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People v. Villeda

California Court of Appeals, First District, Second Division
Mar 5, 2008
No. A114246 (Cal. Ct. App. Mar. 5, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. JOSE LUIS RIVERA VILLEDA, Defendant and Appellant. A114246 California Court of Appeal, First District, Second Division March 5, 2008

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

San Mateo County Super. Ct. No. SC058875

Kline, P. J.

Introduction

On January 6, 2006, Jose Luis Rivera Villeda was convicted by a jury of the 1999 forcible rape, robbery and kidnapping of Jane Doe and was sentenced to state prison for 41 years to life. His sole challenge on appeal is to his sentence. He contends imposition of the upper term and consecutive sentences denied him his rights under the Sixth Amendment as explicated in Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham).

Between the filing of respondent’s brief and appellant’s reply brief, the California Supreme Court issued its opinions in People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval), addressing these issues and the impact of Cunningham upon them. Appellant concedes we are bound by Black II and Sandoval and that the arguments he makes have been rejected by the California Supreme Court in those cases. Appellant raises the issues to preserve them for further federal review. We shall affirm.

Facts and Procedural Background

Jane Doe was attacked in 1999. Six years later, using a new DNA analysis, the genetic material found on her vaginal swabs and in a cap left by the perpetrator were retested and found to match appellant’s DNA.

Jane Doe was 19 at the time of the attack. In 1999, she lived with her parents and worked at a café. On October 30, 1999, while attending a costume party at a friend’s home, she left to fetch a change of clothes from her car. As she opened the passenger door she felt someone behind her and saw appellant, who was holding a knife. He demanded that Jane give him all of her money. She told him she did not have any, but that he could take her car or anything that he wanted. He refused to take her keys and told her to get into the car. Jane was terrified. Appellant ordered her to drive to a park, all the while holding the knife. When they reached a dead end with “construction everywhere” the man raped her, putting the knife on the dashboard behind her. He then allowed her to put her dress on and told her to turn the car around and drive. She feared he was going to kill her. He had her drive into an apartment complex and, as he was leaving he pulled the necklace from her neck. He tried to take her stereo, but could only remove the face plate. He took about 10 CDs from the car. He left after trying and failing to find his baseball cap. She saw the cap on the front seat where he had been sitting. Jane returned to her home and reported the rape. She was taken by police to the places where the man had taken her. She was also taken to the hospital for a rape examination.

At trial, Jane Doe could not identify appellant as her assailant with “one hundred percent” certainty. However, she testified he looked familiar.

Jane and her parents testified as to the traumatic effect the rape had on Jane’s life. Whereas she had previously been very outgoing, she became embarrassed and ashamed, distanced herself from everyone she knew at the time, quit her job at the café, had a difficult time with romantic relationships, gained over 100 pounds and turned to alcohol to deal with her emotions.

During the investigation of her rape, the DNA profile found on the vaginal swab was entered into the state’s offender data base. Thereafter, the case went cold.

In 2004, as a result of appellant’s connection with a different sexual assault, bucal cell swabs were collected from appellant’s mouth. In 2005, a new test was made on the DNA of the unknown assailant extracted from the vaginal swab taken during the rape examination of Jane Doe. This was compared with the cells extracted from appellant and it was determined they were from the same person. DNA was also extracted from sperm found on Jane Doe’s white bra and was determined to be the same as appellant’s. Also appellant was found to be the major provider of the DNA on the baseball cap left at the scene.

On January 4, 2006, an amended indictment charged appellant with: count 1—forcible rape of Jane Doe (Pen. Code, § 261, subd. (a)(2) ), during which he kidnapped her, substantially increasing the risk above that inherent in the offense (§ 667.61, subd. (d)(2) & (e)(1)) and personally used a deadly and dangerous weapon (§§ 667.61, subd. (e)(4), 12022.3, subd. (a)); count 2—kidnap of Jane Doe to commit rape (§ 209, subd. (b)(1)); and count 3— robbery of Jane Doe (§ 212.5, subd. (c)), during which he personally used a deadly and dangerous weapon (§ 12022, subd. (b)(1)). As to these counts, it was alleged that each offense was a serious felony within the meaning of section 1192.7, subdivisions (c)(3), (c)(19) or (c)(20). A July 27, 2005, amendment to the indictment contained five prior conviction allegations, alleging that appellant had been convicted on October 23, 2002, of violations of section 220 (assault with intent to commit rape) and section 212.5, subdivision (c) (second degree robbery) resulting in probation ineligibility (§ 1203, subd. (e)(4)), two strikes (§ 1170.12, subd. (c)(2)), and two prior serious felonies (§ 667, subd. (a)).

All further statutory references are to the Penal Code unless otherwise indicated.

At trial, Deborah W. testified about the circumstances of her assault, robbery, and attempted violent rape by appellant in 2002, during which he grabbed her by the neck and jerked her up and down three or four times until she almost passed out and attempted to strangle her when she cried out for help. When the assault was interrupted by others in response to her cries, appellant initially denied wrongdoing. After giving three different stories to the police, and being questioned about a ring he had taken from her, appellant eventually stated he was sorry for what had happened. (The probation report prepared for sentencing in this case relates that appellant was convicted and sentenced to three years in state prison for these crimes.)

On January 6, 2006, the jury found appellant guilty as charged on all counts and also found true the special allegations tied to each count.

On March 24, 2006, the trial court sentenced appellant to state prison for 41 years to life.

It imposed the upper term of five years for the second degree robbery (count 3), plus an additional and consecutive term of one year for the weapon use enhancement attached to that count. It explained it had selected the upper term because the offense involved great violence or the threat of great bodily harm, Jane Doe had suffered continuing emotional distress and problems thereafter, and the manner of the crime indicated planning.

Turning to count 1, the forcible rape, the court recognized the offense was listed in section 667.61, subdivision (c) and that it had been pleaded and proved that the offense occurred under one or more of the circumstances set forth in subdivision (d), that is that appellant kidnapped the victim and that the movement substantially increased the risk of harm over and above that level of risk inherently necessary in the violent sex offense. Therefore, the court sentenced appellant to state prison for 25 years to life, pursuant to section 667.61, subdivision (d)(2). The court sentenced appellant to the additional consecutive aggravated term of 10 years for the weapon use enhancement accompanying count 1, stating it had selected the upper term because not only did appellant use the knife to facilitate the rape of Jane Doe, but he engaged in violent conduct and his actions indicated he was a serious danger to society. Also, appellant had not expressed any remorse for the crime and never admitted the crime. The court found appellant continued to be a danger to society given his victimization of Jane Doe and Deborah W. The court also found the use of the knife traumatized Jane Doe and impacted her family in a devastating way and that the knife, which was a kitchen knife brought along for the purpose, indicated planning. With respect to each of the two section 667.61 enhancements attached to count 1, the court sentenced appellant to state prison for life and advised him he had to serve 15 years before becoming eligible for parole. The court stayed both sentences pending the completion of the sentence on count 1.

On count 2, kidnapping to commit rape, the court sentenced appellant to life without the possibility of parole. However, it stayed the sentence of count 2, pursuant to section 654, pending completion of the term imposed on count 1. It ordered counts 1 and 2 to run consecutively to count 3.

On April 24, 2006, the court clarified parts of the sentence, stating it had not set the base term for count 1, forcible rape (§ 261, subd. (a)(2)) and had not explained its reasons for ordering that counts 1 and 2 run consecutively to count 3. The court stated that it did not intend to increase or decrease the total sentence time from 41 years to life imprisonment and that the sentence it had imposed remained the same. It then proceeded to identify the base term for count 1, and imposed the eight-year upper term on that count. In imposing the upper term, the court identified circumstances in aggravation as including that “the defendant engaged in violent conduct which indicates a serious danger to society. The crime itself involved planning.” The court also recognized that an argument could be made that the victim was vulnerable, given her age. The court had previously explained why it had selected the upper term of 10 years for the personal use of the knife in conjunction with the rape and it reiterated those reasons. The court further ordered counts 1 and 2 to run concurrently to each other and consecutively to count 3. In explaining its decision to impose full consecutive sentences, the court found the crimes alleged in counts 1 and 3 and counts 2 and 3 involved separate acts of violence and separate threats of violence and were committed at different times and places. The court also specifically took into consideration previously sustained petitions in juvenile delinquency proceedings against appellant and appellant’s prior conviction as an adult for sexual assault, noting the latter incident involving Deborah W. “showed an escalation of the violence perpetrated against the victim in this particular case.”

Appellant filed a timely notice of appeal on June 21, 2006.

Discussion

The law

In Cunningham, supra,549 U.S. ___ [127 S.Ct. 856],“the United States Supreme Court, disagreeing with [the California Supreme Court’s] decision in this matter (People v. Black (2005) 35 Cal.4th 1238 . . . (Black I)),held that California’s determinate sentencing law (DSL) violat[ed] a defendant’s federal constitutional right to a jury trial under the Sixth and Fourteenth Amendments to the United States Constitution by assigning to the trial judge, rather than the jury, the authority to make the factual findings that subject a defendant to the possibility of an upper term sentence.” (Black II, supra, 41 Cal.4th at p. 805.) The high court has recognized two exceptions to a defendant’s right to a jury trial on an aggravating fact that renders him or her eligible for a sentence above the statutory maximum. (Sandoval, supra, 41 Cal.4th at p. 836.) “First, a fact admitted by the defendant may be used to increase his or her sentence beyond the maximum authorized by the jury’s verdict. (Blakely [v. Washington (2004)] 542 U.S. [296,] 303 [(Blakely)].) Second, the right to jury trial and the requirement of proof beyond a reasonable doubt do not apply to the aggravating fact of a prior conviction. (Id. at p. 301; see Apprendi [v. New Jersey (2000)] 530 U.S. [466,] 490; Almendarez-Torres v. United States (1998) 523 U.S. 224, 239-244 . . . .)” (Sandoval, supra, 41 Cal.4th at pp. 836-837.)

On remand from the United States Supreme Court, the California Supreme Court concluded in Black II, supra, 41 Cal.4th 799, that the “defendant did not forfeit the issue by failing to object to his sentence on Sixth Amendment grounds in the trial court”; “that imposition of an upper term sentence did not violate defendant’s right to a jury trial, because at least one aggravating circumstance was established by means that satisf[ied] Sixth Amendment requirements and thus made him eligible for the upper term”; and that “neither Cunningham nor the relevant prior high court decisions apply to the imposition of consecutive sentences.” (Id. at pp. 805-806, italics added.)

In Black II, supra, 41 Cal.4th 799, the court held that “there is no Sixth Amendment error in a case in which one or more aggravating circumstances have been established in accordance with Sixth Amendment requirements.” (Sandoval, supra, 41 Cal.4th at p. 838.) As the court explained in Black II, “the constitutional requirement of a jury trial and proof beyond a reasonable doubt applies only to a fact that is ‘legally essential to the punishment’ (Blakely, supra, 542 U.S. at p. 313), that is, to ‘any fact that exposes a defendant to a greater potential sentence’ than is authorized by the jury’s verdict alone (Cunningham, supra, 549 U.S. at p. ___ [127 S.Ct. at p. 863]).” (Black II, at p. 812; see Rita v. United States (2007) 551 U.S. ___ [127 S.Ct. 2456, 2466]; accord, Sandoval, supra, 41 Cal.4th at pp. 838-839.) “ ‘Accordingly, so 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, at p. 813.) By the same reasoning, 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.” (Sandoval, at p. 839.)

The court in Black II, supra, 41 Cal.4th 799, rejected the defendant’s challenge to the court’s imposition of the upper term, concluding that the defendant’s criminal history and the jury’s finding that the offense involved the use of force or violence, established two aggravating circumstances that each independently satisfied Sixth Amendment requirements and rendered him eligible for the upper term. (Id. at p. 820.) The court also rejected the defendant’s challenge to the imposition of consecutive sentences, concluding that “Cunningham . . . does not undermine our previous conclusion that imposition of consecutive terms under section 669 does not implicate a defendant’s Sixth Amendment rights.” (Id. at pp. 821-822.)

No forfeiture

The Attorney General argues that appellant has forfeited his claim by failing to object under Apprendi and Blakely or his right to a jury trial. We disagree. Blakely was issued on June 24, 2004, nearly two years before appellant here was sentenced. However, at the time of sentence, the California Supreme Court had held California’s sentencing scheme was constitutional in Black I and the United States Supreme Court had not yet overturned that decision in Cunningham. Consequently, any objection to sentencing on Blakely or Apprendi grounds would have been futile. As recognized in Sandoval, supra, 41 Cal.4th at page 837, footnote 4: “An objection in the trial court is not required if it would have been futile. [Citation.] As the Attorney General concedes, our decision in Black I was binding on the lower courts until it was overruled by the high court. [Citation.] Had defendant requested a jury trial on aggravating circumstances, that request clearly would have been futile, because the trial court would have been required to follow our decision in Black I and deny the request.” People v. Hill (2005) 131 Cal.App.4th 1089, 1103, upon which the Attorney General relies, is clearly distinguishable. The defendant in that case was sentenced on July 1, 2004, after Blakely, but well before issuance of Black I.

Black I was decided on June 20, 2005. Appellant was sentenced on March 24, 2006, and parts of the sentence were “clarif[ied]” by the court on April 24, 2006. Cunningham was issued on January 22, 2007.

Upper term

Appellant does not dispute that he has suffered prior adjudications as a juvenile and that as an adult he was convicted of crimes related to his attack on Deborah W. and that he served a prior prison term for those crimes. At several points in his appellant’s reply brief, he acknowledges that we are bound by the holdings of Black II and Sandoval and that he raises the issue to preserve his federal remedies. As we have stated, the California Supreme Court has recognized that “the right to jury trial and the requirement of proof beyond a reasonable doubt do not apply to the aggravating fact of a prior conviction.” (Sandoval, supra, 41 Cal.4th at pp. 836-837.) It has further concluded that “so 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.)

Here, there was no dispute that appellant had suffered prior convictions as an adult for felony assault to commit mayhem/rape, felony second degree robbery, various misdemeanors and juvenile adjudications. (Indeed, the court specifically relied upon the priors in imposing consecutive sentences, stating, “[t]he court also used these factors in aggravation pursuant to California Rule[s] of Court[, rules] 4.425(B) and 4.421(B)(2) in determining that counts 1 and 3 run consecutive to each other.” Consequently, appellant was “eligible” for the upper term by virtue of the fact of his prior convictions and the court’s imposition of that term did not violate the Sixth Amendment. (See Black II, supra, 41 Cal.4th at pp. 813, 820.)

Appellant argues that Black II and Sandoval were wrongly decided and that they violate the Supreme Court’s decision in Cunningham. Specifically, he challenges the court’s conclusion that the exception for prior convictions includes “not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions. [Citations.]” (Black II, supra, 41 Cal.4th at p. 819.) He also argues that whether there is a prior conviction exception to Cunningham “is in serious doubt.” He urges that Black II wrongly determined that Cunningham is inapplicable to consecutive sentences. Further, appellant argues that the California Supreme Court has erred in “attempt[ing] to rewrite the [DSL] to comply with Cunningham and impose its rewrite retroactively,” and that both the Sandoval and the Legislative response to Cunningham in amending section 1170(amended by Stats. 2007, ch. 3, (S.B. 40), § 2 eff. Mar. 30, 2007) still violate Cunningham and the Sixth Amendment. Consequently, he contends that any sentencing error could not have been harmless.

As appellant recognizes, we are bound by the California Supreme Court’s decisions in Black II, supra, 41 Cal.4th 799 and Sandoval, supra, 41 Cal.4th 825 . (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) In light of the conceded existence of prior convictions, neither the imposition of the upper term nor of consecutive sentences violated Cunningham or the Sixth Amendment.

Disposition

The judgment is affirmed.

We concur: Lambden, J., Richman, J.


Summaries of

People v. Villeda

California Court of Appeals, First District, Second Division
Mar 5, 2008
No. A114246 (Cal. Ct. App. Mar. 5, 2008)
Case details for

People v. Villeda

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. JOSE LUIS RIVERA VILLEDA…

Court:California Court of Appeals, First District, Second Division

Date published: Mar 5, 2008

Citations

No. A114246 (Cal. Ct. App. Mar. 5, 2008)