Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Superior Court County of Ventura No. 2003034297 Kevin J. McGee, Judge.
Ralph H. Goldsen, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Mary J. Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Robert F. Katz, Supervising Deputy Attorney General, Lauren E. Dana, Deputy Attorney General, for Plaintiff and Respondent.
OPINION ON REMAND
GILBERT, P.J.
In our prior opinion filed February 27, 2007, we remanded the matter for resentencing in light of Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham), and affirmed the judgment in all other respects. Our Supreme Court granted review. On September 12, 2007, it transferred the matter to this Court with directions to vacate our prior decision 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 (Sandoval). As directed, we have reconsidered the matter and reviewed the parties' supplemental briefs on the sentencing issue. We issue a new opinion.
Ulrick K. White appeals a judgment following his conviction, after trial by jury, of forcible rape (Pen. Code, § 261, subd. (a)(2)) and false imprisonment (§ 236). We conclude, among other things, that the trial court did not err by admitting a tape recording of a 911 call, but it erred by imposing the upper term for the rape conviction by relying on sentencing factors which were not tried by a jury. (Cunningham, supra, 549 U.S. __ [127 S.Ct. 856; 166 L.Ed.2d 856].) We vacate the sentence and remand for resentencing. In all other respects, the judgment is affirmed.
All statutory references are to the Penal Code unless otherwise stated.
FACTS
Nancy C. went to the Bombay bar in Ventura, consumed alcoholic beverages and became intoxicated. She started to dance by herself. White, who was also dancing, approached her and briefly talked with her. Later, Nancy left the bar by herself and walked out to the street. White drove by in a mini-van and offered her a ride.
Nancy entered the van. She wanted White to drive her home. She became uneasy when White told her, "We will just hang out and I'll drive you home afterwards." She asked him several times to let her out of the vehicle, but he told her to "shut up." She tried to jump out of the van, but White grabbed her arm and prevented her from leaving.
Nancy pulled out her cell phone and dialed 911, believing that the police would be able to track her location. White drove her to a dark, secluded area and stopped the vehicle. He put his hands "all over" her, and then choked her. He told her to disrobe, using the phrase "take it off," and then he pulled off her shorts and raped her.
Nancy testified that after the attack White "drove [her] to where [she] wanted to go." She was afraid he would not let her out of the van, so she told him she liked him "to appease him," and gave him her cell phone number after he requested it.
The 911 Tape
The prosecution sought to introduce the tape of the 911 call Nancy made. White objected on the grounds that it was unduly prejudicial (Evid. Code, § 352) and would lead to speculation by the jury because much of the tape was inaudible. The trial court overruled the objection. The entire tape was played for the jury.
On the tape, Nancy can be heard saying to White, "Please stop the car . . . . I have to get out . . . . Stop. Please." White responds, "No." The tape contains many inaudible sounds and unintelligible responses. As the tape proceeds, Nancy can be heard saying, "What are you doing?" White responds, "Shut the hell up." She asks White, "Listen . . . do you have a wife? Before you break my neck." White responds, "No, take it off. Take this off." He then repeats the "take it off" phrase several times.
After several inaudible responses on the tape, Nancy can be heard saying, "Can you stop, please. Please, please, please. Help." White responds, "Shut the fuck up." As the tape goes on Nancy can be heard saying, "Ow, ow, ow, ow, you're hurting me." White says, "Open up." Nancy says, "You raped me. You raped me." White answers, "I guess, I did." A short time later, Nancy says, "You stuck your dick inside me and I told you no. I told you no. You raped me. You're a rapist." White replies, "I'm not a rapist."
The Pretext Call
Nancy reported the incident to the police. Police Officer Russell Robinson suggested that Nancy make a recorded "pretext call" to White. In that telephone conversation, Nancy asked White, "[Y]ou say we could still have contact but I mean how do I know that I won't see [you] and you'll choke me again?" White responded, "Honey, that's . . . a risk we all take, you know, and that's what life is about . . . it's risk and challenges." Nancy asked, "Okay, so . . . there's no telling that you won't rape me and you won't choke me again?" White said, "I could sit here and I could tell you, I could sweet talk you, sugar coat, do all the fine, sweet things you may want me to say to make you feel comfy and secured . . . but that doesn't mean . . . it's the truth." At the end of his response, White added, "For you to feel comfortable . . . around me . . . you're gonna have to see me . . . . [T]hat's the only way it's gonna work . . . telling you this . . . and the other is just wasting my time and yours. You know, it's a part of life, it's a risk you take."
Later in this phone conversation, Nancy said, "[W]hen somebody says no, it means no." White responded, "Okay. You know what? I've been there before in situations like that. On the contrary for a man, we-we, I guess we react differently towards it."
White's Statements to the Police
After his arrest, White agreed to speak with Officer Robinson. White said he and Nancy had consensual sex and she never used the word "no" to any sexual activity. Robinson said that Nancy stated that she told White "no" repeatedly and he had sex with her against her will. White responded, "[I]t's all lies."
The Defense Case
Jean Matthews, a sexual assault nurse, testified that Nancy came to the hospital and said she had been sexually assaulted and choked. Matthews took oral swabs and blood and urine samples from Nancy's body. Nancy refused to have a genital examination, which is unusual for a sexual assault victim. Matthews said she appeared to be tired and it was 4:40 a.m. Nancy, however, cooperated in giving her medical history, signing medical release forms and answered questions about the attack.
Dennis Peet, a prosecution investigator, testified that he interviewed Nancy on prior occasions about this incident. But during a trial preparation session, Nancy provided new details which she had not mentioned in the earlier interviews. At that session, Nancy revealed to Peet that White had allowed her to get out of the car to urinate. She said she tried to run away, but White caught her and "took her back to the car."
White offered no evidence.
Sentencing
The court sentenced White to the upper term of eight years for forcible rape. It found as factors in aggravation that White had choked Nancy and she was a "particularly vulnerable" victim. She was inebriated and White took her to a secluded location. It was a "crime of opportunity" and White lacked any "appreciation or awareness . . . for what he did in this case." The court imposed the midterm of two years for false imprisonment and stayed that sentence pursuant to section 654.
DISCUSSION
I. Admitting the 911 Tape
White contends the court erred by admitting the 911 tape because most of it is "inaudible or unintelligible." We disagree.
"'"To be admissible, tape recordings need not be completely intelligible for the entire conversation as long as enough is intelligible to be relevant without creating an inference of speculation or unfairness." [Citations.]'" (People v. Polk (1996) 47 Cal.App.4th 944, 952.) "[A] partially unintelligible tape is admissible unless the audible portions of the tape are so incomplete the tape's relevance is destroyed. [Citations.]" (Ibid.) Here the audible portions of the tape were relevant as evidence Nancy was raped. The tape corroborated the prosecution's case. It also became relevant to impeach White's claim that he had consensual sex with Nancy. That there are inaudible portions, does not require exclusion of the tape where a witness testifies to explain the events on the tape. (Id. at p. 953.) Here Nancy testified and the jury was in a position to judge the credibility of her statements in court and on the tape.
White claims that the admission of the entire tape was unduly prejudicial to him. We disagree. The defense position was that the tape established reasonable doubt. White's trial counsel asked the jury to listen to the entire tape because he claimed it impeached Nancy's testimony about having been choked and raped. He said, "If you listen to the 9-1-1 tape in its entirety . . . you will hear nothing . . . that is consistent with somebody who has been choked . . . ." He also told the jurors, "No sex can be identified as happening on that 9-1-1 tape. Please listen to the tape carefully."
Here both the prosecution and the defense used portions of the tape to ask jurors to draw inferences favorable to their positions. The prosecution relied on White's initial answer to Nancy's statement, "You raped me," where he responded, "I guess, I did." But White's counsel referred the jury to a remark he made shortly thereafter where he said, "I'm not a rapist."
Moreover, given the strength of the prosecution's case, White is not able to show that an erroneous admission of the 911 tape constitutes reversible error. The prosecution's evidence against White was compelling. The jury could reasonably infer from White's statements in the pretext call that he did not deny that he had raped and choked Nancy. He incriminated himself when he callously told her that he did not have to respect her right to say "no" to sex and that going out with him involved "a risk." His false statements to the police showed his consciousness of guilt and impeached his claim that they had consensual sex.
II. Cunningham
White contends the trial court committed reversible error by imposing an upper term of eight years for forcible rape by relying on aggravating sentencing factors which were not tried by a jury. When the sentence was imposed in this case, California law provided that the presumptive sentence was the middle term. White therefore had the right to have a jury decide the aggravating sentencing factors before the trial court could impose an upper term sentence. (Cunningham, supra, 549 U.S.___, [127 S.Ct. 856; 166 L.Ed.2d 856].) There are two exceptions to this rule. "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. [Citation.] Second, the right to a jury trial and the requirement of proof beyond a reasonable doubt do not apply to the aggravating fact of a prior conviction. [Citations.]" (Sandoval, supra, 41 Cal.4th at pp. 836-837.)
Here these two exceptions do not apply. White did not stipulate to facts which could be used as aggravating sentencing factors. Moreover, the trial court found he did not have a criminal history to support an aggravating sentencing factor. It said, "This is his first conviction."
The Attorney General contends that any error in imposing the upper term is harmless. Trial court error is harmless where, "the jury . . . unquestionably would have found true at least a single aggravating circumstance had it been submitted" to it. (Sandoval, supra, 41 Cal.4th at p. 839.) The "imposition of an upper term sentence [does] not violate [a] defendant's right to a jury trial [where] 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 pp. 805-806.)
Here the trial court stated that White choked Nancy. But the jury never made a finding on this issue. Nor did it find that White inflicted great bodily injury. As White correctly notes, it is speculation as to what the jury would have done had they been requested to make a finding on whether this forcible rape involved an aggravated sentencing circumstance. Aggravated means, "distinctly worse than ordinary." (People v. Moreno (1982) 128 Cal.App.3d 103, 110.) But here "ordinary" refers to forcible rapes. Every crime in this category involves force and is reprehensible. Moreover, from the trial court's findings, it is not clear whether the court felt that this factor, by itself, was sufficient to support an upper term.
The court relied heavily on several additional aggravating factors involving issues which juries do not usually decide. For example, it said that Nancy was a particularly vulnerable victim. But this sentencing factor involves a conclusion based on "an imprecise quantitative or comparative evaluation of the facts." (Sandoval, supra, 41 Cal.4th at p. 840.) It was "not part of the charge" and the court's finding was not derived from any finding by the jury. (Id. at p. 839.) The court said that this was a crime of opportunity. But the jury did not make a finding on this factor and the phrase, "crime of opportunity," is not a finding of fact. It is a conclusion. It is also a phrase which could have multiple meanings and be vague to reasonable jurors. The court said White lacked any "appreciation or awareness . . . for what he did in this case." But this involves a subjective determination about White's state of mind, which was not derived from any express jury finding. Moreover, in making this finding the court relied, in part, on the probation report, something the jury would never see.
Where aggravating circumstances rest on "somewhat vague or subjective standard[s], it may be difficult for a reviewing court to conclude with confidence that, had the issue been submitted to the jury, the jury would have assessed the facts in the same manner as did the trial court." (Sandoval, supra, 41 Cal.4th at p. 840.) That is the case here. Moreover, White did not testify and we "cannot necessarily assume that the record reflects all of the evidence that would have been presented had aggravating circumstances been submitted to the jury." (Id. at p. 839) We therefore cannot not conclude from this record that the sentencing error was harmless beyond a reasonable doubt.
White contends that we should remand this matter for resentencing with instructions that the trial court must hold a jury trial on all aggravating sentencing factors. But our Supreme Court has rejected this claim. It noted that California sentencing procedures have been revised. Consequently, it has held that trial courts on remand now have discretion to decide whether to impose a lower, middle or upper term. (Sandoval, supra, 41 Cal.4th at p. 832.)
The sentence is vacated and the matter is remanded for resentencing. In all other respects, the judgment is affirmed.
We concur: YEGAN, J., PERREN, J.