Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Fresno County No. F05908615-8. Wayne R. Ellison, Judge.
Deanna F. Lamb, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, John G. McLean and David Andrew Eldridge, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
VARTABEDIAN, Acting P. J.
Defendant Adrian Joe White was convicted of several sex crimes. Additional findings included that he was convicted of a prior serious felony within the meaning of the Three Strikes law, that he served four prior prison terms, and that he suffered a prior serious felony conviction within the meaning of Penal Code section 667, subdivision (a).
All future code references are to the Penal Code unless otherwise noted.
He was sentenced to prison for 69 years. He appealed, claiming the upper and consecutive terms were imposed based on facts not found by the jury, there was a dual use of facts in imposing full consecutive sentences, and the court erroneously imposed a security fee for offenses committed before the effective date of the statute. We applied the recent United States Supreme Court case of Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] and determined that defendant’s sentence was not properly imposed. We determined that the matter should be remanded to the trial court for further proceedings.
The California Supreme Court granted review and then transferred the matter back to this court with directions to vacate our opinion and 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. After reconsidering the matter we affirm the judgment.
FACTS AND PROCEEDINGS
In the early morning hours of January 4, 1996, 14-year-old Elizabeth was asleep in the living area of an apartment she shared with her mother, her 16-year-old brother, her four-year-old sister, and her 46-year-old grandfather. Her brother and grandfather were asleep in the bedroom. Her mother and sister were sleeping nearby. Elizabeth awoke when she felt someone rubbing her vagina underneath her panties. She was told by defendant, an intruder, that if she did not cooperate he would kill her. He told Elizabeth that he had a gun and that if she did not remain quiet he would kill her sister. She was raped (count 1), orally copulated (count 4), and her vagina and anus were sexually penetrated by force with a finger (counts 2 & 3). Elizabeth’s mother woke up when defendant dropped something. Defendant told the mother not to move, that he had a gun. Defendant left.
The mother called the police. Elizabeth was examined at the hospital, and swabs were taken from her. In addition, the sleeping bag she was using at the time was kept as evidence. In September of 2003, DNA from the sperm gathered from Elizabeth and from the sleeping bag was identified as belonging to defendant. Neither Elizabeth nor her mother was able to identify defendant at trial. Because of the passage of time, Elizabeth was not able to recall all the details of the assault at trial. The officer who took her statement testified about the statement Elizabeth gave shortly after the attack.
Defendant did not challenge that a sexual assault on Elizabeth had occurred. His defense was that the DNA wrongly identified him as the perpetrator.
Defendant was convicted of forcible rape (§ 261, subd. (a)(2)), forcible oral copulation (§ 288a, subd. (c)(2)), and two counts of sexual penetration by force (§ 289, subd. (a)(1)). In addition, defendant admitted he suffered a prior serious felony (burglary) within the meaning of the Three Strikes law (§ 667, subds. (b)-(i)), suffered a prior serious felony within the meaning of section 667, subdivision (a)(1) and suffered four prior prison terms (§ 667.5).
The court sentenced defendant to the aggravated term of eight years for each of his convictions. These terms were doubled to 16 years based on the strike. The trial court gave the following reasons for imposing the aggravated terms: “[F]irst of all, given the circumstances of these crimes, the manner in which they were committed, the fact that they were committed at night in the victim’s own home with her family present, and that there were threats made to her and her family, her age at the time of the commission of this crime, and her particular vulnerability with her mother and baby sister in the room when this occurred and the threats to them, first of all, I find that the circumstances in aggravation for those reasons alone greatly outweigh any in mitigation that may apply in this case. And I can’t think of any, frankly, that apply to the circumstances of this case. And for that reason I’m going to apply the aggravated term as to each of these four counts.”
The court then discretionarily ordered that these terms run fully consecutive pursuant to section 667.6, subdivision (c). The court’s reasons were as follows: “I also find in light of your criminal history and the four prison priors, which counsel has referred to here, which were found true or admitted by the--by you during the course of this case, and the circumstances of the crime itself, that fully consecutive sentencing is not only appropriate but demanded, really, in the court’s view under the circumstances of this case.”
The court added five years for the section 667, subdivision (a) enhancement. The court imposed and then struck the four one-year prior prison terms pursuant to section 1385. Defendant was sentenced to prison for a total term of 69 years.
DISCUSSION
I. Imposition of the Upper Term
In Cunningham v. California, supra, 549 U.S. ___[127 S.Ct. 856] the United States Supreme Court held that Cunningham’s right to trial by jury was denied under California’s determinate sentencing law (DSL) because the judge, not the jury, found the facts that resulted in an upper term sentence. Petitioner Cunningham was convicted of continuous sexual abuse of a child. Under California’s DSL, Cunningham faced the lower term of six years, the mid term of 12 years, or the upper term of 16 years. In order to impose the upper term, the judge had to find one or more facts in aggravation. The trial judge found six aggravating factors, including victim vulnerability and that Cunningham was a serious danger to the community based on his violent conduct. Cunningham’s lack of a prior record was found as the sole factor in mitigation. The trial court found that the aggravating factors outweighed the one mitigating factor and sentenced Cunningham to the upper term. The appellate court upheld his sentence. The California Supreme Court denied Cunningham’s petition for review, having recently decided in People v. Black (2005) 35 Cal.4th 1238 (Black I) “that the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence … under California law does not implicate a defendant’s Sixth Amendment right to a jury trial.” (Id. at p. 1244.)
The United States Supreme Court granted review and disagreed with the California Supreme Court’s decision in Black I. “[T]he Federal Constitution’s jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant.” (Cunningham v. California, supra, 549 U.S. at p. ___ [127 S.Ct. at p. 860].)
The California Supreme Court applied Cunningham in Black II. Black II held “the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term” under California’s DSL, and concluded that “if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely [Blakely v. Washington (2004) 542 U.S. 296], the defendant is not ‘legally entitled’ to the middle term sentence, and the upper term sentence is the ‘statutory maximum’” for Sixth Amendment purposes. (Black II, supra, 41 Cal.4th at p. 813.) “[I]mposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (Id. at p. 816.)
Black II further explained: “[U]nder the DSL the presence of one aggravating circumstance renders it lawful for the trial court to impose an upper term sentence. [Citations.] The [trial] court’s factual findings regarding the existence of additional aggravating circumstances may increase the likelihood that it actually will impose the upper term sentence, but these findings do not themselves further raise the authorized sentence beyond the upper term. No matter how many additional aggravating facts are found by the court, the upper term remains the maximum that may be imposed. Accordingly, judicial factfinding on those additional aggravating circumstances is not unconstitutional.” (Black II, supra, 41 Cal.4th at p. 815.)
As to factual circumstances in Black II, the defendant was convicted of one count of continuous sexual abuse of a child (§ 288.5) and two counts of lewd and lascivious conduct with a child (§ 288, subd. (a)). The jury found true the special allegations that the defendant committed continuous sexual abuse by use of force, violence, duress, menace, and fear of immediate and unlawful bodily injury; he had substantial sexual conduct with a victim under the age of 14 years; and he committed specific sexual acts with more than one victim. The trial court imposed upper and consecutive terms based on the nature, seriousness, and circumstances of the crime and the defendant’s lengthy criminal record. (Black II, supra, 41 Cal.4th at pp. 806-807.)
Black II found that the trial court’s imposition of the upper term did not violate Cunningham “because at least one aggravating circumstance … was established by means that satisfy Sixth Amendment” requirements and thus made the defendant eligible for the upper term. (Black II, supra, 41 Cal.4th at p. 816.) “[A]s long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi [Apprendi v. New Jersey (2000) 530 U.S. 466] and its progeny, any additional factfinding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to jury trial.” (Id. at p. 812.)
The trial court’s reliance on the nature, seriousness, and circumstances of the crime as an aggravating circumstance did not violate Cunningham because the jury found the force and violence special allegation true beyond a reasonable doubt. “Because the jury found this allegation to be true, the ‘maximum sentence’ that could be imposed ‘solely on the basis of the facts reflected in the jury verdict or admitted by the defendant’ [ citation] was the upper term.” (Black II, supra, 41 Cal.4th at p. 817.) As for the defendant’s criminal history, Black II noted that “[t]he United States Supreme Court consistently has stated that the right to a jury trial does not apply to the fact of a prior conviction. [Citations.] ‘[R]ecidivism ... is a traditional, if not the most traditional, basis for a sentencing court’s increasing an offender’s sentence.’ [Citation.]” (Id. at p. 818.) Black II held the prior-conviction exception 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,” such as the defendant’s prior convictions being numerous and of increasing seriousness. (Id. at p. 819.)
In Black II the court found that in addition to the aggravating circumstance of force and violence found true by the jury, the defendant’s criminal history was a second aggravating circumstance that made him eligible for the upper term sentence. The trial court did not expressly rely on the defendant’s criminal history when it imposed the upper term. (Black II, supra, 41 Cal.4th at p. 818.)
Defendant’s prior criminal history here, spanning more than 30 years, was established by overwhelming evidence. His life of crime began when he was 12 years old with a finding that he committed a petty theft. His juvenile criminal history continued with adjudications for robbery, burglary, grand theft on two occasions, battery on two occasions, and petty theft. His adult criminal history reflects continuing criminal behavior, including trespassing, vandalism, numerous burglary convictions, numerous drug crimes, and two separate convictions for assault with a deadly weapon. He served several terms in prison and violated parole on 12 occasions.
Defendant’s criminal history was ample and supported at a bare minimum one aggravating circumstance established by means that satisfy Sixth Amendment requirements and thus made him eligible for the upper term.
Defendant contends the prior criminal history cannot be used to impose the upper term because the court used his criminal history as a factor in imposing consecutive sentences. As we have explained, defendant’s criminal history was sufficient to make him eligible for the upper term. As we will explain, the court’s utilization of his prior criminal history to impose consecutive sentences rather than the aggravated terms is harmless error.
In addition to arguing that his criminal history could not be used in aggravation because it was used to impose the consecutive sentences, defendant argues that if we remand the case to the trial court, the trial court may not use the prior convictions he admitted during trial to aggravate his sentence because he was never informed of the direct consequences of those admissions at the time he made them.
“[A]dvisement as to the consequences of a plea is not constitutionally mandated.” (People v. Walker (1991) 54 Cal.3d 1013, 1022.) An admission must be set aside only if the failure to advise the accused of the consequences of his admission is prejudicial. The defendant must demonstrate that he would not have entered his admission if he had been told about the omitted consequence. (Id. at pp. 1022-1023.)
Although we do not believe that the facts relating to a defendant’s prior criminal history need to be admitted by the defendant before they can be utilized as a circumstance in aggravation, we need not rule on that question because defendant has failed to demonstrate that he would not have entered his admissions to the prior convictions and prior prison terms if he had been told about the consequences (to be used to impose aggravated and/or consecutive terms) of his admissions. Proving prior convictions and prior prison terms is normally a very straightforward procedure with no factual disputes. Admitting them under normal circumstances merely bypasses the time necessary to conduct the formal procedure of proving them. Defendant has not shown that his prior convictions and prior prison terms were anything other than ordinary, such that he would not have entered his admissions if he had been told about their use in aggravating his sentence. We note that, in addition to the prior convictions and prior prison terms that defendant admitted at trial, his remaining criminal history contained abundant evidence that could have been utilized by the trial court to impose aggravated and/or consecutive terms.
II. Imposition of Full Consecutive Terms
The trial court imposed full consecutive terms for all counts. It did so under the discretionary provision of section 667.6, subdivision (c). Full consecutive sentences are mandatory for certain sex crimes under section 667.6, subdivision (d) when the crimes involve separate victims or involve the same victim on separate occasions. The imposition of full consecutive sentences for the same enumerated sex crimes is discretionary “whether or not the crimes were committed during a single transaction.” (§ 667.6, subd. (c).)
Defendant contends the trial court could not properly impose full upper term consecutive sentences because the findings made to authorize the full consecutive sentences were not found by the jury beyond a reasonable doubt. In particular, defendant argues that the questions of whether the crimes were committed on the same occasion and arose from the same set of operative facts or, alternatively, were committed so closely in time to indicate a single transaction were issues that should have been submitted to the jury for determination beyond a reasonable doubt.
Cunningham does not apply to the imposition of consecutive sentences. Black II reaffirmed Black I’s holding that the imposition of consecutive sentences based on facts not found by the jury did not violate a defendant’s Sixth Amendment rights. “[A] ‘jury’s verdict finding the defendant guilty of two or more crimes authorizes the statutory maximum sentence for each offense.’ [Citation.]” (Black II, supra, 41 Cal.4th at p. 821.) Black II noted that consecutive sentences were not addressed in Cunningham, and there was nothing in Cunningham to undermine Black I’s analysis of that issue. (Black II, supra, at pp. 820-823.)
As previously set forth, under section 667.6 when a defendant commits a number of enumerated sex crimes he is subject to either mandatory full consecutive sentences (if the crimes involve separate victims or involve the same victim on separate occasions), or discretionary full consecutive sentences (whether or not the crimes were committed during a single transaction). Here defendant was sentenced under the discretionary provision. He was subject to this provision because he was convicted by a jury beyond a reasonable doubt of several of the enumerated sex offenses. A finding that the crimes were committed so closely in time to indicate a single transaction is not a criterion for inclusion within subdivision (c); inclusion occurs whether or not the crimes were committed during a single transaction. Although defendant states that a finding of separate occasions was required to subject him to the full consecutive sentencing provision, this finding is required only for mandatory sentencing under subdivision (d), not subdivision (c).
To the extent that defendant may be arguing that there must be a separate factual finding by a jury beyond a reasonable doubt to exclude his sentence from the benefits of the application of section 654, this argument fails. The line of cases beginning with Apprendi does not apply to a determination under section 654 because “when section 654 is found to apply, it effectively ‘reduces’ the total sentence otherwise authorized by the jury’s verdict. The rule of Apprendi, however, only applies where the nonjury factual determination increases the maximum penalty beyond the statutory range authorized by the jury’s verdict.” (People v. Cleveland (2001) 87 Cal.App.4th 263, 270; People v. Solis (2001) 90 Cal.App.4th 1002, 1022.)
Section 654 provides: “(a) 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.” [¶] (b) Notwithstanding subdivision (a), a defendant sentenced pursuant to subdivision (a) shall not be granted probation if any of the provisions that would otherwise apply to the defendant prohibits the granting of probation.”
Next, defendant argues the trial court could not rely on the fact he had served four prior prison terms to impose full consecutive sentences because when he admitted the prior prison terms he was advised that each prior term would add one additional year to his sentence; he was not advised that the prior prison terms could be used to impose full consecutive sentences in lieu of the one additional year for each prison term.
We have demonstrated in our discussion regarding the upper term why this argument is not a winning one. Defendant has not shown that his prior convictions and prior prison terms were anything other than ordinary, such that he would not have made his admissions if he had been told about their use in imposing consecutive sentences.
III. Dual Use of Facts
Defendant attacks the imposition of full consecutive sentences, claiming there was a dual use of facts because the court used the circumstances of the crime to both impose the aggravated term and the full consecutive term. A trial court may not use the same fact to impose a full consecutive sentence under section 667.6 and to impose the upper term. (People v. Osband (1996) 13 Cal.4th 622, 728.) The trial court erred when it used the circumstances of the crime to both impose the aggravated term and the full consecutive term.
IV. Remedy for Sentencing Errors
Although the trial court erred when it used the circumstances of the crime to both impose the aggravated term and the full consecutive term and used defendant’s prior criminal record to impose consecutive sentences rather than to impose the aggravated terms, we find any error was harmless. Defendant’s prior criminal history was established by means that satisfy Sixth Amendment requirements and thus made him eligible for the upper term. The circumstances of the crime relied on by the trial court are not contested on appeal and were numerous. In addition, there were no circumstances in mitigation and the trial court utilized very strong language in imposing the aggravated terms and the consecutive sentences--finding the circumstances in aggravation “greatly outweigh” any in mitigation, and finding that “consecutive sentencing is not only appropriate but demanded.” If we were to remand this case to the trial court for resentencing, we are confident the trial court would impose the identical sentence it originally imposed by aligning the numerous available factors in their proper fashion. “On the record before us it cannot be said that a result more favorable to appellant is reasonably probable on remand.” (People v. Barker (1986) 182 Cal.App.3d 921, 941.)
IV. Imposition of a Security Fee
The offenses in this case occurred in January of 1996. Defendant was sentenced in April of 2006. The court imposed a $20 court security assessment fee pursuant to section 1465.8, subdivision (a)(1). This statute was enacted and effective in 2003.
Defendant contends this statute does not apply to offenses committed before the effective date of the statute authorizing such fees and imposition of the fee was unauthorized.
The court security fee mandated by section 1465.8 may be imposed retroactively on a defendant who committed his crime before the effective date of the statute. (People v. Alford (Dec. 3, 2007, S142508) ___ Cal.4th ____.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: WISEMAN, J., CORNELL, J.