Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, James A. Stotler, Judge.
Sharon M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck and Jeffrey J. Koch, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RYLAARSDAM, ACTING P. J.
After a jury found defendant Juan Rodriguez Soria guilty of two counts of first degree murder, the court sentenced him to two consecutive indeterminate terms of 25 years to life. His appeal raises two issues: the court erred in instructing the jury with CALCRIM No. 640 rather than CALJIC No. 8.71, and the consecutive sentences violated his rights to a jury trial under Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403] (Blakely). Because of the nature of the appeal we need not summarize the facts upon which the conviction was based other than to note that defendant was the driver of a car from which a passenger fired a rifle killing two persons.
1. CALCRIM No. 640 adequately instructed the jury.
Penal Code section 1097 provides, “When it appears that the defendant has committed a public offense, . . . and there is reasonable ground of doubt in which of two or more degrees of the crime . . . he is guilty, he can be convicted of the lowest of such degrees only.” Before the adoption of CALCRIM, courts generally used CALJIC No. 8.71 to explain the rule embodied in this statute. It provides, “If you are convinced beyond a reasonable doubt and unanimously agree that the crime of murder has been committed by a defendant, but you unanimously agree that you have a reasonable doubt whether the murder was of the first or the second degree, you must give the defendant the benefit of that doubt and return a verdict fixing the murder as of the second degree [as well as a verdict of not guilty of murder in the first degree].”
The instruction as given here, based on CALCRIM No. 640, is set forth in an appendix. For ease of reference, we have numbered each of the paragraphs of the lengthy instruction. Defendant’s argument focuses on only the eighth and tenth paragraphs of the instruction: 8. “If you all agree the People have proved the defendant committed murder, but you cannot all agree on which degree they have proved, do not complete any verdict forms. Instead, the foreperson should send a note reporting that you cannot all agree on the degree of murder that has been proved.” And 10. “The People have the burden of proving that the defendant committed first degree murder rather than a lesser offense. If the People have not met this burden, you must find the defendant not guilty of first degree murder.”
Defendant contends the instruction fails to comply with Penal Code section 1097 because it does not provide “that any doubt as to which offense was committed must be resolved in favor of the defendant.” (Bold and italics omitted.) But that quotation is from the previously used form instruction and not from the statute.
In addition, the same idea is conveyed by CALCRIM No. 640 if we read beyond the two paragraphs selected by defendant. The seventh paragraph instructs the jurors what to do if they “all agree that the defendant is not guilty of first degree murder,” which is to find him guilty of second degree murder. The eleventh and twelfth paragraphs instruct them what to do if they “all agree that the defendant is not guilty of first or second degree murder,” which is to either find him guilty of voluntary manslaughter or to send a note that they cannot agree that the latter crime has been proved either.
Moreover, defendant’s argument is not persuasive if we look at other instructions given: CALCRIM No. 220 (reasonable doubt), CALCRIM No. 521 (degrees of murder), and CALCRIM No. 200 (instructions to be considered together). These instructions, when read together with the entirety of CALCRIM No. 640, correctly paraphrase the provisions of Penal Code section 1097. (People v. Boyette (2002) 29 Cal.4th 381, 436 [jury presumed to have followed instructions].)
2. Imposition of consecutive sentences does not violate defendant’s right to a jury trial.
Relying on Blakely, supra, 542 U.S. 296 defendant argues that because in sentencing him to consecutive terms, the trial court relied on certain facts relating to the crime not submitted to the jury, his Sixth Amendment right to a jury trial was violated. Since defendant’s opening brief was filed before the U.S. Supreme Court issued its opinion in Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856, 166 L.Ed.2d 856 (Cunningham)] it does not discuss that case. The respondent’s brief does. We have considered the issue under both cases and reach the same result.
In Cunningham, the court held 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 . . . .” (Cunningham, supra, 549 U.S. __ [127 S.Ct. at p. 860].) It did not address the issue of consecutive sentences.
Penal Code section 669 provides that if a defendant is convicted of two or more offenses the trial court “shall direct whether the terms of imprisonment . . . shall run concurrently or consecutively.” Contrary to sentences imposed under the determinate sentencing law where “there is a statutory presumption in favor of the middle term,” there is no such presumption in favor of concurrent as opposed to consecutive sentences for multiple offenses. (People v. Reeder (1984) 152 Cal.App.3d 900, 923.) The consecutive sentences did not increase the penalty for either of the murder convictions. Thus, a consecutive sentence is within the statutory maximum and is not an increased sentence. That a court must make factual findings to impose a consecutive sentence (Cal. Rules of Court, rule 4.425) does not change that conclusion. The consecutive sentences did not violate Cunningham.
The same analysis pertains under Blakely. “[T]he vast majority of courts that have considered this question in the wake of Apprendi [v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435]] and Blakely have reached the conclusion that judicial factfinding in support of consecutive sentences does not violate the Sixth Amendment.” (State v. Tanner (2006) 210 Or.App. 70, [150 P.3d 31, 34].) We agree with this conclusion.
The imposition of consecutive sentences did not violate defendant’s right to a jury trial.
The judgment is affirmed.
WE CONCUR: MOORE, J., IKOLA, J.
APPENDIX
CALCRIM No. 640, as given in this case.
1. You have been given several verdict forms for each count of murder and manslaughter. These instructions apply to each count separately.
2. In connection with Counts 1 and 2, I have given you 12 separate verdict forms. These are: Guilty/Not Guilty of first degree murder and second degree murder and voluntary manslaughter.
3. You may consider these different kinds of homicide in whatever order you wish. I am going to explain how to complete the verdict forms using one order, but you may choose the order to use. As with all the charges in this case, to return a verdict of guilty or not guilty on a count, you must all agree on that decision.
4. If you all agree the People have not proved the defendant committed an unlawful killing, then you must complete each verdict form stating that he is not guilty.
5. If you all agree the People have proved the defendant killed unlawfully, you must decide what kind or degree of unlawful killing the People have proved.
6. If you all agree that the People have proved that the unlawful killing was first degree murder, complete the verdict form stating that the defendant is guilty of first degree murder. Do not complete the other verdict forms for this count.
7. If you all agree that the defendant is not guilty of first degree murder, but you agree the People have proved the killing was second degree murder, you must do two things. First, complete the verdict form stating that the defendant is not guilty of first degree murder. Then, complete the verdict form stating that the defendant is guilty of second degree murder. Do not complete the verdict form stating that the defendant is guilty of second degree murder unless you all agree that the defendant is not guilty of first degree murder. Do not complete the other verdict forms for this count.
8. If you all agree the People have proved the defendant committed murder, but you cannot all agree on which degree they have proved, do not complete any verdict forms. Instead, the foreperson should send a note reporting that you cannot all agree on the degree of murder that has been proved.
9. If you all agree that the defendant is not guilty of first degree murder, but you cannot all agree on whether or not the People have proved the defendant committed second degree murder, then you must do two things. First, complete the verdict form stating that the defendant is not guilty of first degree murder. Second, the foreperson should send a note reporting that you cannot all agree that second degree murder has been proved. Do not complete any other verdict forms for this count.
10. The People have the burden of proving that the defendant committed first degree murder rather than a lesser offense. If the People have not met this burden, you must find the defendant not guilty of first degree murder.
11. If you all agree that the defendant is not guilty of first or second degree murder, but you all agree the People have proved that he is guilty of voluntary manslaughter, then you must do two things. First, complete the verdict forms stating that he is not guilty of first and second degree murder. Second, complete the verdict form stating that he is guilty of voluntary manslaughter. Do not complete the verdict form stating that the defendant is guilty of voluntary manslaughter unless you all agree that the defendant is not guilty of murder. Do not complete any other verdict forms for this count.
12. If you all agree that the defendant is not guilty of first or second degree murder, but you cannot all agree on whether or not the People have proved the defendant committed voluntary manslaughter, then you must do two things. First, complete both verdict forms stating that the defendant is not guilty of first and second degree murder. Second, the foreperson should send a note reporting that you cannot all agree that voluntary manslaughter has been proved.
13. The People have the burden of proving that the defendant committed murder rather than a lesser offense. If the People have not met this burden, you must find the defendant not guilty of murder.