Opinion
NOT TO BE PUBLISHED
Super. Ct. No. SF09987
CANTIL-SAKAUYE, J.
Defendant was an 18 year old with no criminal record when he committed a string of heinous crimes over a seven-day period in the spring of 2006. From March 29, 2006, to April 4, 2006, defendant robbed, raped, and burgled his way to a single information charging him with 27 separate criminal offenses, and numerous special allegations. Defendant’s crime spree left 14 victims in its wake, including a young pregnant woman, her younger sister, and several senior citizens.
On appeal, defendant asserts three claims of sentencing error. First, defendant claims the trial court erred in imposing the upper term on three counts without submitting the aggravating factors to a jury. Second, defendant claims the matter must be remanded for the trial court to specify the allegation on which it relied in imposing life without parole for 25 years on count 3. Third, he claims the trial court erroneously used Penal Code section 667.61, subdivision (e)(5) to impose a life term on three separate convictions stemming from a single, multi-count charging information. We address these claims in a different order, and affirm the judgment.
Hereafter, undesignated statutory references are to the Penal Code.
Defendant’s robbery of several senior citizens at their respective churches is not relevant for purposes of this appeal. Thus, we will forgo a description of those crimes. Instead, we will focus on the facts surrounding those other crimes for which he was convicted by a jury, and the resulting sentence which defendant now appeals.
I.
FACTS
On April 3, 2006, M. was returning to her apartment at approximately 8:45 p.m., after taking dinner to her boyfriend. After parking in her parking stall and while seated in her car, she was approached by a man dressed in black, later identified as the defendant. Defendant pointed a gun at M. and demanded cash. M. told him that she did not have any cash but offered him her ATM card and pin number, which defendant accepted. Defendant then began to walk away.
When defendant was approximately five steps away from her, M. used her cell phone to call her boyfriend and tell him that she was okay. Defendant stopped, turned around, and came back to the car. Defendant demanded M. put down the phone and get out of the car, which she did.
After putting his hand under her shirt and down her pants, defendant told M. to get back in the car. He then climbed inside the passenger seat. Still holding the gun, he exposed his penis and told M. to “suck it.” Defendant allowed M. to stop when she told him she was getting “sick.” M. then told defendant that if he was going to rape her, she wanted to get it over with. Defendant then ordered her into the back seat of her car and told her to take off her pants. Then he raped her; all the while holding the gun. Before he left, the defendant told M. to get an abortion if she got pregnant, then made her promise she would not tell anyone what he had done to her.
The following day, A.J. and her husband, K., were driving home to the same apartment complex where M. lived at approximately 9:00 p.m. As A.J. pulled into their parking stall, she noticed defendant, dressed in black clothing, pacing in front of the stall. Concerned, she locked the car doors. Defendant then approached the passenger side door, where K. was sitting, and forced K. out of the car at gunpoint. Defendant demanded money from K., who said they had none, but after repeated demands gave defendant the $20 bill he had in his wallet and offered his ATM and credit cards. Defendant then asked A.J. and K. where they lived and, at gunpoint, forced them to lead him to their apartment.
At their front door, A.J. rang the doorbell and her younger sister G.U. answered the door. Aiming his gun at them, defendant forced all three into the bedroom where he left K. and G.U., taking A.J. back into the living room. In the living room, defendant demanded more money and, with his gun pointed at her, A.J. gave him approximately $500 dollars from a jar in the kitchen, and then asked him to leave. Rather than leave, defendant forced A.J. to take off her clothes and orally copulate him. Then he raped her, and attempted to sodomize her. A.J. protested, telling defendant she was pregnant, but defendant said he did not care.
During the assault, K. cried out from the bedroom asking defendant not to hurt A.J. Twice the defendant stopped assaulting A.J. long enough to go back into the bedroom and tell K. to “shut up.” The second time he went into the bedroom, defendant hit K. in the chin with the gun. When defendant was finished sexually assaulting A.J., he returned her to the bedroom and took G.U. into the living room.
Once defendant had G.U. in the living room he fondled her breasts and forced her to orally copulate him. He then demanded that she take off her clothes, which she did. When G.U. did not respond to his questions regarding her virginity, he told her to put her clothes back on and he forced her to orally copulate him. He then brought all three victims back into the living room where he made them kneel in front of the couch while he counted the money he had taken from them, and then he left.
Defendant was subsequently arrested and charged with 27 separate criminal offenses. A jury convicted him on 24 counts and he was sentenced to an aggregate term of 108 years to life in prison, plus life. Defendant now appeals his sentence.
II.
DISCUSSION
A. The Use of the Multiple Victim Enhancement in Section 667.61, subdivision (e)(5) was Proper
Defendant contends that the sentencing enhancement codified in section 667.61, subdivision (e)(5) may not be used more than once in a “single charging information.” It is his position that to use the enhancement more than once is a violation of section 654’s prohibition against dual punishment.
Defendant concedes that this argument was previously rejected in People v. DeSimone (1998) 62 Cal.App.4th 693, 700 and People v. Murphy (1998) 65 Cal.App.4th 35, 40. He nevertheless invites this court to “reconsider” these rulings. We decline his invitation. Accordingly, we reject defendant’s claim.
B. The Court Properly Imposed a Life Term Pursuant to Section 667.61, subdivision (d)
In his opening brief defendant argues that as to count 3, the trial court failed to specify the required statutory grounds in support of its decision to impose a prison term of life without the possibility of parole for 25 years. In their response, the People correctly point out that, in fact, the trial court did specify the statutory basis for its sentencing decision.
Thus, in his reply, defendant changes his argument, arguing instead that the court was required to find two circumstances under section 667.61, subdivision (d) in order to impose a sentence of life without parole for 25 years. Defendant misreads the statute. In 2006, section 667.61, subdivision (a) read: “A person who is convicted of an offense specified in subdivision (c) under one or more of the circumstances specified in subdivision (d) or under two or more of the circumstances specified in subdivision (e) shall be punished by imprisonment in the state prison for life and shall not be eligible for release on parole for 25 years except as provided in subdivision (j).” (Italics added.)
Changes made to Penal Code section 667.61, subdivision (a) in 2007 do not affect this appeal.
Defendant was convicted of rape by force or fear in count 3 a violation of section 261, subdivision (a)(2), an offense specified in section 667.61, subdivision (c). (§ 667.61, subd. (c)(1).) Pursuant to the unambiguous language of section 667.61, subdivision (a) the trial court was therefore required to find true only one of the circumstances specified in subdivision (d). (§ 667.61, subd. (a).) And the court found pursuant to section 667.61, subdivision (d)(4), that the offense for which defendant was convicted in count 3, the rape, was committed during the commission of a burglary. The court stated, “[o]n count 3, the 261(a)(2), as to [A.J.] . . . the allegation this took place during a burglary . . . I will impose a term of life without parole for 25 years. The trial court did specify the statutory basis for imposition of the term on count 3. Accordingly, there was no error.
C. Use of the Aggravating Factors to Impose the Upper Terms was Harmless Error
Finally, defendant claims that imposition of the upper term on counts 2 (forcible oral copulation of A.J.), 6 (first degree burglary of A.J.), and 16 (rape by force or fear of M.) violates the Sixth and Fourteenth Amendments to the United States Constitution under Cunningham v. California (2007) 549 U.S. __ [166 L.Ed. 2d 856] (Cunningham). The trial court error was harmless.
In Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [147 L.Ed.2d 435, 455] (Apprendi), the United States Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be [tried] to a jury, and proved beyond a reasonable doubt.” For this purpose, the statutory maximum is the maximum sentence a court could impose based solely on facts reflected by a jury’s verdict or admitted by the defendant; thus, when a court’s authority to impose an enhanced sentence depends upon additional fact findings, there is a right to a jury trial and proof beyond a reasonable doubt on the additional facts. (Blakely v. Washington (2004) 542 U.S. 296, 303-305 [159 L.Ed.2d 403, 413-414] (Blakely).)
Accordingly, 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 safeguarded by the Sixth and Fourteenth Amendments.” (Cunningham, supra, 549 U.S. at p. ___ [166 L.Ed.2d at p. 864], overruling People v. Black (2005) 35 Cal.4th 1238 (Black I) on this point, vacated in Black v. California (2007) __ U.S. __ [167 L.Ed.2d 36].)
In imposing the upper term on count 2 (the forcible oral copulation of A.J.), the court cited one factor in aggravation, i.e., the degree of cruelty and callousness displayed by the act. Regarding count 6, first degree robbery of A.J., the court cited the fact that defendant’s crime showed planning because he lay in wait for A.J. and K. Regarding count 16, the rape of M. by force or fear, the court cited the particular vulnerability of M. in imposing the upper term.
That these factors were not submitted to the jury does not mean the upper terms must be reversed. Rather, “we must 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.” (People v. Sandoval (2007) 41 Cal.4th 825, 838 (Sandoval).) “[I]f [we] conclude[], 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.)
Here, the evidence was overwhelming and uncontroverted that, with regard to count 2 (the forcible oral copulation of A.J.), defendant forced a woman he knew was pregnant to orally copulate him while her husband cried out from an adjoining room. Twice the defendant stopped assaulting A.J. in order to tell her husband to “shut up,” then he resumed sexually assaulting her. We have no doubt that if the jury had been asked to determine whether these facts supported the aggravating factor of cruelty and callousness, the jury would have found the factor true beyond a reasonable doubt. Thus, the use of this aggravating factor without a jury finding was harmless. (Sandoval, supra, 41 Cal.4th at p. 839.)
With regard to count 6, the first degree robbery of A.J., the evidence established that on April 4, 2006, defendant returned to the same apartment complex where he previously robbed and raped M. He dressed all in black, brought a gun, and was pacing outside near A.J. and K.’s parking stall when they arrived home. We conclude that based on this uncontroverted evidence, had the jury been asked to determine whether defendant’s crime showed planning the jury would have found the factor true beyond a reasonable doubt. Thus, the use of this aggravating factor without a jury finding also was harmless. (Sandoval, supra, 41 Cal.4th at p. 839.)
Lastly, as to count 16, the evidence related to defendant’s rape of M. by force or fear was similarly uncontroverted. As an initial matter, M. was alone and unarmed. After she gave defendant her ATM card and pin number, defendant began to walk away. At that point, believing the danger had passed and that she was safe from harm, M. called her boyfriend to tell him she was okay rather then running into her apartment, locking her car doors, or driving away. Having lulled M. into a sense of security, the defendant then returned and raped her. Faced with these facts, any reasonable jury would have found true the aggravating factor that M. was “particularly vulnerable” when defendant raped her. Thus, the use of this aggravating factor without a jury finding also was harmless. (Sandoval, supra, 41 Cal.4th at p. 839.)
DISPOSITION
The judgment is affirmed.
We concur: SCOTLAND, P.J., NICHOLSON, J.