call.
Lisa testified that on more than one occasion defendant would jokingly say that he wanted to kill someone so that he could go to prison for a long time. He said that if he were caught he would plead insanity. Lisa said that defendant was never physically violent toward her.
Instructional Error
Defendant contends that the court erred in instructing the jury on the concept of implied malice in connection with the attempted murder charge. He argues that prejudice from the error was exacerbated because the court gave a separate and different malice instruction in connection with the stalking charge.
Before any evidence was presented, the court gave CALJIC No. 8.66, stating that “[m]urder is the unlawful killing of a human being with malice aforethought. In order to prove the attempted murder, each of the following elements must be proved: One, a direct but ineffectual act was done by one person towards killing another human being; and two, the person committing the act harbored expressed [sic] malice aforethought; namely, a specific intent to kill unlawfully another human being.” (Italics added.) The court explained the difference between mere preparation and the commencement of a crime, stating that the former was not sufficient to constitute an attempt. The court continued, “However, acts of a person who intends to kill another person will constitute an attempt where those acts clearly indicate a certain unambiguous intent to kill.” (See CALJIC No. 8.66.)
Thereafter, the court gave CALJIC No. 8.11, stating that “[m]alice may be either express or implied. Malice is expressed when there is manifested an intention unlawfully to kill a human being. Malice is implied when, one, the attempted killing resulted from an intentional act; two, the natural consequences of the act are dangerous to human life; and three, the act was deliberately performed with knowledge of the danger to and with conscious disregard for human life.” [¶] When it is shown that an attempted killing resulted from an intentional doing of an act with express or implied malice, no other mental state need be shown to establish the mental state of malice aforethought.” (Italics added.)
Concerning the stalking charge, the court explained that the offense required a proof that “[o]ne, a person willfully, maliciously, and repeatedly followed or willfully and maliciously harassed another person; two, the person following or harassing made a credible threat; and three, the person who made the threat did so with the specific intent to place the other person in reasonable fear for her safety or the safety of the immediate family of such person.” The court then defined numerous other terms that were used in the stalking instructions, including “malice” and “maliciously,” which the court said “mean a wish to vex, defraud, annoy, or injury another person or an intent to do a wrongful act.”
Later, during its final instructions, the court reiterated these instructions.
In People v. Lee (1978) 43 Cal.3d 666 (Lee), the defendant was charged with attempted murder, and, as here, the court instructed on both express and implied malice. The Supreme Court held that “a specific intent to kill is a requisite element of attempted murder, and that mere implied malice is an insufficient basis on which to sustain such a charge. Accordingly, implied malice instructions should never be given in relation to an attempted murder charge. [Citations.]” (Id. at p. 670, italics added, citing People v. Santascoy (1984) 153 Cal.App.3d 909, 919 [“Any instruction defining attempt to commit murder which specifically affords the jury the opportunity to convict on the basis of implied malice is just plain wrong”].)
Given Lee, we agree with defendant that it was error to instruct on implied malice.
In Lee, court explained that the conflicting malice instructions represented federal constitutional error that was reviewable under the “ ‘harmless beyond a reasonable doubt’ ” standard set forth in Chapman v. California (1967) 386 U.S. 18, 21 (Chapman). (Lee, supra, 43 Cal.3d at pp. 669, 674-676.) Applying that standard, the court found the instructional error to be harmless. (Id. at pp. 677-679.) The court found that the evidence of express malice was “quite strong.” (Id. at p. 677.) It noted that the parties’ closing arguments focused on the question of specific intent and the need for such a finding. And, despite the erroneous instruction, the court had properly told jurors three or four times that to convict defendant of attempted murder the prosecution had to prove that the defendant harbored the specific intent to kill. The court concluded that from both the way the instructions were given and the focus of closing arguments, the jury “most likely understood” that it was required to find both specific intent and malice. (Id. at p. 677.)
Here too there was overwhelming and uncontradicted evidence that defendant not only harbored the specific intent to kill but also acted with premeditation and deliberation. He was angry at Jessica for rejecting him. He had previously told Lisa that he wanted to kill someone; and just hours before the assault, he told Garrett that he was going to kill, or at least harm, someone, and if caught he would plead insanity. He brought a knife with him to Jessica’s house. When she opened the door, he assaulted her and drew his knife. He then held her immobilized at knife-point for an extended period of time, complained about what she had done, announced several times that he intended to kill her, and then stabbed her as the police arrived.
Next, the court twice instructed jurors that to convict defendant, they had to find that he acted with the specific intent to kill and that his conduct could constitute an attempt only if his conduct indicated an unambiguous intent to kill. The court also instructed the jury that there must exist a union of “act or conduct and a certain specific intent in the mind of the perpetrator. Unless this specific intent exists, the crime to which it relates is not committed.” (Italics added.)
Next we note that in instructing the jury on premeditation and deliberation, the court twice explained, “If you find the defendant guilty of attempted murder, you must determine whether this allegation is true or not true. [¶] ‘Willful’ means intentional. ‘Deliberate’ means formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed source of action. ‘Premeditated’ means considered beforehand. [¶] If you find that the attempted murder was preceded and accompanied by a clear, deliberate intent to kill which was the result of deliberation and premeditation so that it must have been formed upon preexisting reflection and not under a sudden heat of passion or other condition precluding the idea of deliberation, it is an attempt to commit willful, deliberate, and premeditated murder.” (Italics added; see CALJIC No. 8.67.) The court continued, “To constitute willful, deliberate and premeditated attempted murder, the would-be slayer must weigh and consider the question of killing and the reasons for and against such a choice, and, having in mind the consequences, decides to kill and makes a direct but ineffectual act to kill another human being.” (Italics added; see CALJIC No. 8.67.)
During their final arguments, both the prosecutor and defense counsel focused on the issue of express malice and specific intent. During the prosecutor’s opening argument, she reiterated that attempted murder requires a finding that defendant “harbored expressed [sic] malice aforethought; that means a specific intent to kill Jessica.” (Italics added.)
The prosecutor never mentioned the term “implied malice.” However, as defendant points out, the prosecutor did reiterate language in the implied malice instruction. In particular, after stating that the charge required a specific intent to kill, she said that “[a]n expressed [sic] malice aforethought is defined as, first, the attempted killing resulted from an intentional act. That means it wasn’t an accident . . . . He intentionally stabbed his knife down toward her. Second, that the natural consequence of the act is dangerous to human life. Stabbing at a person with a knife is clearly dangerous to human life, and you have in evidence the knife the defendant used, so you can judge, when looking at this weapon, if this is something that’s stabbed at a human being, is that something that the consequences of which are dangerous to human life, and of course they are. [¶] That the act was deliberately performed with the knowledge of the danger to and with the conscious disregard for human life, and what that means is, again, he did this on purpose. He made the stabbing motion towards Jessica with this knife on purpose. He knew it was dangerous. He had been saying all along, ‘I came here to kill her,’ and clearly that shows a disregard for human life, so what he was aware of is very clear form his statements as you heard from Paige and from Maria Ferrando and Marge Lichtenstein.”
Thereafter, however, the prosecutor reiterated the court’s instruction that an attempted murder required more than mere preparations, stating that if there was “clear intent as to what the person was thinking, that the person intended to kill, and that this is clear but the act, his attempt to kill, was interrupted due to something that’s beyond his control, something he hadn’t anticipated, then we’ve gone beyond mere preparation.”
We do not find that the prosecutor’s use of language from the implied malice instruction urged the jury to base a verdict on implied malice. In applying the instructions, the prosecutor argued that defendant clearly came to Jessica’s house with the intent to kill her; and, but for the intervention of third parties, he would have done so. Indeed, moving on to the issue of premeditation and deliberation, the prosecutor reiterated that the special allegation required a finding that defendant “had a clear, deliberate intent to kill which was the result of deliberation and premeditation . . . .” She noted that “[d]eliberat[ion] means that [his] intent was formed and arrived or determined as a result of careful thought and weighing of considerations for and against the proposed action.” The prosecutor argued that defendant’s statements and conduct both before the attack to Garrett and during the attack to Jessica, Paige, Ferrando, and Lichtenstein showed that he had considered killing Jessica and had carefully thought about and weighed doing so before stabbing her.
Defense counsel did not react to the prosecutor’s use of language from the implied malice instructions. Nor did he mention the subject of implied malice. Instead, he focused on express malice and argued that to convict defendant, the jury had to find that defendant “had the specific intent to commit murder, basically that, I think, is going to be the crucial part of the case. What that instruction says is that the specific intent or mental state with which an act is done may be shown by the circumstances surrounding the commission of the act. However, you may not find the defendant guilty of a crime charged unless the proved circumstances are not only, one, consistent with the theory that the defendant had the required specific intent or mental state; but two, cannot be reconciled with any other rational conclusion.”
Counsel argued that if defendant had planned and specifically intended to kill Jessica, he had plenty of time to do so. Counsel further noted that defendant’s size would have made it easy for him to kill her, but he inflicted only a minor stab wound. Moreover, he stabbed her only once and then allowed himself to be pulled from Jessica by Ferrando, Lichtenstein, and Paige. Counsel asserted that defendant did not intend to kill Jessica; rather, he was simply confused and needed attention.
In her closing argument, the prosecutor again asserted that the only reasonable interpretation of the evidence was that defendant went to Jessica’s house with the specific intent to kill her.
Next, we observe that the jury accepted the prosecutor’s theory and found that defendant committed attempted premeditated murder. As noted, the instruction on the premeditation special allegation required an initial finding that “the attempted murder was preceded and accompanied by a clear and deliberate intent to kill . . . ” Thus, the jury’s finding of premeditation is predicated on a finding that he harbored an intent to kill.
For this reason, we reject defendant’s claim that the jury could have first found him guilty of attempted murder based on implied malice and then found the special allegation true based on a finding that only the act of stabbing and not the intent to kill was premeditated.
Last, we do not find that the definition of “malice” and “maliciously” given in connection with the stalking charge had any tendency to affect the jury’s consideration of the attempted murder charge because those instructions were clearly related only to the stalking charge. Indeed, defendant does not claim error concerning those instructions, and defense counsel apparently did not consider it confusing because he did not ask for further clarification. Moreover, if there were any possible confusion, it would have been dispelled by the prosecutor, who reiterated the definition of “malicious” and emphasized that “[i]t’s not the same [as] malice aforethought definition; it’s different, and it is in your instructions.”
In sum, given the overwhelming evidence of express malice, the court’s correct instructions that attempted murder requires a finding of express malice, the primary focus of closing arguments on whether defendant harbored specific intent, and the lack of reference to the term “implied malice,” we find no reasonable likelihood that the jurors relied on an implied malice theory in finding defendant guilty. Rather, given the jury’s finding of specific intent implicit in its determination of premeditation, we conclude that the jury necessarily relied on a theory of express malice and found a specific intent to kill. Accordingly, we further conclude that the instructions on implied malice were harmless beyond a reasonable doubt. (See Chapman, supra, 386 U.S. at p. 21; cf. Lee, supra, 43 Cal.3d at pp. 677-679; People v. Carpenter (1997) 15 Cal.4th 312, 391; People v. Avena (1996) 13 Cal.4th 394, 417-418.)
Quoting Lara v. Ryan (9th Cir. 2006) 455 F.3d 1080 and citing other federal appellate court cases, defendant argues that giving implied malice instructions constituted “structural error” that compels reversal “unless we can determine with ‘absolute certainty’ that the jury convicted under the proper theory.” (Id. at p. 1087.) Defendant suggests that the California Supreme Court has also adopted a more stringent standard, under which reversal is required unless it is possible to determine from other portions of the verdict that the jury necessary based its verdict on a proper legal theory. (E.g., People v. Perez (2005) 35 Cal.4th 1219, 1233; People v. Guiton (1993) 4 Cal.4th 1116, 1130.)
In this section, all unspecified statutory references are to the Evidence Code.
Defendant contends that the court committed reversible error in admitting the evidence of his unrelated conduct toward Lisa. He argues that the evidence was not admissible under section 1101, subdivision (b) to prove a disputed material issue.
Section 1101provides: “(a) Except as provided in this section and in Sections 1102, 1103, 1108, 1109, evidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion. [¶] (b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act. [¶] (c) Nothing in this section affects the admissibility of evidence offered to support or attack the credibility of a witness.”
Evidence of misconduct other than current charges is not admissible to prove that the defendant has a bad character or criminal disposition. (§ 1101, subd. (a).) However, such evidence is admissible to prove a disputed, material fact—such as motive, opportunity, intent, preparation, common plan or scheme, knowledge, identity, absence of mistake or accident. (§ 1101, subdivision (b); People v. Ewoldt (1994) 7 Cal.4th 380, 402-403 (Ewoldt).) To be admissible, however, the uncharged misconduct must be sufficiently similar to the current charges to support a rational inference concerning such a material fact. (Ibid.) “The strength of the inference in any case depends upon two factors: (1) the degree of distinctiveness of individual shared marks, and (2) the number of minimally distinctive shared marks.” (People v. Thornton (1974) 11 Cal.3d 738, 756, italics omitted, disapproved on other grounds in People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12.)
The degree of similarity needed to show relevance varies depending upon the type of fact the uncharged misconduct is offered to prove. (Ewoldt, supra, 7 Cal.4th at pp. 402-403.) “The greatest degree of similarity is required for evidence of uncharged misconduct to be relevant to prove identity. For identity to be established, the uncharged misconduct and the charged offense must share common features that are sufficiently distinctive so as to support the inference that the same person committed both acts. [Citation.] ‘The pattern and characteristics of the crimes must be so unusual and distinctive as to be like a signature.’ [Citation.]” (Id. at p. 403.)
“A lesser degree of similarity is required to establish relevance on the issue of common design or plan. [Citation.] For this purpose, ‘common features must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual.’ [Citation.]” (People v. Kipp (1998) 18 Cal.4th 349, 371, quoting Ewoldt, supra, 7 Cal.4th at p. 403.) And “[t]he least degree of similarity is required to establish relevance on the issue of intent. [Citations.] For this purpose, the uncharged crimes need only be ‘sufficiently similar [to the charged offenses] to support the inference that the defendant “ ‘probably harbor[ed] the same intent in each instance.’ [Citations.]” ’ ” (People v. Kipp, supra, 18 Cal.4th at p. 371, quoting Ewoldt, supra, 7 Cal.4th at p. 402.)
On appeal, the trial court’s determination of admissibility under section 1101, being essentially a determination of relevance, is reviewed for abuse of discretion. (People v. Gray (2005) 37 Cal.4th 168, 202; People v. Kipp, supra, 18 Cal.4th at p. 369.)
In finding the evidence admissible, the trial court found that the similarity in defendant’s relationships with Jessica and Lisa, his conduct toward them, and his reaction to them indicated that he intended to instill fear in both. The court also found that the similarity reflected a common scheme or plan to seek retribution against those who spurn his romantic advances.
After Lisa and her mother testified, the court instructed the jury that “the testimony of Lisa and [her mother] 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 and 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 acts similar to the method, plan, or scheme used in the commission of the offenses in this case which would further tend to show the existence of intent, which is a necessary element of the crimes charged, or that the defendant had knowledge or possessed the means that might have been useful or necessary for the commission of the crimes charged. [¶] . . . [¶] For the limited purpose for which you may consider such evidence, you must weigh it in the same manner as you weigh all other evidence in the case. You are not permitted to consider such evidence for any other purpose.”
Defendant claims that there were insufficient meaningful similarities between his conduct toward Lisa and Jessica to show either a common plan or intent. We disagree.
Both Lisa and Jessica were defendant’s classmates, and he befriended both, socialized with them, and went to their homes. He expressed his romantic interest to each, and both rejected it and later sought to distance themselves from him. In response to being rejected, defendant retaliated, acting in a way that was harassing, frightening, and/or intimidating.
Concerning Lisa, he said he wanted to tie her up, choke her, and make her witness his suicide. Later, he made a frightening call to Lisa’s mother in an attempt to scare her and get Lisa into trouble. He then disparaged Lisa by saying she was “hanging out with bad people,” who were “making her do stuff that she doesn’t want to do.”
Concerning Jessica, he first left a frightening and threatening message on her answering machine. He then disparaged her reputation by posting degrading fliers around school. Later, he attacked her with a knife.
Defendant notes the differences in his actions toward both girls and cites cases where there was greater similarity between the charged and uncharged conduct than there is here. However, those cases do not set the minimum standard for determining similarity. Moreover, we agree with the trial court that given its context, purpose, and effect, defendant’s conduct toward both girls was sufficiently similar to imply a common method of dealing with romantic rejection rather than a series of spontaneous, unrelated actions toward each.
Furthermore, to prove the stalking, the prosecution had to prove that defendant intended to place Jessica in fear for her safety or that of her family. (Pen. Code, § 646.9, subd. (a).) Even less similarity is needed to render uncharged misconduct admissible to prove intent than to prove a common plan. It follows, therefore, that defendant’s conduct was sufficiently similar to show that he acted with the same intent: to instill fear.
Penal Code section 646.9 provides in relevant part: “(a) Any person who willfully, maliciously, and repeatedly follows or willfully and maliciously harasses another person and who makes a credible threat with the intent to place that person in reasonable fear for his or her safety, or the safety of his or her immediate family is guilty of the crime of stalking . . . .”
Defendant’s threat to tie Lisa up, choke her, and make her watch him commit suicide reasonably reflects an intent to cause Lisa to fear for her own safety. Indeed, Lisa testified that his comment scared her and made her feel uncomfortable. Similarly, after Jessica spurned defendant, he choked her in a car when she toyed with his hair. Later, in his telephone message, he made threatening statements, warning that if she did not call him, “you’ll see what I am going to do tomorrow . . . .” Then, on the day of the attack, he grabbed her by the neck and threatened her because of what she had done to him. Again, given the basic similarity in context and conduct, the court reasonably could have found that his conduct toward Lisa tended to show that not only did he act according to a common method but also he probably harbored the same intent in both instances.
During her closing argument, the prosecutor argued that the jury could also consider the evidence to show defendant’s motive. However, defendant claims that his conduct toward Lisa was not relevant or admissible for that purpose.
The court did not admit the evidence to show motive and did not instruct the jury that it could be considered for that purpose. Moreover, any claim that the prosecutor’s comment was misconduct fails because defendant failed to object. (People v. Kennedy (2005) 36 Cal.4th 595, 629 [failure to object and seek a curative admonition forfeits claim of prosecutorial misconduct]; People v. Lenart (2004) 32 Cal.4th 1107, 1129; e.g., People v. Sapp (2003) 31 Cal.4th 240, 278.)
In any event, we reject defendant’s claim. Where the charged and uncharged conduct is sufficiently similar to show both a common plan and intent, it is likely also to be similar enough to show that the intent arose from the same motivation. Moreover, “the probativeness of other-crimes evidence on the issue of motive does not necessarily depend on similarities between the charged and uncharged crimes, so long as the offenses have a direct logical nexus. [Citations.]” (People v. Demetrulias (2006) 39 Cal.4th 1, 15.)
In People v. Pertsoni (1985) 172 Cal.App.3d 369, the defendant, charged with the shooting murder of a man who was thought to be an agent for the Yugoslav secret police, claimed that he had acted in self-defense. Evidence was admitted of an uncharged prior violent act: the defendant’s having shot at a man he believed to be the Yugoslav Ambassador. (Id. at pp. 372-373.) There were dissimilarities between the two acts. Nevertheless the evidence was admissible to show the defendant’s motive of “passionate hatred towards anyone connected with the Yugoslav government . . . .” (Id. at p. 374.) This motive was in turn relevant to show the defendant acted “to kill an agent of the detested government, rather than to protect himself against a perceived danger.” (Id. at p. 375.)
The record here reveals a direct logical nexus between defendant’s harassment of Lisa and his harassment of and attack on Jessica: a similar aggressive reaction and desire to retaliate against two girls who had spurned his romantic advances. This motive, in turn, is further evidence that defendant acted against Jessica with the requisite intent to instill fear.
Defendant claims that even if the evidence was relevant and admissible to prove that he stalked Jessica, the court nevertheless abused its discretion in finding that it was more probative than prejudicial. (See § 352.)
Under section 352, the court may exclude relevant evidence “if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”
“The prejudice which exclusion of evidence under Evidence Code Section is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. ‘[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendant’s case. The stronger the evidence, the more it is “prejudicial.” The “prejudice” referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, “prejudicial” is not synonymous with “damaging.” ’ [Citation.]” (People v. Karis (1988) 46 Cal.3d 612, 638; accord, People v. Padilla (1995) 11 Cal.4th 891, 925, overruled on another point in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.)
In People v. Falsetta (1999) 21 Cal.4th 903, the court explained that in weighing probative value against prejudicial effect, the court “must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant’s other . . . offenses, or excluding irrelevant though inflammatory details surrounding the offense.” (Id. at p. 917.)
We review a trial court’s ruling under section 352 for abuse of discretion. (People v. Harrison (2005) 35 Cal.4th 208, 230.)
Here, the court properly determined that the evidence was admissible to prove stalking because it was relevant to show intent and a common plan. Moreover, the court reasonably could have concluded that its probative value was not substantially outweighed by potential prejudice.
The conduct toward Lisa was not remote, and presenting the evidence did not consume an undue amount of time. The evidence was straightforward; it was not complex or difficult to understand; and it was uncontradicted. Thus, the court reasonably could have found that it would neither confuse nor mislead the jury. Furthermore, defendant’s conduct toward Lisa was far less inflammatory than his conduct toward Jessica. Thus, the court could have concluded that the evidence would not have an unfair impact on the jury. This is especially so because the court intended to give an instruction limiting how the jury could consider the evidence.
Contrary to defendant’s claim, the evidence did not constitute a “significant portion” of the prosecution’s case in chief. The evidence involved the testimony of two witnesses, comprising a total of 34 pages of transcript. Concerning the charged offenses, there were 11 witnesses, whose testimony comprised over 180 pages of testimony.
Defendant argues that that any probative value that the evidence had was outweighed by its potential unfair impact on the jury’s consideration of the attempted murder charge. He argues that the evidence could have influenced the jury in “painting [him] as having problematic and potentially dangerous relationships with all high school girls” and showing him as having “deep hostility and potential for violence toward high school girls who rejected his friendship and/or romantic advances.” In essence, however, this claim is that the jury might have used evidence to find that defendant had a bad character vis-à-vis high school girls and a disposition toward violence when his romantic interests are rejected. However, the court could have presumed that jurors could and would follow instructional warning against considering the evidence for such purposes. (People v. Waidla (2000) 22 Cal.4th 690, 725.)
Defendant notes, however, that the court’s limiting instruction did not restrict consideration of the evidence to the stalking charge. Thus, he argues that the court’s instruction “inadvertently encouraged” the jury to consider the evidence for improper purposes in connection with the attempted murder charge.
Such alleged collateral prejudice does not suggest that the court abused its discretion in admitting the evidence to prove stalking. Defendant’s claim would be relevant in determining prejudice only if we found error in admitting the evidence to prove stalking.
Moreover, the alleged prejudice—i.e., that the jury may have erroneously considered the evidence for improper purposes in connection with the attempted murder charge—would have been the result of an allegedly inadequate limiting instruction, which did not restrict consideration of the evidence to the stalking charge. However, defendant does not directly claim the court erred in giving an inadequate limiting instruction. Nor could he, because absent a request, the court had no sua sponte duty to give any limiting instruction (People v. Coffman (2004) 34 Cal.4th 1, 83), and the court’s instruction was legally correct as far as it went. Defendant did not object or request a clarification or modification of the instruction. Nor did counsel object or request an instruction when the prosecutor discussed the evidence during opening argument. Under the circumstances, therefore, defendant forfeited any claim of prejudice arising from the allegedly inadequate limiting instruction. (People v. Padilla, supra, 11 Cal.4th at p. 950, overruled on other grounds in People v. Hill, supra, 17 Cal.4th at p. 823, fn. 1; see § 355 [absent request, court has no duty to give limiting instruction]; cf. People v. Richards (1976) 17 Cal.3d 614, 618-619, disapproved on other grounds in People v. Carbajal (1995) 10 Cal.4th 1114, 1126.)
In any event, defendant’s claim of collateral prejudice is unpersuasive. First, in discussing defendant’s conduct toward Lisa, the prosecutor focused on the stalking charge, and nothing he said suggested that the evidence was relevant to prove the attempted murder charge. Second, as noted, the court expressly prohibited jurors from considering defendant’s conduct toward Lisa as evidence of a bad character or criminal disposition. And third, there was overwhelming, uncontradicted evidence of guilt concerning the attempted premeditated murder. Under the circumstances, we find it highly unlikely that the admission of evidence together with the court’s limiting instruction was prejudicial concerning the attempted murder charge.
Failure to Stay the Punishment for Stalking
Defendant contends the court erred in failing to stay his eight-month consecutive term for stalking. He notes that to prove the charge, the prosecutor presented evidence of defendant’s conduct on three or four separate occasions, including March 1, the day of the attempted murder. Focusing on excerpts of the prosecutor’s argument, defendant asserts that she “singled out the March 1 incident as a sufficient basis for a guilty verdict for stalking” and told the jury that it could find him guilty based solely on that incident.
Defendant next asserts that the court instructed the jury “that it could base [its verdict] on any one of the three incidents.” Defendant next argues that because the record does not disclose which act or acts the jury based its verdict on, the trial court should have presumed that the verdict was based solely on the March 1 incident. Thus, defendant claims that the stalking and attempted murder convictions were based on the same incident and were part of a single, continuous, course of criminal conduct with the same intent and objective. As such, Penal Code section 654 would bar separate punishment for both offenses.
Penal Code section 654, subdivision (a) (hereafter section 654) provides, “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other.”
First, we disagree with defendant’s reading of the prosecutor’s argument. The prosecutor began by discussing the elements of stalking. “The first element is that the defendant willfully and maliciously harassed Jessica . . . . [¶] Harass. That requires that the defendant engaged in a knowing and willful—again, remember, willful just means intentional; it wasn’t an accident—course of conduct directed at Jessica that seriously alarmed, annoyed, tormented, or terrorized her and that served no legitimate purpose. [¶] The stalking charge applies to the incidents that occurred starting in December with the incident in the car and concluding on March 1st with the incident in her home. It requires a course—the course of conduct is that there just be two or more acts, so more than one. So again, we have these three separate acts, or four if you want to count the cell phone call and the flier separate from each other, but we have the incident in December, we have the call made to the cell phone, the fliers at school the next day, and then the attempted murder on March 1st, and it just has to show a continuity of purpose; basically, the defendant in this case was intending to do all of these things: Alarm, annoy, torment, and terrorize Jessica with all of these actions. [¶] The evidence of harassment in this case and that there was a course of conduct. We have the incident in December. Again, we’ve talked about that. The defendant pulls Jessica out by her neck. She told you that hurt. She told you she was fearful when he did that, and he very angrily yells at her about having run her fingers through his hair. [¶] There’s the call on Jessica’s cell phone on February 7th, and that was a harassing phone call. [¶] That call on Jessica’s cell phone comes the day before she goes to school and hears from the assistant principal—associate principal, Greg Louie, that there are fliers posted around the school. You heard Kevin Young, who was the custodian who found the fliers, testify about those. This is a copy of one of those fliers. Again this is something that is intended to harass, to upset Jessica. The nature of this flier, a reasonable person—and again, use your common sense how someone who’s the subject of this flier would feel having this flier posted all over her school, and he stated in that phone call, ‘You’ll see tomorrow what I do at school. Everyone will see.’ The attack at Jessica’s home is also part of this course of conduct. [¶] That is the first element; that it was willful and malicious harassment of Jessica. The second element is that the defendant made a credible threat, and a credible threat is either verbal or written. It can be some combination or both. It can also be a pattern of conduct; something the defendant does physically. For example, the car incident in December when he’s grabbing her out of the car by her throat. That’s a physical action. Cell phone message is a verbal threat. The fliers left at school are again sort of a written threat. A course of conduct. [¶] And then the incidents at the home are both a course of conduct, and then the verbal threats he was making they have to be made with the intent to place Jessica in reasonable fear for her safety, and clearly, from the defendant’s actions, that’s what he was doing. There’s no other reasonable explanation for what his intent could have been with regard to those actions. They have to be made with the apparent ability to carry out the threat so as to cause Jessica reasonable fear for her safety. [¶] Again, the incident of December when he’s grabbing her by the throat and pulling her out, clearly, that’s indicating some ability to harm her. When he makes this cell phone call to her and then she shows up at school the next day and finds these fliers posted all over the place, we have an ability for him to carry out his threat, his harassment. Then the incidents on March 1st, clearly, he actually does stab her, so he shows that he has the ability at least to attempt to carry out his actions if he hadn’t been stopped by the neighbors. [¶] But he doesn’t have to actually intend to carry these actions out. It doesn’t have to be his intent. It just has to be that it is apparent to her that he could have the ability to carry them out if he wanted to. Clearly, from all those actions, not only is it apparent that he had the ability, but at least the incident with the fliers at school and the incident at her home, he had that intent as well. [¶] Evidence that we have of a credible threat. Again the incident in December, the incident in February with the fliers. Jessica said that the call and the fliers themselves made her feel threatened, made her feel frightened. The March 1st threats to kill and stab Jessica, the knife that the defendant was carrying, which is his physical action of a threat, scared Jessica.” (Italics added.)
The prosecutor then turned to the element of intent. “The final element of stalking is that the defendant made a threat with the specific intent to place Jessica in reasonable fear for her safety; and again the evidence really supports that. To show that he intended this, we have obviously, the March 1st incident is just clear. [Sic.] When he’s saying, ‘I’m going to kill her. I came here to kill her. She’s going to die,’ all those statements, there is no other implication in those statements for the March 1st incident. The fact that he had that knife, no other explanation. [Sic.] The February 7th and February 8th incidents with the fliers.”
Concerning intent, the prosecutor also noted the February and December incidents. “The nature of the call itself to Jessica, it’s angry, it’s hostile, he cursing. You can tell he’s very upset, and he’s claiming that something’s going to happen at school the next day. The nature of that call, by itself, indicates that he intended Jessica to be in some sort of fear for her safety. [¶] The fliers. Again, meant to annoy or upset Jessica. These are also a hostile act. The December incident in the car, the defendant was physically violent, he was yelling at Jessica, he was hostile towards her. All three of these incidents indicate that he intended to make Jessica fear for her safety. [¶] Now, again, just because we’ve taken a long time to get through this, I’m going to quickly summarize stalking elements. First, we have to show that on more than one occasion, the defendant engaged in conduct that he knew and wished would seriously alarm, annoy, torment, or terrorize Jessica, and we have these three incidents that occur: That he made threats intending to place Jessica in fear for her safety and seemed able to carry these threats out, and that he did it with the specific intent to place Jessica in reasonable fear for her safety. [¶] When you evaluate all the evidence in this case and when you apply it to the law, you will find beyond a reasonable doubt that the defendant is guilty of all three of the charges and of all of the allegations in this case. (Italics added.)
When the prosecutor’s argument is viewed as a whole, it is clear that her theory of stalking was that defendant’s conduct on the three occasions taken together established the elements of the offense: a continuing course of harassing conduct, credible threats, and an intent to make Jessica fear for her safety. The prosecutor did discuss each incident separately. But contrary to defendant’s claim, we do not find that she singled out the March 1 incident as a sufficient basis standing alone to support a conviction. Defendant’s reading of the argument is strained and unduly focuses on only the prosecutor’s comments about that incident. Indeed, if the prosecutor had wanted to argue that the March 1 incident was enough by itself, one would have expected her to say so simply and clearly and thereby make the jury’s determination that much easier. Instead, however, the prosecutor said that she had to show that defendant engaged in harassment “on more than one occasion” and argued that the March 1 incident was just “part” of a continuous course of harassment.
Concerning the instructions, we note that the court explained, among other things, that “[e]very person who willfully, maliciously . . . harasses another person and who makes a credible threat with the intent to place that person in reasonable fear for his or her safety . . . is guilty of [stalking].” The court defined “harass” to mean engaging “in a knowing and willful course of conduct directed as a specific person that seriously alarms, annoys, torments, or terrorizes the person and that serves no legitimate [purpose].” The court defined “course of conduct” to mean “two or more acts occurring over a period of time, however short, evidencing a continuity of purpose.”
The court concluded by stating that defendant is accused having committed the crime of stalking “on or about a period of time between one date and another.” For defendant to be found guilty, “it is necessary for the prosecution to prove beyond a reasonable doubt that the commission of a specific act or acts constituting those crimes [sic] occurred within the period alleged, and in order to find the defendant guilty, you must unanimously agree upon the commission of the same specific act or acts constituting the crime within the period alleged. It is not necessary that the particular act or acts committed so agreed upon be stated in the verdict.” (See CALJIC No. 4.71.5.) (Italics added.)
Defendant notes that the court “did not require the jury to find true all three incidents, but rather only to find ‘beyond a reasonable doubt that the commission of a specific act or acts’ constituted stalking.” (Defendant’s italics.) Thus, he argues that the court’s instructions “permitted the jury to [convict him] based on just one of the incidents (e.g., just the March 1 incident).”
It is true that the instructions did not preclude jurors from convicting defendant based solely on the March 1 incident. And, as a purely theoretical observation, the jury could have done so because his conduct on March 1 involved more than one act against Jessica. However, in determining the existence of prejudicial error, we are concerned with realistic and reasonable possibilities under the circumstances and not abstract, theoretical possibilities. Here, the evidence concerning all three incidents was uncontradicted, and defense counsel did not deny any of them. All the incidents took place after Jessica had spurned defendant’s romantic interest in her. Each incident unquestionably involved a knowing and willful act that alarmed, annoyed, or frightened Jessica for no legitimate purpose. Moreover, the intensity of defendant’s conduct steadily increased over this period of time, progressing from grabbing her by the neck and pulling her from a car; to leaving a bitter and threatening phone message and posting derogatory fliers around school; to assaulting her with a knife, terrorizing her in her home, and then stabbing her.
Furthermore, the court instructed the jury that a course of conduct means “two or more acts over a period of time, however short, evidencing a continuity of purpose.” Defendant was charged with stalking Jessica during a period of time that began with the first incident and ended with the last. And the uncontradicted evidence of the three incidents, taken together, constituted far more obvious, logical, and overwhelming evidence of a course of harassment during that precise period of time than defendant’s conduct during the final incident. And again, contrary to defendant’s claim, the prosecutor did not argue that the jury could, or suggest that it should, base it verdict on a single incident.
Under the circumstances, there was no rational basis for the jury to have distinguished the evidence of the March 1 incident from the equally credible and compelling evidence of his prior conduct and rejected the earlier conduct as a basis for its verdict. Thus, in our view, it is inconceivable that in reaching its verdict, the jury relied on the March 1 incident and not also on his previous conduct, and we discern no reasonable possibility that in finding that defendant engaged in a course of harassing conduct over a period of time, the jury relied solely and exclusively on the evidence of the March 1 assault. Therefore, although the verdict itself does not reflect the factual basis for the jury’s finding that defendant engaged in course of harassing conduct, we believe the trial court could conclude beyond a reasonable doubt that it was not based solely and exclusively on the March 1 incident.
We acknowledge this court’s decision in People v. Coelho (2001) 89 Cal.App.4th 861 (Coelho) but find defendant’s reliance on it to be misplaced because Coelho is distinguishable. This case involves a single conviction for an offense that required proof of a course of conduct comprising two or more acts over a specific period of time, and the prosecution introduced uncontradicted evidence of three or four incidents over that period of time.
In any event, even if we assume for purposes of argument that the verdict was based solely on the March 1 incident, we would reject defendant’s claim.
“Section 654 precludes multiple punishment for a single act or omission, or an indivisible course of conduct.” (People v. Deloza (1998) 18 Cal.4th 585, 591.) The purpose of the statute is “to prevent multiple punishment for a single act or omission, even though that act or omission violates more than one statute and thus constitutes more than one crime. Although the distinct crimes may be charged in separate counts and may result in multiple verdicts of guilt, the trial court may impose sentence for only one offense—the one carrying the highest punishment.” (People v. Liu (1996) 46 Cal.App.4th 1119, 1134.) The protection of the statute extends to cases in which a defendant engages in an indivisible course of conduct comprising different acts punishable under separate statutes. (People v. Harrison (1989) 48 Cal.3d 321, 335.) Thus, “ ‘[i]f all of 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.’ ” (People v. Palmore (2000) 79 Cal.App.4th 1290, 1297.) Conversely, multiple punishment is permissible notwithstanding section 654 if the defendant entertained multiple criminal objectives which were independent of and not merely incidental to each other. (People v. Braz (1997) 57 Cal.App.4th 1, 10.)
A defendant’s criminal objective is “ ‘determined from all the circumstances and is primarily a question of fact for the trial court, whose findings will be upheld on appeal if there is any substantial evidence to support it.’ [Citation.]” (People v. Braz, supra, 57 Cal.App.4th at p. 10; see People v. Hicks (1993) 6 Cal.4th 784, 789.) We view the evidence in a light most favorable to the court’s factual determination and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (People v. McGuire (1993) 14 Cal.App.4th 687, 698.)
In imposing consecutive terms, the trial court implicitly found that in stalking and attempting to kill Jessica, defendant entertained different criminal objectives which were independent of and not merely incidental to each other.
On the other hand, in staying the punishment for burglary, the court implicitly found that the burglary was incidental to the two offenses he intended to commit once he unlawfully entered Jessica’s house.
The record reveals that defendant immediately assaulted Jessica when she opened the door, drew his knife, and pushed her to the floor. He said that she knew what she had done and now she would get what she deserved. However, defendant did not immediately attempt to kill or stab her. Rather, he pinned her down and tormented her over a period of time, prolonging the fear he engendered upon entering. When Paige came downstairs, defendant told her that she did not know what Jessica had done to him. Paige left for help, and defendant continued hold Jessica down and brandish his knife. When Paige returned with Ferrando, Jessica almost managed to escape, but defendant again restrained her on the couch, threatened her with his knife, and complained about what she had done to him. He resisted Ferrando’s efforts to get him off Jessica and said he had to finish what he had come to do. However, again he did not stab Jessica but prolonged the assault. Paige then went to get Lichtenstein, and defendant continued to keep Jessica immobilized. When Paige and Lichtenstein returned, defendant was still threatening Jessica, saying he would stab her when the police arrived. True to his word, as the police closed in, defendant stabbed her.
Given the evidence, the court reasonably could have found that defendant entered Jessica’s house intending not only to kill her but also separately to vent his anger at her and gratuitously inflict psychological and emotional trauma by tormenting and threatening her for an extended period of time. Indeed, as defense counsel stressed during his closing argument, defendant was able and had ample opportunity to kill Jessica as soon as he entered her house, but he did not do so. Thus, although the stalking and attempted murder were part of a continuous course of criminal conduct, the record supports the trial court’s implicit finding that the stalking had an intent and objective that was separate from and not merely incidental to defendant’s intent to kill.
Aggravated Term for Burglary
Defendant contends that his right to a jury trial was denied when the court imposed an aggravated term for burglary based on facts not found by the jury.
In Apprendi v. New Jersey (2000) 530 U.S. 466 at page 490 (Apprendi), the United States Supreme Court held that under the Sixth Amendment right to a jury, “[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.”
In Blakely v. Washington (2004) 542 U.S. 296 (Blakely), the court held that “the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” (Id. at p. 303, italics omitted.)
In People v. Black (2005) 35 Cal.4th 1238, 1244 (Black), the California Supreme Court considered whether the imposition of an aggravated term under the California’s determinate sentencing law violated Apprendi and Blakely. The court acknowledged that an aggravated term may be imposed “only if, after a consideration of all the relevant facts, the circumstances in aggravation outweigh the circumstances in mitigation” (Cal. Rules of Court, rule 4.420(b)) and that under this scheme, “[t]he sentencing judge retains considerable discretion to identify aggravating factors” (Black, supra, at p. 1247) and may base a sentence “on aggravating facts that have not been found true by the jury.” (Id. at p. 1248.) Nevertheless, the Black court held that the imposition of an upper term sentence did not violate Apprendi and Blakely.
In Cunningham v. California (2007) 549 U.S. ____ [127 S.Ct. 856] (Cunningham), United States Supreme Court overruled and vacated Black, holding that by “assign[ing] to the trial judge, not to the jury, authority to find the facts that expose a defendant to an elevated ‘upper term’ sentence,” California’s determinate sentencing law “violates a defendant’s right to trial by jury safeguarded by the Sixth and Fourteenth Amendments.” (Id. at p. ___ [127 S.Ct. at p. 860].)
The Attorney General notes that although defendant was sentenced long after Blakely was decided, he did not make a Blakely objection when the aggravated term was imposed. Thus, citing People v. Hill (2005) 131 Cal.App.4th 1089 at page 1103, the Attorney General claims that defendant has forfeited his constitutional claim.
Defendant’s probation report identified four aggravating circumstances: (1) the crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness or callousness; (2) the manner of perpetrating the crime indicated planning, sophistication or professionalism; (3) defendant exploited a position of trust or confidence to commit the offense; and (4) defendant engaged in a pattern of violent conduct that indicates a serious danger to society. (See Cal. Rules of Court, rules 4.421(a)(1), (a)(8), (a)(11) and (b)(1).)
At sentencing, the court found by a preponderance of the evidence that defendant’s crime was “more serious than many other instances of the same crime” and reflected “criminal sophistication and planning.” However, the jury was not requested to make such findings, and its verdict does not reflect that it did so.
The Attorney General argues that the error was harmless beyond a reasonable doubt. (Washington v. Recuenco (2006) ____ U.S. ____ [126 S.Ct. 2546, 2551-2553] [Blakely error subject to harmless-error analysis] (Recuenco); People v. Sandoval, supra, 41 Cal.4th 825, 838 [Blakely error subject to harmless-error review under Chapman standard].) We disagree.
Defendant argues that Apprendi-Blakely-Cunningham error is structural and per se reversible because the aggravated term was imposed based on findings by a preponderance of the evidence rather than beyond a reasonable doubt. However, the primary violation involved the defendant’s right to a jury trial and not the court’s use of the incorrect burden of proof in making findings that the jury should have made. Accordingly, we reject defendant’s claim.
In Washington v. Recuenco, supra, ____U.S. ____ [126 S.Ct. 2546, 2553], a majority of the United States Supreme Court held that the erroneous imposition of an aggravated term based on facts not found by the jury was subject to the harmless error test in Chapman, supra, 386 U.S. 18. The majority likened the error to the failure to instruct on an element of an offense, which, in Neder v. U.S. (1999) 527 U.S. 1, 19-20 (Neder), a majority of the court had held was not a structural error but error subject to the Chapman test. Thus, we must turn to Neder for guidance concerning that test.
In Chapman, the court said the tests requires a court to determine whether it appears “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” (Chapman v. California, supra, 386 U.S. 18, 24.)
Concerning the failure to instruct on an element, the majority in Neder, supra, 527 U.S. 1, stated that “where a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error, the erroneous instruction is properly found to be harmless.” (Id. at p. 17, italics added.) Conversely if, after examining the entire record, “the court cannot conclude beyond a reasonable doubt that the jury verdict would have been the same absent the error . . . it should not find the error harmless.” (Id. at p. 19, italics added.) The court explained that “in typical appellate-court fashion, [a reviewing court] asks whether the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element. If the answer to that question is ‘no,’ holding the error harmless does not ‘reflec[t] a denigration of the constitutional rights involved.’ [Citation.]” (Ibid.)
In People v. Sandoval, supra, 41 Cal.4th 825, the court, citing Recuenco and quoting Neder, explained that Cunningham error required the court to determine “whether, if the question of the existence of an aggravating circumstance or circumstances had been submitted to the jury, the jury’s verdict would have authorized the upper term sentence.” (Id. at p. 838, italics added) If the answer was “yes,” then denial of a right to a jury trial was harmless. Thus, “if a reviewing court concludes, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury, the Sixth Amendment error properly may be found harmless.” (Id. at p. 839, italics added.)
In our view, however, Cunningham error is structural error and therefore should not be subject to harmless error analysis. In this, we agree with Justice Scalia’s dissent in Neder, supra, 527 U.S. at pages 30-40 [dis. opn. of Scalia, J.])
Justice Scalia was joined by Justices Souter and Ginsberg.
In his dissenting opinion, Justice Scalia observed that “[w]hen this Court deals with the content of [the right to a jury trial]—the only [right] to appear in both the body of the Constitution and the Bill of Rights—it is operating upon the spinal column of American democracy.” (Neder, supra, 527 U.S. at p. 30 [diss. opn. Scalia, J.) He opined that a jury’s failure to find one element of an offense is no less a denial of that right to a jury than a failure to find all of the elements. (Id. at p. 31.)
Justice Scalia explained that “[t]he constitutionally required step that was omitted here is distinctive, in that the basis for it is precisely that, absent voluntary waiver of the jury right, the Constitution does not trust judges to make determinations of criminal guilt.” (Neder, supra, 527 U.S. at p. 32 [dis. opn. of Scalia, J], italics in original.) Rather, the constitutional guarantee reflects that “the people reserved the function of determining criminal guilt to themselves, sitting as jurors. [Thus] [i]t is not within the power of us Justices to cancel that reservation—neither by permitting trial judges to determine the guilt of a defendant who has not waived the jury right, nor (when a trial judge has done so anyway) by reviewing the facts ourselves and pronouncing the defendant without-a-doubt guilty. (Ibid., italics in original.) Accordingly, Justice Scalia criticized the majority for concocting a remedy for the violation of the right to a jury trial, in which a reviewing court repeats the violation—i.e., it makes a determination of guilt that is reserved to the jury. (Ibid.)
Justice Scalia further criticized the majority’s analysis as illogical. He noted that the court has always said that it is structural error not susceptible of harmless-error analysis for a court to vitiate all of a jury’s findings by, for example, directing a guilty verdict regardless of how conclusive the evidence of guilt may appear to be. Thus, “[t]he question that this raises is why, if denying the right to conviction by jury is structural error, taking one of the elements of the crime away from the jury should be treated differently from taking all of them away—since failure to prove one, no less than failure to prove all, utterly prevents conviction.” (Neder, supra, 527 U.S. at p. 33 [dis. opn. of Scalia, J].) Justice Scalia pointed out that the majority “never asks, much less answers, this question. Indeed, we do not know, when the [majority’s] opinion is done, how many elements can be taken away from the jury with impunity, so long as appellate judges are persuaded that the defendant is surely guilty.” (Ibid.)
Justice Scalia opined that, in essence, the majority had concluded that taking just one element from the jury did not render the defendant’s trial unfair “because the judge certainly reached the ‘right’ result. But the same could be said of a directed verdict against the defendant—which would be per se reversible no matter how overwhelming the unfavorable evidence. [Citation.] The very premise of structural-error review is that even convictions reflecting the ‘right’ result are reversed for the sake of protecting a basic right.” (Neder, supra, 527 U.S. at p. 34 [dis. opn. of Scalia, J], italics in original; see, e.g., Tumey v. Ohio (1927) 273 U.S. 510 [biased judge compelled reversal regardless of the evidence].)
Justice Scalia found that the majority was impermissibly allowing appellate courts to speculate concerning whether the jury would have found the element that was omitted at trial. However, if such speculation were proper, then “we ought to be able to uphold directed verdicts in cases where the defendant’s guilt is absolutely clear. In other words, the [majority’s] analysis is simply a repudiation of the principle that depriving the criminal defendant of a jury verdict is structural error. Sullivan v. Louisiana [(1995) 508 U.S. 275 (Sullivan)],clearly articulated the line between permissible and impermissible speculation that preserves the well-established structural character of the jury-trial right and places a principled and discernible limitation upon judicial intervention: ‘The inquiry . . . is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error.” [Citation.] Harmless-error review applies only when the jury actually renders a verdict-that is, when it has found the defendant guilty of all the elements of the crime.” (Neder, supra, 527 U.S. at pp. 37-38 [dis. opn. of Scalia, J].)
This is not to say that structural error excludes harmless error analysis in the context of the jury-trial requirement. However, Justice Scalia explained, it is “harmless-error analysis of a peculiar sort, looking not to whether the jury’s verdict would have been the same without the error, but rather to whether the error did not prevent the jury’s verdict. The failure of the court to instruct the jury properly—whether by omitting an element of the offense or by so misdescribing it that it is effectively removed from the jury’s consideration—can be harmless, if the elements of guilt that the jury did find necessarily embraced the one omitted or misdescribed. This was clearly spelled out by our unanimous opinion in Sullivan v. Louisiana[, supra, 508 U.S. 275, 279], which said that harmless-error review ‘looks . . . to the basis on which “the jury actually rested its verdict.” ’ [Citation.] Where the facts necessarily found by the jury (and not those merely discerned by the appellate court) support the existence of the element omitted or misdescribed in the instruction, the omission or misdescription is harmless. For there is then no ‘gap’ in the verdict to be filled by the factfinding of judges.” (Neder, supra, 527 U.S. at p. 35, fn. omitted [dis. opn. of Scalia, J].)
Justice Scalia emphasized that there is an important distinction between confirming a jury’s verdict and speculation directed toward making a judgment that the jury never made. He asserted that the right to render the verdict in criminal prosecutions belongs exclusively to the jury; reviewing it belongs to the appellate court. Thus, speculation that substitutes for a verdict on an element is impermissible. Accordingly, “[w]hereas Sullivan confined appellate courts to their proper role of reviewing verdicts, the [majority] today puts appellate courts in the business of reviewing the defendant’s guilt. The [majority] does not—it cannot—reconcile this new approach with the proposition that denial of the jury-trial right is structural error.” (Neder, supra, 527 U.S. at pp. 39 [diss. Opn. Scalia, J].)
As noted, Neder involved the lack of a jury finding on an element of the underlying offense. However, Recuenco, supra, ____U.S. ____ [126 S.Ct. at p. 2552] establishes that for purposes of analysis under the Sixth Amendment, there is no distinction between an element and an aggravating fact used to increase a sentence beyond the statutory norm. Accordingly, we find that Justice Scalia’s views are applicable with equal force to Cunningham error and believe that Neder, and by extension Recuenco, should be reexamined.
Nevertheless, we are bound to apply the harmless-error standard as articulated in Sandoval. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d 450, 455)
Sandovalnoted that in doing so, a 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. A defendant at trial does not necessarily have the reason or opportunity to challenge the evidence supporting aggravating circumstances unless such a challenge would also have tended to undermine proof of an element of the offense. (Sandoval, supra, 41 Cal.4th at p. 839.) Furthermore, “to the extent a potential aggravating circumstance at issue in a particular case rests on a somewhat vague or subjective standard, it may be difficult for a reviewing court to conclude with confidence that, had the issue been submitted to the jury, the jury would have assessed the facts in the same manner as did the trial court.” (Sandoval, supra, 41 Cal.4th at p. 840.)
Here, although the record may support at least one of the aggravating circumstances found by the court, we are not convinced beyond a reasonable doubt that the jury unquestionably would have found either circumstance beyond a reasonable doubt had they been asked to do so. Accordingly, the appropriate remedy is a remand for resentencing.
Disposition
The judgment is reversed and the matter remanded for resentencing.
WE CONCUR: PREMO, J., ELIA, J.
Decisions of lower federal courts interpreting federal law are not binding on this court. (People v. Williams (1997) 16 Cal.4th 153, 190.) Moreover, Lee is directly on point. The California Supreme Court cases cited by defendant involved different instructional errors and do not suggest that Lee has been implicitly overruled. Therefore, we are bound to follow Lee. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
However, even under the more stringent standards, we would find the error harmless. Since the jury implicitly found specific intent in finding that the attempted murder was premeditated, we can say with absolute certainty that the jury’s verdict rests on a valid legal theory.
Coelho involved unique circumstances. There, the jury found the defendant guilty of seven counts of lewd conduct. Each count required evidence of only a single act, and the verdict on each could only have been based on a single act. However, the prosecution introduced evidence of ten separate acts. Thus, it was impossible to determine the factual basis for each conviction.
In People v. Hill, supra, 131 Cal.App.4th 1089, the defendant was sentenced after Blakely but before Black. Here, however, defendant was sentenced after Black, at which point a Blakely objection would have been futile because the trial court was bound to follow Black. (See Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d 450, 455.) Accordingly, defendant did not forfeit his claim. (People v. Sandoval (2007) 41 Cal.4th 825, 837, fn. 4 (Sandoval.)