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finding that a person can be convicted of burglarizing their own home if there has been estrangement and spousal abuse and the victim inside fears for their safety
Summary of this case from Ward v. McDowellOpinion
No. C051108.
January 22, 2008. [CERTIFIED FOR PARTIAL PUBLICATION] ]
Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for publication with the exception of parts I, II, III, IV, and VI.
Appeal from the Superior Court of San Joaquin County, No. SF090928A, Cinda Sanchez Fox, Judge.
Diane Berley, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, and Michael Dolida, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
In January 2004, defendant Andrew Wright Gill and his wife T.G. were having marital problems. T.G. gave defendant until the end of the month to find a job and get help for his depression. On the morning of January 31, 2004, T.G. told defendant to leave the house. Defendant left but returned to break into the house and threaten, assault, sexually abuse and kidnap T.G.
A jury convicted defendant of 10 felonies: kidnapping to commit spousal rape, rape by a foreign object and forcible oral copulation (Pen. Code, § 209, subd.(b)(1) — count 1); spousal rape (§ 262, subd. (a)(1) — count 2); rape by a foreign object (§ 289, subd. (a)(1) — counts 3 4); forcible oral copulation (§ 288a, subd. (c)(2) — count 5); making criminal threats (§ 422 — count 6); attempted rape by a foreign object (§§ 664 289, subd. (a) — count 7); infliction of corporal injury on a spouse (§ 273.5, subd. (a) — count 8); cutting a utility line (§ 591 — count 9); and residential burglary (§ 459 — count 10). The jury also found true four special allegations relating to the sex crimes (§§ 667.61, subds. (a), (d)(2), (4), (e)(1), (6), 667.8, subd. (a).) The court sentenced defendant to an aggregate term of 64 years eight months to life, including the upper term of eight years in count 3.
Hereafter, undesignated statutory references are to the Penal Code.
Defendant makes six arguments on appeal: (1) the court violated his constitutional rights by denying his motion to disqualify the district attorney's office; (2) the court erred in admitting the statements he made to police; (3) the court erred in admitting evidence of prior acts of domestic abuse against T.G.; (4) the court erred in rejecting his claim of prosecutorial misconduct; (5) the court erred in sentencing him to the upper term in count 3; and (6) the evidence was insufficient to support his conviction for residential burglary in count 10. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Mark Gantt had lived next door to the Gills for several years and saw them every day or so. On the morning of January 31, 2004, he met defendant for breakfast at Denny's restaurant around 9:00 a.m. Defendant was "very agitated" and told Gantt that T.G. would not let him back in the house. Gantt tried to calm defendant and advised him to stay away from the house to avoid causing more problems.Gantt met defendant later that morning at Home Depot at T.G.'s request. T.G. had given Gantt a suitcase, $50 and a note to deliver to defendant. The gist of the note was "get a job, be accountable, and talk to me." Gantt collected a set of house keys from defendant and returned them to T.G.
Between noon and 1:00 p.m., Gantt observed that defendant had parked his car in front of the house. Gantt spoke with T.G. on the phone. She told him that she was afraid of what defendant might do. Gantt went outside and spoke with defendant for 15 or 20 minutes. According to Gantt, defendant was very upset. Gantt spoke with defendant a second time an hour later, describing defendant as "very, very upset."
At that point, Gantt advised T.G. to call the police and called the police himself. The police officers arrived around 4:00 p.m. and spoke with both defendant and T.G. T.G. asked for an emergency protective order, but the request was denied. The officers suggested to defendant and T.G. that one of them leave in order to avoid any further problems. Defendant responded that it was unfair for him to leave. He told the officers that he intended to wait in his car until T.G. allowed him back into the house.
Defendant telephoned his house around dinnertime in an attempt to resolve things with T.G., but she did not answer. Defendant left a message indicating that, "there was going to be trouble" if T.G. did not speak to him.
Gantt met with defendant in front of the house for a third time later that evening. He urged defendant to leave, but gave him a blanket in case he decided to stay. Defendant indicated that he planned to stay at a friend's house. Gantt checked around 11:00 p.m. and defendant's car was gone.
The Assault and Kidnap of T.G.
Just after 1:00 a.m., T.G. heard a loud bang on the front door. She ran to the room of her 10-year-old son D.G. to look out the front of the house. T.G. ran back to her bedroom and heard another loud crash that sounded like glass breaking. She tried to telephone Gantt but the line was dead.
T.G.'s account of the events is taken from her trial testimony, her interview with police detectives on February 1, 2004, and her interview with the deputy district attorneys on February 10, 2004.
A few seconds later, defendant walked into the bedroom, turned on the lights, and said, "[S]urprise." T.G. testified that defendant was "really angry," cursing and calling her a "f---ing bitch." Defendant grabbed T.G. by the hair and slapped her across the mouth. He hit her again when she tried to get a Kleenex to wipe her bloody lip. Defendant pulled T.G. around the room by her hair and kicked her in the side when she fell to the ground. He dragged T.G. to a futon couch near the window and told her that she had "made the biggest mistake of [her] life," and was going to "pay tonight," and was going to "die tonight."
T.G. testified that it was like defendant had "snapped" and it was not the first time it had happened. She could recall three incidents where he yelled and hit her.
Defendant dragged T.G. from the bedroom to the garage. Once there, defendant forced T.G. to lie facedown on the floor and take off all of her clothes. He put a rag in T.G.'s mouth and taped it in place by wrapping duct tape around her head. Defendant threatened to cut off T.G.'s right arm with a chainsaw.
Defendant proceeded to sexually abuse T.G. in the garage. First, defendant put his fist up her vagina. He then inserted a flashlight in T.G.'s vagina and tried to insert it in her anus. Next, defendant raped T.G. by inserting his penis in her vagina, but he stopped before ejaculating.
Defendant took T.G. back into the house and continued to threaten T.G., stating, "You're going to pay for what you did to me," and "You're dying tonight." Defendant asked T.G. if she wanted to say goodbye to anyone.
Defendant put T.G. in the backseat of the family car, facedown, completely naked. He bound her feet together at the ankles and tied her feet to her wrists with rope. Defendant drove toward Sacramento.
Eventually, defendant reached back and removed the duct tape from T.G.'s head and the gag from her mouth, tearing out pieces of hair in the process. As they got closer to a snowy area, defendant pulled off the road and got in the backseat with T.G. He forced her to orally copulate him. He ejaculated in T.G.'s mouth and told her to swallow it. T.G. cooperated because she was "scared to death for [her] life." At that point, defendant allowed T.G. to get dressed and join him in the front seat of the car. However, he tied her hands and feet together to prevent her from doing "something stupid up front."
Now that T.G. was sitting upright in the seat, she saw that they were close to Lake Tahoe. It was after 5:00 a.m. As they drove toward Emerald Bay, defendant said, "I'm obviously going to have to end my life today." He told T.G. that she would have to give something up, like a finger or a hand, so that she would "always remember what [she had done] to [defendant]." When they reached an area called Sugar Pine Camp, defendant parked the car and unsuccessfully tried to kill himself with a hunting bow.
Around daylight, defendant drove out of the campground to a small market. He left T.G. in the car while he bought a pack of disposable razors and a banana and bottle of water for T.G. Defendant told T.G. that he was going to take her home, but changed his mind and drove back to the campground. He said, "I can't go home, I'll go to jail . . . there's a warrant for me, I can't wait for that."
Defendant and T.G. sat in the campground while defendant tried to kill himself with a disposable razor. He also placed a plastic bag over his head. These attempts at suicide also failed. According to T.G., defendant appeared to realize that he did not want to kill himself. He started toward home again and T.G. encouraged him. As they were driving, defendant cried and apologized to T.G. for causing her so much pain over the years.
Defendant Turns Himself In
Back in Stockton, D.G., one of defendant and T.G.'s sons, knocked at Gantt's door between 7:30 and 8:00 a.m. He told Gantt that his mother was gone. Gantt and his adult son hurried to the Gill residence. Finding parts of the house in disarray, signs of forced entry, the family car missing, the outside telephone jack removed, and defendant's car parked around the corner, Gantt and his son called the police.
Detective Robert Molthen questioned the children, D.G. and C.G., about what had happened the night before. D.G. told Molthen that he had heard a commotion or arguing in the middle of the night. During the interview with D.G., Molthen also learned about a prior incident of abuse. D.G. told the detective that when he was five, he had seen defendant push T.G. onto a couch and throw things at her.
Defendant phoned home while Detective Molthen was at the Gill residence. Molthen told defendant to go to the nearest police station. Defendant allowed Molthen to speak with T.G. Molthen asked T.G. if she was okay and she responded, "I don't think so." Molthen then asked T.G. if she was being held against her will, and she said, "[N]o."
A few minutes later, defendant arrived at the police station in Jackson. Defendant was still talking with Detective Molthen on the cell phone when he told Jackson Police Officer Curt Campbell that the Stockton police were looking for him. Molthen talked with Campbell on defendant's cell phone and told Campbell to detain defendant and T.G. Molthen, his partner Detective Eduardo Rodriguez, and two other officers headed for Jackson.
Meanwhile, Officer Campbell instructed defendant to sit on a bench outside the police station. Campbell noticed fresh and dried blood on defendant's neck. When he asked defendant how the injury occurred, defendant did not respond. Campbell also spoke with T.G., who was sitting in the front passenger seat of the car. T.G. told Campbell that defendant cut his neck with the blade from a Bic razor. Campbell also noticed that T.G. had a bloody lip. T.G. told him that defendant had hit her. Campbell retrieved a plastic bag from the car that contained the razor blade and duct tape with brown hair attached to it. Paramedics arrived and began to treat defendant's and T.G.'s injuries. T.G. stated to the paramedics or Campbell that defendant had raped her.
After the Stockton police officers arrived in Jackson, Campbell gave the plastic bag to Detective Mark Reynolds. The bag contained a 12-foot length of rope in addition to the razor blade and duct tape. Reynolds and another officer transported defendant back to Stockton in their car. They did not question defendant during that trip.
T.G.'s Pretrial Statements
Detective Molthen interviewed T.G. for approximately 30 minutes in the backseat of his police car before they left Jackson. He and Detective Rodriguez continued to interview her during the drive from Jackson to the emergency room at San Joaquin County General Hospital in Stockton.
At the hospital, Rodriguez went through the adult/adolescent sexual assault examination questionnaire with T.G., writing down her responses. At no time did T.G. indicate that she had consented to the sexual acts she listed on the form. Under the section marked "assault history," T.G. indicated that she had been assaulted that day by defendant. In the section marked "methods employed by assailants," T.G. indicated that defendant had: (1) used a flashlight as a weapon during the sexual assault; (2) threatened to kill her; (3) punched and kicked her; (4) grabbed, held, and pinched her; (5) physically restrained her with tape; and (6) caused her injuries including a fat lip, a bruised left arm, a bruised right knee, a bruised left eye and overall body pain. In the section of the form marked "acts described by patient," T.G. responded that defendant had penetrated her vagina with his penis, his finger and a flashlight. She also stated that defendant had tried to penetrate her anus with the flashlight. T.G. responded that she had orally copulated defendant and he had ejaculated in her mouth.
Later in the evening, T.G. met for five hours with Susan Sixkiller, a victim advocate with the San Joaquin County District Attorney's Office. T.G. told Sixkiller that defendant had abducted her from the house the night before, thrown her into a car, and raped her. T.G. never stated or implied that the acts were committed with her consent. She also told Sixkiller that defendant had bound her with duct tape around her wrists, head and hair. T.G. described defendant as having a glazed-over, evil look in his eyes that she had never seen before.
Ten days after the incident, T.G. spoke with Deputy District Attorney Michael Mulvihill about the case. T.G. agreed to a taped interview although she was under no obligation to do so. T.G. told Mulvihill that defendant had started abusing her physically in March 1993, a month after they were married. At no time during the interview did T.G. tell Mulvihill that she had consented to any of the sexual acts that occurred on the morning of February 1, 2004.
Defendant's Pretrial Statements
After they returned from the hospital, Detectives Molthen and Rodriguez interviewed defendant at the police station. At the start of the interview, defendant told the detectives that they could ask him any question they wanted, but he was "not going to be very forthcoming." He admitted that he "flipped out" when T.G. asked him to leave the house and that he "did her wrong." However, defendant stated multiple times that it was unfair for her to kick him out of the house. Defendant indicated that he had wanted to resolve things with T.G. that night and "couldn't handle it" when she stopped answering the telephone.
Defendant stated that he would not talk about the specifics of what happened because he did not want "to put it together" for the police. Defendant told Molthen and Rodriguez that he "left a really wide trail" that night and admitted that he "was one hundred percent wrong." He continued, "[Y]ou guys got the story and anything I add to it is just going to screw me even more." Later, defendant added, "The whole picture is there, you know it as well as I do."
The detectives continued to question defendant about specifics. When Rodriguez suggested that defendant's silence about the details of what happened might cause people to think that he was trying to get away with his crimes, defendant responded that he would "be happy to corroborate [T.G.'s] deposition so that the kids [would not] have to participate." Defendant told Molthen and Rodriguez that "[T.G.] [was] an honest person . . . and uh . . . she gives it straight up."
Eventually, defendant described details of the events of the night before. He told the detectives about: (1) parking his car down the street from the house so that T.G. and the neighbors would not know he was there; (2) borrowing a screwdriver from a friend's house so that he could open the telephone box; (3) disconnecting the telephone and calling from a nearby pay phone to make sure the line was dead; (4) returning to the house and trying to break down the front door; (5) removing the screen and entering through a window on the side of the house; (6) screaming at T.G., saying "this is what [you] get;" (7) pushing T.G. around and hitting her in the bedroom; (8) dragging T.G. by her arm or hair into the garage; (9) tying her up; (10) forcing her to have sex and sticking the flashlight into her vagina; (11) threatening to cut off her body parts; (12) putting a gag in her mouth; (13) using the computer while T.G. lay facedown on the carpet; (14) putting T.G. facedown in the backseat of the car, hog-tying her, and driving away to get out of the county; and (15) having T.G. orally copulate him. At the end of the interview, defendant stated, "I've been honest with you, straight up." He was comfortable with the fact that he had corroborated T.G.'s description of what had happened.
Defendant's Testimony
At trial defendant testified that he never forced T.G. to have sex against her will. He explained that he and T.G. "had an agreement that [they] would try anything." According to defendant, they trusted each other not to hurt the other and if T.G. ever said "uh-uh" or "stop," defendant would immediately stop what he was doing. Defendant testified that the sex acts that occurred on February 1, 2004, were "the same sexual things" that they had "always done." He stated that he and T.G. often inserted objects into each other, took joy rides, had sex in different places, ripped clothes off each other, and had sex out in the warm sun. Defendant testified that they engaged in acts of bondage in the garage and the rope found in the Volvo was purchased for that purpose.
Defendant acknowledged that he was angry and yelled at T.G. when he found her trying to make a phone call from their bedroom early on the morning of February 1, 2004. He cried after striking her and they exchanged "forgiveness." Defendant testified that while he and T.G. were talking, she started touching him in a sexual manner. According to defendant, they went to the garage to engage in a typical sexual game. Defendant stated that T.G. did a striptease for him, and consented to being gagged and tied up. He maintained that she consented to the subsequent sexual acts and to leaving the house with him for a "joy ride."
When questioned about his statements to police, defendant testified that he "just told [the detectives] what they wanted to hear" because he was frustrated, tired, hungry, and "just wanted it to be over." He denied coercing T.G. into testifying in a certain way.
T.G.'s Testimony
T.G. testified for the defense, stating that defendant did not force her to go anywhere with him, did not force her to have sex against her will, and did not threaten her in any way on February 1, 2004.
DISCUSSION I. Defendant's Motion To Recuse The District Attorney's Office Was Properly Denied
Before trial, defendant moved to disqualify the entire San Joaquin County District Attorney's Office from prosecuting his case and to appoint the Attorney General to assume prosecutorial duties in its stead. Defendant argued that two deputy district attorneys — Michael Mulvihill and Kristine Reed — "ha[d] taken a personal interest in the case and ha[d] made a concerted effort to influence the testimony of the alleged victim." Defendant maintained that after T.G. informed them that she consented to the acts charged, Mulvihill and Reed "responded . . . by threatening her, demeaning defense counsel and making other inappropriate statements." Citing this conduct, defendant asserted that a conflict of interest existed which made it unlikely "that [he would] receive a fair trial." The court denied the motion. On appeal, defendant contends that "Deputy District Attorneys Mulvihill and Reed conducted a pretrial interview of [T.G.] in which she was misled as to what was in her best interests and that of her family, resulting in a conflict of interest that makes it unlikely that [defendant] received a fair trial." There is no merit in defendant's contention.
Defendant acknowledges that although he sought recusal of the entire San Joaquin County District Attorney's Office in his motion in the trial court, his argument on appeal "focuses on the actions of the two deputies and compels the conclusion that they should have been recused from the case, requiring reversal.
A. T.G.'s Pretrial Interview At The District Attorney's Office:Defendant's claim of conflict arises from Mulvihill's and Reed's meeting with T.G. and her father at the district attorney's offices on February 10, 2004. Mulvihill testified that he spoke with T.G. informally before he and Reed conducted the recorded interview that the prosecution played for the jury at trial. Mulvihill stated at the start of the recorded interview, "[W]e talked for about an hour with you and your dad downstairs, just about, not about the facts or anything right? We were just talking about general. . . . [¶] . . . [¶] [p]rocedures and what's going on in the case right now. It's my understanding that you're up here today of your own free will and you don't . . . you [sic] freely volunteering to talk to . . . us. We're not forcing you to, is that right?" T.G. responded, "That's correct." Defendant filed T.G.'s handwritten notes about the informal meeting as an exhibit in support of his motion to disqualify. T.G.'s notes read: "*I was advised not to speak with the public defender "*I was told public defender may show up at my door calling himself PD — I need to be careful "*I was told the public defender will `twist my words' in court "*I was told I had no rights as [defendant's] wife to do anything regarding this case "*I was told that I had better hope that [defendant] takes the D.A.'s first offer because they would just keep adding time if he did not "*I stated that I do not want our boys [D.G. and C.G.] to be put on the [witness] stand — Mr. Mulvihill told me that if they had to, they woulddouble [defendant's] time "*I stated I did not want the [criminal protective order]" Mulvihill also prepared a memorandum of his informal meeting with T.G. and her father on February 10, 2004, which differed from T.G.'s account. Mulvihill indicated that he "explained the criminal procedure process (arraignment, preliminary hearing, arraignment on the Information, pre-trial conference, readiness conference and trial)." He also "explained [their] offers and how they are arrived at and how they go up usually after each appearance." After T.G. stated she wanted to help defendant, Mulvihill spoke at length emphasizing that it was the District Attorney's Office, and not her, that filed charges against defendant, but they wanted to hear whatever she had to say. Mulvihill testified that he told T.G. that "she [had] the right to speak with and not speak with whoever [sic] she [wanted]," and that his office was "only interested in the truth." He told her that she could talk to the defense attorney or his investigator but did not have to talk with them. Mulvihill "informed her they have different interests and in [his] experience often twist the statements of witnesses to suit their needs." However, Mulvihill assured T.G. that he would not hold it against her if she chose to speak with the defense team. When T.G. asked that the criminal protective order be lifted, Mulvihill explained his opposition. He also informed T.G. that she could attend at the next court appearance and explain her position to the judge. Section 1424 governs motions to disqualify the prosecution, and states in pertinent part that, "[t]he motion may not be granted unless the evidence shows that a conflict of interest exists that would render it unlikely that the defendant would receive a fair trial." (§ 1424, subd. (a)(1).) The statute replaces the earlier rule announced in People v. Superior Court (Greer) (1977) 19 Cal.3d 255, 266, 267, 269, which authorized recusal based on the mere appearance of conflict. ( People v. Breaux (1991) 1 Cal.4th 281, 294; People v. Lopez (1984) 155 Cal.App.3d 813, 824.) Section 1424 differs from the rule in Greer "in that it does not specify whether the disqualifying conflict must be `actual' or `apparent' but requires that it be `of such gravity as to render it unlikely that defendant will receive a fair trial unless recusal is ordered.'" ( Millsap v. Superior Court (1999) 70 Cal.App.4th 196, 199 ( Millsap), quoting People v. Conner (1983) 34 Cal.3d 141, 147 ( Conner).) In other words, section 1424 "does not allow disqualification because participation of the prosecutor would be unseemly, appear improper, or even reduce public confidence in the criminal justice system. An actual likelihood of prejudice to defendant must be shown. [Citation.]" ( Millsap, supra, at p. 200.) To prevail in a motion to disqualify the prosecution, defendant must satisfy a two-part test: (1) whether a conflict of interest exists; and (2) whether the conflict is "so grave as to render it unlikely that defendant will receive fair treatment. [Citation.]" ( People v. Eubanks (1996) 14 Cal.4th 580, 594 ( Eubanks).) The burden of persuasion is on the party seeking recusal. (See People v. Hamilton (1988) 46 Cal.3d 123, 140.) "Our review involves both the substantial evidence test and examination for abuse of discretion. Factual issues are resolved under the substantial evidence test: whether there is substantial evidence to support factual determinations reached by the trial court. [Citations.] Once the pertinent factual issues are settled, the question whether the trial court's ruling should be upheld is determined under the deferential abuse of discretion test. [Citations.]" ( Millsap, supra, 70 Cal.App.4th at p. 200.) B. Analysis: Here, the trial court made no findings on questions of evidentiary fact — that is, whether there was a conflict of interest and whether defendant was unlikely to receive a fair trial. ( Eubanks, supra, 14 Cal.4th at p. 594.) The accounts offered by T.G. and Mulvihill differed in the details of what was said in their informal meeting. We will not reweigh the court's implicit determination that defendant failed to sustain his burden of persuasion on the two-part test. Mulvihill's description of the informal meeting with T.G. supports a conclusion that he was simply informing T.G. about the criminal process and did not demonstrate conflict of interest or bias. Accordingly, we conclude the court did not abuse its discretion in denying the motion to disqualify Mulvihill, Reed or the entire San Joaquin County District Attorney's office.
Defendant also separately argues, after the fact, that the manner in which District Attorney Reed questioned him at trial "revealed a deep personal bias against [defendant] that reinforced the fact that the trial court should have disqualified both her and Mulvihill prior to trial." We address this issue post.
II. The Defendant's Statements to Police Were Lawfully Admitted
Defendant argues that the court violated his constitutional rights when it denied his motion to suppress the statements he made to police during the February 1, 2004, interview. Defendant contends that the detectives ignored his multiple invocations of his Miranda rights and used overbearing tactics to extract an involuntary confession. We conclude that the court properly determined that defendant voluntarily waived his Miranda rights.
Miranda v. Arizona (1966) 384 U.S. 436 [ 16 L.Ed.2d 694].
A. Invocation of Miranda Rights Must Be Unambiguous:"`[U]nder the familiar requirements of Miranda, designed to assure protection of the federal Constitution's Fifth Amendment privilege against self-incrimination under "inherently coercive" circumstances, a suspect may not be subjected to custodial interrogation unless he or she knowingly and intelligently has waived the right to remain silent, to the presence of an attorney, and to appointed counsel in the event the suspect is indigent.' [Citation.] `Once having invoked these rights, the accused "is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police."' [Citations.] . . . [¶] If a suspect indicates `in any manner and at any stage of the process,' prior to or during questioning, that he or she wishes to consult with an attorney, the defendant may not be interrogated. [Citations.]" ( People v. Crittenden (1994) 9 Cal.4th 83, 129 ( Crittenden), italics omitted.) The defendant's request for counsel must be unambiguous. ( Davis v. United States (1994) 512 U.S. 452, 459 [ 129 L.Ed.2d 362, 371] ( Davis).) "`[A] statement either is such an assertion of the right to counsel or it is not.' [Citation.] Although a suspect need not `speak with the discrimination of an Oxford don,' [citation], he must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney." ( Ibid.) Thus, in Davis, the United States Supreme Court rejected the defendant's claim that he invoked his right to counsel by saying, an hour and a half into the interview, "Maybe I should talk to a lawyer." ( Id. at pp. 455, 462; see also Crittenden, supra, 9 Cal.4th at pp. 124, 130 ["Did you say I could have a lawyer?" was not an unequivocal request for counsel]; People v. Johnson (1993) 6 Cal.4th 1, 27, 30 ["[M]aybe I ought to talk to my lawyer, you might be bluffing, you might not have enough to charge murder" was not an unequivocal request for counsel].) When reviewing defendant's challenge to the trial court's denial of his motion to suppress on grounds the statements were obtained in violation of Miranda, "we defer to the trial court's resolution of disputed facts, including the credibility of witnesses, if that resolution is supported by substantial evidence. [Citation.] Considering those facts, as found, together with the undisputed facts, we independently determine whether the challenged statement" was unlawfully obtained. ( People v. Gurule (2002) 28 Cal.4th 557, 601.) Here, defendant asserts he invoked his right to remain silent 15 times. In general, these were instances where Rodriguez or Molthen asked defendant a specific question and defendant responded "I can't answer that," or "I really can't say anything about it," or "there's nothing I can say," or "I'm not going to answer that question," or "if you guys can't put it together . . ., I'm not going to put it together for you." In each instance, defendant continued to answer other questions about the events of February 1, 2004. For this reason, the circumstances of this case differ from Michigan v. Mosley (1975) 423 U.S. 96, 103-104 [ 46 L.Ed.2d 313, 322] where defendant declined to answer any questions about the robberies at issue in the case. Defendant acknowledges that his purported invocation of the right to remain silent "may have appeared equivocal at some points." Citing People v. Wash (1993) 6 Cal.4th 215, 238 ( Wash), he maintains that a suspect's invocation of rights "does not have to be unequivocal." But the court in Wash found that similar language — "`I don't know if I wanna talk anymore since it's someone killed, you know'" — was an expression of "uncertainty as to whether he wished to continue." ( Ibid.) After considering the matter, defendant in Wash clearly stated he wished to continue with the interrogation. ( Id. at p. 239.) Here, in February 2005 Judge Van Oss examined the written transcript of defendant's statement line by line and found that "[defendant] never made it clear that he wanted to invoke his rights, or at least not to the point it was clear to the officer anyway. And he never — even where he might have made it clear, even where — I think I mentioned one of these earlier where it looked to me like he probably had invoked his rights, he reinitiated on his own the conversation. It wasn't the police that did it." The court observed that defendant "indicat[ed] a desire" through the interview to "clear this up," while at the same time realizing that "he probably [was] digging a hole for himself." At another point during the interview, defendant stated something to the effect of "I know I'm throwing the Fifth Amendment out the door." The court found that "[t]he clear inference of that [statement was] I am waiving my rights under the Fifth Amendment, and I know I'm guilty so I don't care about that." On independent review, we reach the same conclusion as the trial court. A reasonable police officer would not have understood the cited statements to be invocations of the right to remain silent. ( Davis, supra, 512 U.S. at p. 459 [ 129 L.Ed.2d at p. 371].)
B. A Miranda Waiver and Confession Must Be Voluntary:A Miranda waiver must be knowing, intelligent and voluntary. ( Colorado v. Spring (1987) 479 U.S. 564, 573 [ 93 L.Ed.2d 954, 965].) There are two distinct dimensions to this requirement: "`[F]irst the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the "totality of the circumstances surrounding the interrogation" reveals both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.'" ( Ibid., quoting Moran v. Burbine (1986) 475 U.S. 412, 421 [ 89 L.Ed.2d 410, 421].) Where, as here, defendant challenges his statements as coerced, we view the totality of the circumstances surrounding the statements to determine independently whether the prosecution has met its burden and proved that the statements were voluntary. ( Arizona v. Fulminate (1991) 499 U.S. 279, 285-286 [ 113 L.Ed.2d 302, 315]; People v. Thompson (1990) 50 Cal.3d 134, 166, disapproved on other grounds in Creutz v. Superior Court (1996) 49 Cal.App.4th 822, 829.) In making that determination, we consider factors such as the length of the interrogation, its location, its continuity, and the defendant's sophistication, education, physical condition and emotional state. ( People v. Williams (1997) 16 Cal.4th 635, 660 ( Williams); In re Shawn D. (1993) 20 Cal.App.4th 200, 209.) "[A]ny factual findings by the trial court as to the circumstances surrounding an admission or confession, including `"the characteristics of the accused and the details of the interrogation" [citation],' are subject to review under the deferential substantial evidence standard. [Citation.]" ( Williams, supra, 16 Cal.4th at p. 660.) In this case, two different judges reviewed defendant's interview with law enforcement and both found his statement admissible. After reviewing the written transcript, Judge Van Oss rejected defendant's claim of coercion. He found that "taking the statement in context, there's nothing to indicate that the defendant somehow didn't understand what he was doing. Certainly wasn't in his best interest, and he knew it wasn't in his best interest, but he went ahead and did it anyway because it was his choice. And he had the right to make that choice. . . ." Later, at the start of trial in June 2005, Judge Fox entertained a motion for reconsideration to the extent it involved the review of the videotape of defendant's interrogation. She "was not looking at the content of the statement, because Judge Van Oss ruled on that. But [she] was looking at the tone and tenor, demeanor, and body language, to see if there was anything there that would cause [her] to grant other reconsideration." She cited the length of the interrogation, its location, the continuity, and defendant's physical condition and "did not see any indication that the officers were intimidating the defendant, no indication that he was intimidated. He participated in the interview, at times asking questions on his own." Judge Fox also found nothing in defendant's age, education or level of intelligence that raised any claim of coercion. Based on these findings, which are supported by the evidence, we conclude defendant's statements were voluntary.
III. Evidence of Prior Domestic Abuse Was Lawfully Admitted
The prosecution sought to introduce evidence of prior instances of domestic violence pursuant to Evidence Code section 1101, subdivision (b) and section 1109, subdivision (a)(1). The defense objected. The court admitted evidence of incidents that occurred during defendant's 11-year marriage to T.G., including statements T.G. made to the police detectives on February 1, 2004, to the deputy district attorneys on February 10, 2004, T.G.'s mother's testimony regarding a 1993 incident, and the testimony of D.G. and C.G. about what they witnessed and recalled. Defendant contends that the court deprived him of due process and a fair trial when it admitted evidence of his prior abuse of T.G. We conclude there is no merit in defendant's claim. Evidence Code section 1101, subdivision (a) bars introduction of evidence of a person's character trait "when offered to prove his or her conduct on a specified occasion." At the same time, Evidence Code section 1101, subdivision (b) permits introduction of evidence "that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, . . .) other than his or her disposition to commit such an act." In addition, the Legislature created exceptions to the general rule under Evidence Code section 1101, subdivision (a) for cases involving sexual offenses (Evid. Code, § 1108) and domestic violence (Evid. Code, § 1109). Although Evidence Code sections 1108 and 1109 have survived constitutional challenge (see People v. Falsetta (1999) 21 Cal.4th 903, 922 ( Falsetta); People v. Price (2004) 120 Cal.App.4th 224, 239-240), admission of such evidence is not without limit. Propensity evidence is subject to the court's weighing process under Evidence Code section 352 which "provides a safeguard against undue prejudice." ( People v. Johnson (2000) 77 Cal.App.4th 410, 420.) Prejudice in the context of Evidence Code section 352 means "`evidence that uniquely tends to evoke an emotional bias against a party as an individual, while having only slight probative value with regard to the issues.'" ( People v. Scheid (1997) 16 Cal.4th 1, 19.) In conducting this weighing process, the court must consider the relevance and remoteness of the prior act, the similarity between the prior act and the charged offense, the degree of certainty of its commission, and the likelihood that evidence of the prior act will confuse, mislead, distract or inflame the jury. ( Falsetta, supra, at pp. 916-917; People v. Pierce (2002) 104 Cal.App.4th 893, 900.) We will not disturb the trial court's exercise of discretion under Evidence Code 352 unless the court's decision was arbitrary, capricious or patently absurd. ( People v. Jennings (2000) 81 Cal.App.4th 1301, 1313-1314.) There was no abuse of discretion in this case. The court and counsel reviewed in detail the evidence that the prosecution sought to introduce under Evidence Code section 1109. The court considered and ruled on each incident separately. It admitted T.G.'s statements that: (1) in 1993, on their honeymoon, defendant came back to the cabin drunk and forced T.G. to have sex; (2) in March 1993, a month after the marriage, and from time to time thereafter, defendant grabbed T.G. by the hair; (3) after 1997 and the family moved to Heatherbrook Lane, defendant forced T.G. to have sex; (4) he raped her often, "whenever he felt like it"; (5) in May 2001, defendant threw T.G. to the ground, picked her up, put her over chairs, yelled and hit her; (6) defendant "snapped. He's done this before"; and (7) "he never snapped like that. I, I don't know what that was." In addition, the court admitted T.G.'s mother's testimony about an incident of physical abuse that she witnessed in 1993. T.G.'s mother, Carole Scott, testified at trial about an incident that occurred in July or August 1993, five or six months after T.G.'s marriage to defendant. T.G. had called, asking her mother to come to the condominium she shared with defendant. T.G. was crying and Scott could hear defendant yelling in the background. When Scott arrived a half an hour later, she found T.G., who was three or four months pregnant, crying on the sofa. According to Scott, defendant was "hysterical, stomping all over the place, yelling and screaming." When T.G. started to walk toward the bathroom, defendant approached and shoved her against the wall with both hands. The court also admitted the testimony of D.G. and C.G. regarding what they had witnessed in the past. However, at trial both children denied seeing defendant grab or hit T.G. While reviewing the proffered evidence, the court indicated that, "if the defense was not consent, I would not let any of this stuff in." But given the defense theory, the court found that the evidence was "very probative." The court acknowledged that the statute generally excluded acts that occurred more than 10 years before the charged offense (Evid. Code, § 1109, subd. (e)), but made the required finding that in "the interest of justice" it would admit incidents that had occurred during the 10-year eight-month marriage. The court noted that this was "a concrete time period from which we can mark conduct." At the same time, the court excluded references to defendant being a "sex addict" or a "porn addict," statements that could be viewed as inflammatory, as well as separate incidents where defendant punched a furnace, threw a telephone and tossed a plate of spaghetti, which the court determined fell outside the purview of Evidence Code section 1109. We conclude that the court properly weighed the evidence under Evidence Code 352, taking the relevant factors into consideration.
Evidence Code section 1108, subdivision (a) provides: "In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352."
Evidence Code section 1109, subdivision (a)(1) reads in part: "[I]n a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant's commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352."
Evidence Code section 352 states: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
IV.[fn*] The Prosecutorial Misconduct Allegation Has No Merit
Defendant argues that he is entitled to reversal because Deputy District Attorney Reed committed misconduct when she asked defendant during cross-examination whether he had cursed at her during trial. There was no misconduct. "`The applicable federal and state standards regarding prosecutorial misconduct are well established. "`A prosecutor's . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct "so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process."`" [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves "`"the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury."`" [Citation.]' [Citation.]" ( People v. Hill (1998) 17 Cal.4th 800, 819.) Here the claim of misconduct involves Reed's cross-examination of defendant. In general, the prosecution has broad latitude when cross-examining a defendant. "`When a defendant voluntarily testifies, the district attorney may fully amplify his testimony by inquiring into the facts and circumstances surrounding his assertions, or by introducing evidence through cross-examination which explains or refutes his statements or the inferences which may necessarily be drawn from them. [Citation.] A defendant cannot, by testifying to a state of things contrary to and inconsistent with the evidence of the prosecution, thus indirectly denying the testimony against him, but without testifying expressly with relation to the same facts, limit the cross-examination to the precise facts concerning which he testifies. [Citation.]' [Citation.]" ( People v. Chatman (2006) 38 Cal.4th 344, 382.) Although a prosecutor may not intentionally elicit inadmissible testimony, "merely eliciting evidence is not misconduct." ( Id. at pp. 379-380.) Reed's questions to defendant were relevant and evinced an attempt to impeach defendant's testimony on cross-examination. Moreover, nothing in Reed's questioning was "`"`"so egregious that it infect[ed] the trial with such unfairness as to make the conviction a denial of due process."`" [Citations.]'" ( Hill, supra, 17 Cal.4th at p. 819.) We recount the exchange in its entirety: "Q. [by Reed]: Now, when you spoke with the detectives, you told them that there was a lot of bad stuff that happened that day on February 1st of 2004? "A. [Defendant]: There was. "Q. You — your testimony is that the only thing that was bad was you hitting your wife? "A. No. Cursing and screaming. And saying mean things to her. And hitting her. "Q. All right. "A. We don't allow that in our home, period. "Q. So you don't curse? "A. No. We do not curse in our home. "Q. Do you curse at all? "A. Um, having been incarcerated for a year and a half with criminals, every third word I hear is a curse word. "MS. REED: Objection. Non-responsive. "THE COURT: Sustained. "THE WITNESS: It's pretty hard not to now. "THE COURT: So your answer is yes, you do curse? "THE WITNESS: What's the question? "MS. REED: Q. Whether you curse. "A. Whether I curse now? "Q. Yes. "A. I have used vulgarity, yes, I have used curse words lately. [¶] But no, we don't use curse words at our home. "Q. So since February 1st of 2004, you now curse? "A. A little bit, yeah. Too bad. The environment that you stuck me in. "Q. All right. Haven't you cursed at me numerous times when we have been in court before? "A. I don't recall. "Q. Said things like, `Fuck you,' and, `Bitch,' things like that? "[DEFENSE COUNSEL]: I'm going to object. "THE WITNESS: I don't recall. "[DEFENSE COUNSEL]: Relevance, Judge. "THE COURT: Overruled. "THE WITNESS: Do you have — do you have some evidence? "MS. REED: Objection. "[DEFENSE COUNSEL]: Is Ms. Reed making herself a witness now, judge? "THE WITNESS: Wow. "THE COURT: Wait, wait, wait. Stop. You can answer the question, Mr. Gill. Have you said that? "THE WITNESS: What's the question? "[DEFENSE COUNSEL]: I object. "THE COURT: Why don't you re[-]ask the question. "MS. REED: Q. Since February 1st of 2004, have you cursed? "A. I have already answered that question. "THE COURT: The next question about you. "MS. REED: Q. Have you cursed at me since February 1st? "A. I have already answered that. "THE COURT: No, you didn't. "THE WITNESS: Do you want to do a readback? "THE COURT: No, I don't. "MS. REED: Q. Have you cursed at me since February 1st of 2004? "A. I don't think so, no. [¶] And if you would have heard me curse, it may have been in discussing something else. "Q. No, I'm talking about court proceedings when you've been in custody in Department 25, and you have mouthed the words `fuck you' repeatedly at me during those court proceedings, multiple court proceedings, also the word `bitch.' "A. Do you read lips now? "Q. Sir, I'm asking you whether or not you did that, yes or no? "A. I may have said something. Are you a lip reader now? "THE COURT: Mr. Gill, if you could recall my admonition that the attorneys ask the questions — "THE WITNESS: The words that I said — "THE COURT: — and the witnesses give the answers. "THE WITNESS: I don't know whether I did nor didn't." Based on this record there was no misconduct.
V. Sufficiency of the Evidence to Support Burglary Conviction
Following the preliminary hearing, during trial, and in a motion for new trial, defendant unsuccessfully challenged the sufficiency of the evidence to support the burglary charge to go to the jury, and to sustain the conviction. The court ruled at the hearing on defendant's section 1118.1 motion that there was enough evidence to take the burglary count to the jury. The court explained: "[T]he issue is whether the defendant had an absolute and unconditional right to enter the residence. And it seems to the Court that it's apparent from the defendant's state of mind, from the victim's state of mind and the defendant's, that he did not have an absolute and unconditional right to enter the residence."
On appeal, defendant contends that a man who breaks into his family home after a marital fight is not guilty of residential burglary, and maintains that the court denied him his federal and state constitutional rights to due process and a fair trial by allowing him to be charged and convicted of a "non-offense." However, his argument focuses once again on the sufficiency of the evidence — that based on the facts of this case, he had a right to enter the residence. We conclude the jury properly convicted defendant of burglary.
Section 459 provides in pertinent part: "Every person who enters any house, . . . with intent to commit grand or petit larceny or any felony is guilty of burglary." The statute retains two important aspects of common law burglary: "the entry must invade a possessory right in the building and it must be committed by one who has no right to be in the building. [Citation.] Because the crime of burglary requires the invasion of a possessory right in a building, one cannot be found guilty of burglarizing one's own residence." ( People v. Smith (2006) 142 Cal.App.4th 923, 930 [ 48 Cal.Rptr.3d 378] ( Smith), citing People v. Gauze (1975) 15 Cal.3d 709, 714 [ 125 Cal.Rptr. 773, 542 P.2d 1365] ( Gauze).)
Defendant relies on Gauze, where the defendant had an argument with his roommate away from the apartment they shared, told the roommate to "`Get your gun because I am going to get mine,'" returned to the apartment with a shotgun, and shot the roommate. ( Gauze, supra, 15 Cal.3d at p. 711.) Gauze appealed his conviction of assault with a deadly weapon and burglary. ( Ibid.) The Supreme Court reversed the burglary conviction, concluding that "defendant cannot be guilty of burglarizing his own home. His entry into the apartment, even for a felonious purpose, invaded no possessory right of habitation; only the entry of an intruder could have done so. More importantly, defendant had an absolute right to enter the apartment. . . . It was a personal right that could not be conditioned on the consent of defendant's roommates." ( Id. at p. 714.) The Supreme Court observed that "[i]n contrast to the usual burglary situation, no danger arises from the mere entry of a person into his own home, no matter what his intent is. He may cause a great deal of mischief once inside. But no emotional distress is suffered, no panic in engendered, and no violence necessarily erupts merely because he walks into his house." ( Id. at p. 715.)
Since the decision in Gauze, "courts have held that `[t]o sustain a burglary conviction, the People must prove that a defendant does not have an unconditional possessory right to enter his or her family residence. [Citation.]' [Citations.]" ( Smith, supra, 142 Cal.App.4th at p. 930.) The Gauze court contributed to this area of law by clarifying its earlier decision in People v. Sears (1965) 62 Cal.2d 737 [ 44 Cal.Rptr. 330, 401 P.2d 938] ( Sears), overruled on another ground in People v. Cahill (1993) 5 Cal.4th 478, 510, footnote 17 [ 20 Cal.Rptr.2d 582, 853 P.2d 1037].
Among other things, the defendant in Sears challenged a felony-murder instruction based on a burglary charge. ( Sears, supra, 62 Cal.2d at pp. 739, 744.) The facts of that case were that three weeks before the incident giving rise to the criminal charges, the defendant and his wife separated and the defendant moved to a hotel. One evening the defendant returned to the residence with a friend, purportedly to pick up his mail. The defendant entered through the unlocked front door with a steel pipe hidden under his shirt. He hit his estranged wife with the pipe and killed his young stepdaughter when she tried to protect her mother. ( Id. at pp. 740-741.) In Sears, the Supreme Court reversed the conviction on grounds other than instructional error. However, it stated in dictum that the evidence supported a felony-murder burglary instruction, rejecting "defendant's contention that the court should not have given the burglary instruction because defendant, as Clara's husband, had a right to enter the family home. One who enters a room or building with the intent to commit a felony is guilty of burglary even though permission to enter has been extended to him personally or as a member of the public. [Citation.] The entry need not constitute a trespass. [Citations.] Moreover, since defendant had moved out of the family home three weeks prior to the crime, he could claim no right to enter the residence of another without permission. Even if we assume that defendant could properly enter the house for a lawful purpose [citation], such an entry still constitutes burglary if accomplished with the intent to commit a felonious assault within it." ( Id. at p. 746, italics added.)
Ten years later in Gauze, the Supreme Court further explained its earlier opinion, observing that "Sears could be convicted of burglary was based on two separate considerations. First, Sears had no right to enter his wife's house; that fact alone supported the conviction. Second, even if he had a right to enter, the right was based on former section 157 of the Civil Code (now § 5102), which gave a person the right to enter the separate property of his or her spouse, subject to certain conditions. Thus Sears' `right' to enter his wife's house . . . was at best conditional. An entry for anything but a legal purpose was a breach of his wife's possessory rights. . . ." ( Gauze, supra, 15 Cal.3d at p. 715, some italics added.)
More recently, in Smith, the court upheld a burglary conviction over defendant's claim that he "`should not be convicted of felony residential burglary for entering premises in which he own[ed] a co-equal interest.'" ( Smith, supra, 142 Cal.App.4th at p. 929.) The defendant was arrested and jailed on October 3, 2000, after beating his wife. ( Id. at pp. 926-927.) She obtained a restraining order and an order removing the defendant from the home and granting her sole possession. On October 10, 2000, after his release from jail, the defendant entered the home by throwing a propane canister through a glass door, and viciously attacked his wife. ( Id. at p. 927.) The court rejected the defendant's argument that he had a right to enter the residence. Citing both Gauze and Sears, the court explained that "the court order which temporarily gave [defendant's wif[e] sole possession denied defendant an unconditional possessory right to enter [the] family residence." ( Id. at p. 931.) It emphasized that "[t]he possessory right protected under the Family Code differs from that contemplated under the Penal Code. `The possessory right protected by section 459 is the "right to exert control over property to the exclusion of others" or, stated differently, the "right to enter as the occupant of that structure." [Citation.]' [Citation.]" ( Id. at p. 932.) The same principles apply to the facts in the case before us.
Although the aforementioned cases are factually dissimilar to this case in that T.G. did not have a court order granting her sole possession of the family home, was denied an emergency protective order, and defendant had only been out of the house for one day and evening, we believe the facts are within the principles annunciated in the Sears and Smith cases. Here, the evidence showed that T.G. asked defendant to leave the residence and he did so. Later that day, at T.G.'s request, Gantt delivered a suitcase and money to defendant. Gantt collected defendant's house keys from defendant without objection and returned them to T.G. By voluntarily leaving the house, giving up his house keys on January 31, 2004, and heeding the directives of T.G. to stay out of the family home, defendant waived his unconditional right to enter the home. By obtaining the house keys voluntarily from defendant, T.G. exerted possessory control over the family home to the exclusion of others, specifically defendant. ( Smith, supra, 142 Cal.App.4th at p. 932.) Defendant's subsequent conduct demonstrated that he gave up his right to possessory interest in the house and understood he did not have the right to enter the residence at will. He parked his car on the public street in front of the house, and although he was upset, he did not attempt to enter or otherwise go inside the house. When the police arrived, defendant told them that while he thought it was unfair that he had to be the one to leave the home, he intended to wait in his car until T.G. let him back into the house. Although defendant was angry that he had been treated unfairly, he clearly knew that circumstances had changed.
Our conclusion that defendant was properly charged and convicted of burglary is consistent with the exception to the general rule, articulated in Smith, that a person cannot be convicted of burglarizing his or her own home. Gauze indicated that, under ordinary circumstances, "no danger arises from the mere entry of a person into his own home, no matter what his intent is. He may cause a great deal of mischief once inside. But no emotional distress is suffered, no panic in engendered, and no violence necessarily erupts merely because he walks into his house." ( Gauze, supra, 15 Cal.3d at p. 715.) Here, as in Smith, the occupants of the family home were estranged, there had been prior threats to the safety of the victim and there had been incidents of spousal abuse. The victims feared for their safety. ( Smith, supra, 142 Cal.App.4th at pp. 926-927.) It is clear in these circumstances that danger did arise from the mere entry of defendant into his former home.
VI. Upper Term Sentence
See footnote, ante, page 149.
Citing Cunningham v. California (2007) 549 U.S. ___ [ 166 L.Ed.2d 856] ( Cunningham), Blakely v. Washington (2004) 542 U.S. 296 [ 159 L.Ed.2d 403] ( Blakely), and Apprendi v. New Jersey (2000) 530 U.S. 466 [ 147 L.Ed.2d 435] ( Apprendi), defendant argues that the court violated his Sixth Amendment rights by sentencing him to the upper term for his convictions for rape by a foreign object in count 3 without permitting the jury to decide the aggravating factors beyond a reasonable doubt. The record demonstrates that the jury's true findings on four enhancement allegations support one of the aggravating circumstances. Moreover, even if we were to conclude there was error under Cunningham, the error was harmless beyond a reasonable doubt. ( Chapman v. California (1967) 386 U.S. 18 ( Chapman).) We begin by rejecting the Attorney General's argument that defendant forfeited his claim of Apprendi/Blakely/Cunningham error by failing to object on federal constitutional grounds at sentencing in October 2005. Any request for jury trial on the aggravating circumstances would have been futile, because the trial court would have been required to follow the California Supreme Court's decision in People v. Black (2005) 35 Cal.4th 1238 ( Black I), overruled in part by Cunningham, supra, 549 U.S. at p. ___ [ 166 L.Ed.2d at page 865], which was decided in June 2005, and deny the request. ( People v. Sandoval (2007) 41 Cal.4th 825, 837-838 ( Sandoval).) Turning to the merits, we note that none of the aggravating circumstances cited by the trial court at sentencing come within the exceptions to the requirement of jury determination set forth in Apprendi and Blakely — specifically, facts admitted by the defendant ( Blakely, supra, 542 U.S. at p. 303) or the fact of prior convictions ( id. at p. 301; Apprendi, supra, 530 U.S. at p. 490.) Before imposing sentence on the specific counts, the court addressed defendant, observing that defendant did not grasp the severity of the crimes he committed or accept responsibility for them. The court continued: "This was not a joy ride. This was not a sexual escapade. This was a cruel and sadistic attempt to extract revenge for a perceived wrong. You assaulted your wife in the most humiliating and terrifying way that you could think of. And only by some unexplained circumstance did you not fulfill your intention to kill her." When sentencing defendant to the upper term in count three, the court found the following specific circumstances in aggravation under California Rules of Court, rule 4.421: "(a)(1), that these assaults went beyond what violence, threats and cruelty normally associated with sexual assault, kidnapping and binding. This was a deliberate attempt to degrade, humiliate and psychologically terrorize the victim. "Subsection (a)(6), that he suborned perjury. Both the defendant and victim gave similar statements to the police after the incident. However, at trial, [defendant] testified that he was tired and just started making things up, and [T.G.] testified she was scared they were going to take her to jail and she lied, yet, they surprisingly lied about the exact same details. By the trial, both gave almost identical testimony which was diametrically opposed to their earlier statements. In addition, it was obvious that [T.G.] talked to [D.G.] a couple days prior to his testimony, telling him that something he had told the police wasn't true. "And then circumstances in aggravation (a)(8), the planning, that he disabled the phone, that he checked on it, that he parked the car around the corner so he wouldn't be seen. In his statement that, "I had kind of plotted out a plan." The court added two other circumstances in aggravation pursuant to California Rules of Court, rule 4.421(c): "First, the other victims in this case, [D.G.] and [C.G.]. Despite assertions to the contrary, both children overheard part of what was going on in the middle of the night. [¶] . . . [¶] The second factor in aggravation is that this was not a single isolated incident. This was the culmination of a pattern of conduct — anger, violence and forced sexual conduct — that escalated throughout the marriage." Although the court did not submit these aggravating factors to the jury, the jury found true four special allegations in count 3, rape by foreign object, that support the first aggravating circumstance cited by the court — that "the crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness." (Cal. Rules of Court, rule 4.421(a)(1).) The jury found true specific allegations that: (1) "defendant kidnapped the victim of the above offense, and the movement substantially increased the risk of harm to the victim over and above the risk necessarily inherent in the underlying offense, within the meaning of . . . section 667.61(d)(2)"; (2) "defendant kidnaped [sic] the victim of the above offense in violation of . . . section 207 or 209, and the kidnapping was for the purpose of Rape by Foreign Object, within the meaning of . . . section 667.8"; (3) "defendant kidnapped the victim of the above offense in violation of . . . section 207 or 209, and engaged in tying or binding of the victim in the commission of the present offense, within the meaning of . . . section 667.61(e)(1)"; and (4) "defendant committed the above offense during the commission of a burglary, and the defendant had the intent to commit a violation of . . . Section 262(a), Spousal Rape or . . . section 289(a), Rape by Foreign Object, within the meaning of . . . section 667.61(d)(4)." The existence of a single aggravating factor is legally sufficient to make defendant eligible for the upper term. ( People v. Osband (1996) 13 Cal.4th 622, 728-729.) However, even if we were to conclude the jury's findings on the special allegations did not support the stated circumstances in aggravation, and the court violated defendant's Sixth Amendment rights by imposing the upper term of eight years in count 3, the upper term sentence stands. We review a denial of the right to jury trial on aggravating circumstances under the harmless error standard set forth in Chapman, supra, 386 U.S. 18 [ 17 L.Ed.2d 705]. ( Sandoval, supra, 41 Cal.4th at pp. 838-839, citing Washington v. Recueno (2006) 548 U.S. ___ [ 165 L.Ed.2d 466] and Neder v. United States (1999) 527 U.S. 1, 8-15 [ 144 L.Ed.2d 35, 46-51].) Under this standard, "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." ( Sandoval, supra, at p. 838.) If 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.) The record in this case supports such a finding. As we outlined in the statement of facts, defendant admitted the following facts in his interview with police the night of his arrest: (1) parking his car down the street from the house so T.G. and the neighbors would not know he was there; (2) borrowing a screwdriver from a friend's house so he could open the telephone box; (3) disconnecting the telephone and calling from a nearby pay phone to make sure the line was dead; (4) returning to the house and trying to break down the front door; (5) removing the screen and entering through a window on the side of the house; (6) screaming at T.G., saying "this is what [you] get"; (7) pushing T.G. around and hitting her in the bedroom; (8) dragging T.G. by her arm or hair into the garage; (9) tying her up; (10) putting a gag in her mouth; (11) forcing her to have sex and sticking the flashlight into her vagina; (12) threatening to cut off her body parts; (13) putting T.G. face down and naked in the back seat of the car, hog-tying her, and driving out of the county; and (14) forcing T.G. to orally copulate him and swallow the ejaculate. Although defendant attempted to deny or explain away these admissions at trial, we conclude the jury would have found at least two aggravating circumstances — California Rules of Court, rule 4.421(a)(1) and (a)(8) — true beyond a reasonable doubt had it been given the opportunity. Accordingly, any Apprendi/Blakely/Cunningham error was harmless.
DISPOSITION
The judgment is affirmed.Blease, Acting P. J., and Morrison, J., concurred.
Appellant's petition for review by the Supreme Court was denied April 30, 2008, S161189.