Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County. Francis J. Hourigan III, Judge. (Los Angeles County Super. Ct. No. YA061222)
Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Ana R. Duarte, Lawrence M. Daniels and Catherine Okawa Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
WOODS, J.
INTRODUCTION
Tyrone Thompson, defendant/appellant (“Thompson”), was charged in an information filed by the District Attorney of Los Angeles County for allegedly having committed the following crimes: two counts of first degree burglary pursuant to Penal Code section 459; two counts of first degree residential robbery under section 211; three counts of forcible oral copulation pursuant to section 288a, subdivision (c)(2); one count of forcible rape under section 261, subdivision (a)(2). Special allegations were alleged pursuant to section 12022, subdivision (b)(1) contending that Thompson personally used a knife during the commission of the robberies; personally used a deadly weapon during the course of the rape; and used a deadly weapon while in the commission of a burglary involving more than one victim, under section 667.61, subdivisions (a), (b), (d), and (e). The information also contained allegations Thompson had served four prior prison terms pursuant to section 667.5, subdivision (b). Thompson entered a plea of not guilty, denied all special allegations and demanded a jury trial.
All statutory references are to the Penal Code.
The jury found Thompson guilty on all charges and found all special allegations to be true. The trial court found Thompson had served two prior prison terms and granted a prosecution motion to dismiss the allegations contained in two of the three oral copulation counts under section 667.61.
The trial court denied probation and sentenced Thompson to prison for an indeterminate sentence of 50 years to life, plus a determinate sentence of 27 years 4 months calculated as follows: consecutive 25 years to life on an oral copulation and forcible rape conviction, plus one third the mid term or one year and four months on the conviction for residential robbery, plus the upper term of eight years each for two of the oral copulation convictions, plus the upper term of six years on the conviction for residential robbery, plus one year each on the two weapon enhancements and two prior prison term enhancements, for a total commitment of 77 years and 4 months to life.
The court stayed the enhancement on one of the convictions for first degree residential robbery under section 654.
Thompson was ordered to pay a $10,000 restitution fine on each count for a total of $80,000 per section 1202.4, subdivision (b) and a $20 court security fee under section 1465.8, subdivision (a)(1).
An $80,000 parole revocation fine under section 1202.45 was ordered but suspended. Thompson was given credit for 320 days of pre-sentence custody.
Thompson appealed, contending he was sentenced in violation of his right to jury trial under Blakely v. Washington (2004) 542 U.S. 296 (Blakely). In light of the California Supreme Court’s decision in People v. Black (2005) 35 Cal.4th 1238 (Black I), we previously rejected Thompson’s argument in this regard. Our Supreme Court then transferred this matter back to this Court with directions to vacate our prior decision and to reconsider the cause in light of People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825. Again, we affirm.
At that time, the Attorney General volunteered, and we agreed, that the restitution and parole revocation fines should be reduced to the statutory maximum of $10,000. That portion of our opinion remains unchanged.
FACTUAL AND PROCEDURAL SYNOPSIS
Prosecution evidence.
Events of February 28, 2005.
Amanda G. entered her apartment on the evening of February 28, 2005, in Los Angeles County, left the door unlocked to enable her mother to enter the apartment later that night and fell asleep while watching television in her bedroom. Amanda awoke later that night and observed Thompson standing next to her with a knife in his hand next to her head. Amanda had never seen Thompson before. Thompson licked her vagina after removing her clothing, then took her money and left through a window when he heard Amanda’s family knocking at the door of her bedroom. That night Amanda reported the incident to the police.
Events of March 17, 2005.
Sandy M., mother of Amanda G., was at home alone and lying in her bed on the morning of March 17, 2005, when Thompson, an unknown person entered her apartment and displayed a knife. Thompson held a knife to her throat, choked her, demanded money, threatened to kill her, and directed her to disrobe. Sandy M. was fortunate in persuading Thompson to let her use the bathroom and while she was in the bathroom she called Amanda G.’s boyfriend by cellphone and asked the boyfriend to call the police, which he did. Thompson took $425 in cash belonging to Sandy M. in an envelope with her name on the envelope, removed her underwear when she returned from the bathroom, licked her vagina, placed his penis in her mouth, forced his penis into her vagina and then went into the bathroom and started masturbating.
Sandy M. then ran out of the apartment building, observed the sheriff deputies as they arrived and suggested to them that Thompson might try to escape via the apartment window. Upon running to the back of the building, the deputies observed Thompson running down the alley and attempt to scale a wall. Upon detaining Thompson the deputies found a knife in his pocket and the envelope containing the cash he had taken from Sandy M. Both Sandy M. and Amanda G. identified Thompson as the assailant.
Thompson made various statements to the deputies including: “She invited me in”; “At what point is it considered rape?”; “You’re all charging me with the wrong crime. If anything, you should be charging me with home invasion.”
An examination of Sandy on the day of the crimes revealed three bleeding abrasions on her vagina which were consistent with non-consensual sexual intercourse. DNA evidence matched a sample of semen found on the floor of Sandy M.’s apartment. A sample taken from Thompson’s penis matched Sandy M.’s DNA. Human saliva was found in Sandy M.’s vagina and on Thompson’s penis. Semen was also found on Thompson’s thigh.
At trial, both Amanda G. and Sandy M. identified Thompson as the person who had attacked them.
Thompson’s defense consisted of highlighting inconsistencies in Sandy M.’s statement to medical personnel on the day of the crimes.
DISCUSSION
Initially, Thompson claimed on appeal that the imposition of the upper term sentences based on facts that were neither found by the jury nor admitted by him violated his Sixth Amendment right to a jury trial under Blakely v. Washington, supra, 542 U.S. 296. Citing Black I, supra, 35 Cal.4th 1238, in which our Supreme Court held that Blakely did not invalidate California’s upper term sentencing procedure, we rejected Thompson’s claim, noting that our decision was subject to Thompson’s right to renew his Blakely claim should the United States Supreme Court invalidate California’s upper-term sentencing procedure in Cunningham v. California [No. 05-6551, cert. granted Feb. 21, 2006, 126 S.Ct. 1329], then pending before the United States Supreme Court.
Thereafter, in Cunningham v. California (2007) 549 U.S. 270 (Cunningham), the Supreme Court held California’s determinate sentencing law violates a defendant’s federal constitutional right to a jury trial under the Sixth and Fourteenth Amendments to the United States Constitution by authorizing the trial judge to make factual findings (other than the existence of a prior conviction) that subject a defendant to the prospect of an upper term sentence. “This Court has repeatedly held that, under the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence.” (Cunningham, supra, 549 U.S. at p. __ [127 S.Ct. at pp. 863-864].)
Then, applying Cunningham in Black II, supra, 41 Cal.4th 799, our Supreme Court held that “if a single aggravating factor has been established in a manner consistent with Blakely and Cunningham—by the jury’s verdict, the defendant’s admissions, or the fact of a prior conviction—the imposition by the trial court of the upper term does not violate the defendant’s Sixth Amendment right to a jury trial, regardless of whether the trial court considered other aggravating circumstances in deciding to impose the upper term.” (People v. Towne (2008) 44 Cal.4th 63, 75.) “[S]o long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury.” (Black II, supra, 41 Cal.4th at p. 813.) Further, under Black II, supra, 41 Cal.4th at pages 818 to 820, the right to a jury trial does not apply to the determination of the aggravating circumstance that “[t]he defendant’s prior convictions . . . are numerous or of increasing seriousness.” (See also People v. Towne, supra, 44 Cal.4th at p. 75.)
This matter was then transferred to us with directions to vacate our prior decision and to reconsider this cause in light of Black II, supra, 41 Cal.4th 799, and People v. Sandoval, supra, 41 Cal.4th 825. We received no further briefing.
Moreover, under the subsequent decision in People v. Towne, supra, 44 Cal.4th 63, “the aggravating circumstance that a defendant served a prior prison term or was on probation or parole at the time the crime was committed may be determined by a judge and need not be decided by a jury. In addition, the aggravating circumstance that a defendant’s prior performance on probation or parole was unsatisfactory may be determined by a judge, so long as that determination is based upon the defendant’s record of one or more prior convictions.” (Id. at pp. 70-71.)
In this appeal, Thompson contests the trial court’s imposition of three upper term sentences (on counts 5 and 6—oral copulation counts, and count 7, a robbery count). In determining to sentence Thompson in this manner, the trial court found the People had proven four prior convictions for Thompson (although he only served two prison terms). The court read and considered the People’s sentencing memorandum and heard argument in which the prosecutor reiterated that Thompson had been granted probation in the past, had gone to prison and had been “out for two and a half minutes” on parole when these crimes were committed. Acknowledging Thompson’s four prior convictions, defense counsel’s argument was that Thompson’s prior crimes had involved theft, not violence.
In sentencing Thompson, the court observed at the outset: “[I]t would be an understatement in this case to say anything less than that the evidence is overwhelming and compelling.” Recognizing the obligation, “when appropriate, [to] treat people in a compassionate way,” the court observed: “Up until this case, Mr. Thompson’s criminal history had been one of theft.” Nevertheless, the court emphasized, its obligation was to “judge and punish based upon what was proven up in this case” in which Thompson invaded the privacy of the same home on two occasions, with no witnesses present and no one to protect the inhabitants, using a knife to “threaten, intimidate, and violate two simple innocent people.” The court emphasized in particular both victims’ testimony as to the “cold steel blade of [the] knife that was held to their necks as they were forced to submit to the conduct of this defendant,” the victims’ physical and emotional injuries, and the court’s duty to carry out the purpose of the sentencing law to punish people who offend and to protect society, noting the requirement that the court make findings to justify its imposition of upper term (and consecutive) sentencing.
The court sentenced Thompson to the upper term on two oral copulation counts (counts 5 and 6), stating that Thompson’s conduct in committing the rape and two oral copulation counts against the same victim on the same date had to be considered in the context of all three counts (counts 5, 6 and 8) committed over a period of about two and a half hours with considerable breaks in time and opportunities for reflection in a “secluded setting where obviously, the defendant felt secure and safe to terrorize his victim.” Further, in imposing the upper term on count 7 (first degree robbery), the court cited “the defendant’s continuing criminal conduct and lengthy criminal record. In their sentencing memorandum, the People addressed other issues, which the appellate court has cautioned trial judges when making sentencing decisions about using.
“Those factors, which again, the People have the right to bring to the Court’s attention, include the vulnerability of the victim. The Court clearly believes the victim was vulnerable. . . . [¶] But the Court, while considering this factor in aggravation, vulnerability, as well as [another] factor cited by the People, the planning, sophistication, professionalism, believes the most appropriate part of the defendant’s history to justify the high-base term is his ongoing criminal record and history. But I have considered the other two factors in aggravation.”
It is clear from this record that the trial court intended to impose the longest permissible sentence. In the context of this record, the trial court’s assessment of Thompson’s continuing criminal conduct and lengthy criminal record includes a number of factors, each of which independently rendered Thompson eligible for an upper term sentence: he had four prior convictions, served two prior prison terms, had been granted probation in the past, was on parole at the time of these (as well as prior) crimes, and his crimes were both numerous and of increasing seriousness. Having reviewed this record again, in light of Black II, supra, 41 Cal.4th 799, and People v. Sandoval, supra, 41 Cal.4th 825, we find Thompson has failed to demonstrate error in the trial court’s imposition of upper term sentencing in this case.
The attorney general previously volunteered, and we agreed, that the restitution and parole revocation fine imposed by the court should be reduced to the statutory minimum of $10,000. In sentencing Thompson, the trial court imposed a restitution fine of $10,000 on each of the eight counts charged and for which convictions were imposed for a total of $80,000, and suspended the parole revocation fine in accordance with section 1202.45. However, in accordance with People v. Blackburn (1999) 72 Cal.App.4th 1520, 1534, the maximum restitution fine that can be imposed in a case is $10,000 “regardless of the number of victims or counts involved.” Therefore the restitution and parole revocation fines are to be reduced to the statutory maximum of $10,000.
DISPOSITION
The restitution and parole revocation fines are reduced from $80,000 to $10,000 and the abstract of judgment is ordered corrected to so reflect. Otherwise, the judgment is affirmed in all other respects.
We concur: PERLUSS, P.J., ZELON, J.