Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 98F00835
OPINION ON REHEARING AFTER REMAND FROM UNITED STATES SUPREME COURT
ROBIE, J.
Defendant Clarence Joseph Hayes was convicted after a jury trial of burglary (count one), two counts of rape (counts two and five), penetration by foreign object (count three), forcible oral copulation (count four), and robbery (count six). The jury also found he had committed the rapes during the commission of a burglary and that he bound or tied the victim during the forcible oral copulation. The trial court found true a prior strike conviction for rape in 1988.
In an earlier appeal, we reversed the trial court’s finding that a prior 1982 conviction for robbery constituted a strike based on insufficiency of evidence and remanded for retrial on the strike. In all other respects, the judgment was affirmed. (People v. Hayes (July 1, 2002, C032730) [nonpub. opn.].) The prosecution elected not to retry the strike on remand and defendant was resentenced.
In this appeal, defendant contends: (1) the trial court erred in imposing fully consecutive sentences on counts three, four, and five; (2) imposition of fully consecutive and upper terms based upon factors not presented to the jury violated the Sixth Amendment of the United States Constitution as interpreted in Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403], (Blakely); (3) his counsel was ineffective for not objecting to the upper term consecutive sentences on the grounds he proffers now; and (4) his 115-years-to-life sentence constitutes cruel and unusual punishment. In a supplemental letter brief, defendant further contends that imposition of the upper terms violated the Sixth Amendment of the United States Constitution as interpreted in Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856]. We affirm.
BACKGROUND
On remand, the trial court sentenced defendant as follows:
“I do not find that there are any circumstances that I have found in the probation report that show circumstances in mitigation. I do note that there are criteria under Rule 425 that affect and will impact on the consecutive or concurrent sentence. That is, Rule 425(a)(1), the crimes and their objectives in Counts Two, Three, Four, Five and Six are predominately independent of each other.
“And the Rule 425(a)(2), the applicability in this regard is as follows: The crimes in the above counts involved separate acts of violence.
“I note Rule 426, violent sex crimes, that it says the crimes not sentenced under Penal Code 669 as life terms could be subject to full term consecutive sentencing for qualified violent sex crimes concerning the same victim on the same occasion pursuant to Section 667.6c of the Penal Code.
“This was a particularly violent crime. It was a particularly heinous crime that obviously had great impact upon the victim. I agree with the probation department that the defendant is not eligible for probation, and the sections that I cited certainly are -- but I want to clearly say even if the defendant were eligible for probation, I would not give probation in this case because of the nature and seriousness of the offenses that have convictions and findings by the jury.
“Allegations pursuant to 667.61(d)(4) of the Penal Code, which mandates a life sentence per victim during a single occasion, were found to be true as to Counts Two through Five, and I am sentencing him as if his prior conviction pursuant to Penal Code Section 667(b)(1), that sentence, that conviction was found to be true by the Court in a separate hearing and I confirm that ruling.
“Regarding Count Two, the violation of 667.61(d)(4) of the Penal Code allegation, that was found to be true and, therefore, the defendant is sentenced to state prison for life with a minimum parole eligibility of 25 years pursuant to 667.61(a) of the Penal Code, and that sentence is now doubled pursuant to Penal Code Sections 667(e)(1) and 1170.12(c)(1), which results in a life term with a minimum parole eligibility of 50 years. This is to run consecutive to all other counts because I find this to be a separate act of violence and predominantly independent of all other counts.
“In regards to Counts Three, Four and Five, the defendant is sentenced to the full high term of eight years state prison as to each count under Penal Code Section 667.6(c), as these crimes were violent sex crimes and I sentence under that section due to the vicious treatment of the victim and the fact that the defendant did have time to reflect on these offenses.
“The high term of eight years is going to be imposed by the Court because of consideration of the defendant’s history of violent conduct which indicates to the Court that he is indeed a serious danger to society, and it is applicable to each count.
“I further find that Section 667(e)(1) and 1170.12(c)(1) of the Penal Code mandate that the sentence for each of these counts is to be doubled, which results in a sentence of sixteen years as to each of the aforementioned counts.
“Further, I find that Penal Code 667.6(c) mandates that the defendant serve a full, separate and consecutive term applicable to each count. Total aggregate sentence imposed by these counts by this Court is forty-eight years.
“Count Six is sentenced pursuant to Penal Code Section 1170.1, and I, therefore, impose that the defendant be sentenced to state prison for the high term of six years and that this sentence is now doubled to twelve years, pursuant to Penal Code Sections 667(e)(1) and 1170.12(c)(1). This high term is imposed because the defendant has served a prior prison term, the Nevada conviction, and his history of violent conduct. I impose it on the prior prison term alone and the serious nature of that, and I find that he is by reason of such prior conviction a serious danger to society.
“This sentence is to be served consecutively as the crime and its objective are predominately independent of the other counts.
“As to Count One, there is not going to be a sentence because it is the basis for the special circumstance in 667.61(d)(4) Penal Code allegation which specifies and imposed a life term.
“The defendant is to serve an additional five years state prison term pursuant to Section 667(a) of the Penal Code. The aggregate term, therefore, is sixty-five years consecutive to one term of life with a minimum parole eligibility of fifty years.”
DISCUSSION
I
Fully Consecutive Sentences
Defendant contends that the trial court improperly sentenced him to fully consecutive terms on counts three, four and five (penetration by foreign object, forcible oral copulation, and rape). Defendant argues the “trial court erred in finding that sentencing under [Pen. Code, § 667.6] subdivision (c) was mandatory rather than discretionary.”
The People acknowledge that the court used the word “mandates” when articulating its sentencing decision but nevertheless maintain the record makes clear that the court was aware of and exercised its discretion to impose consecutive terms pursuant to Penal Code section 667.6, subdivision (c). We agree with the People.
All further statutory references are to the Penal Code unless otherwise indicated.
Section 667.6 allows for a full, separate consecutive sentence for a violent sex crime. Subdivision (c) provides that such sentence is discretionary “whether or not the crimes were committed during a single transaction.” The court must state a reason for imposing consecutive sentences and a reason for imposing a full, consecutive sentence. They may be the same reasons and they include: the offenses involved separate acts of violence; the crimes were committed at different times; the victim was particularly vulnerable; the defendant took advantage of a position of trust; defendant served a prior prison term; defendant performed unsatisfactorily on parole; and any other reasonably related factor. Only one reason is required to support a full, consecutive sentence under section 667.6, subdivision (c). Subdivision (d) provides that once the court has decided to sentence a defendant pursuant to section 667.6 and has given a reason therefore, a full, consecutive sentence is mandatory where the defendant has committed multiple offenses against the same victim on separate occasions. (§ 667.6, subds. (c), (d); Cal. Rules of Court, rules 4.408(a), 4.421, 4.423, 4.425(a), (b), 4.426(a), (b); People v. Belmontes (1983) 34 Cal.3d 335, 343-349.)
All references to section 667.6 are to the 2004 version.
Here, as recognized by defendant, the trial court began by acknowledging that under “Rule 426, violent sex crimes, that it says the crimes not sentenced under Penal Code 669 as life terms could be subject to full term consecutive sentencing for qualified violent sex crimes concerning the same victim on the same occasion pursuant to Section 667.6c of the Penal Code.” (Italics added.) The court went on to find that “[t]his was a particularly violent crime. It was a particularly heinous crime that obviously had great impact upon the victim.”
Thereafter, the trial court restated its recognition of its discretion, as well as its decision and reasons for imposing fully consecutive terms, stating: “In regards to Counts Three, Four and Five, the defendant is sentenced to the full high term of eight years state prison as to each count under Penal Code Section 667.6(c) , as these crimes were violent sex crimes and I sentence under that section due to the vicious treatment of the victim and the fact that the defendant did have time to reflect on these offenses.” (Italics added.) The trial court then went on to state its reasons for imposing the upper (or “high”) term as well.
These statements and supporting findings reflect the trial court’s recognition of its discretion to impose fully consecutive terms under section 667.6, subdivision (c), and its decision to do so. We do not find the trial court’s later use of the phrase, “I find that Penal Code 667.6(c) mandates that defendant serve a full, separate and consecutive term” sufficient to negate the otherwise clear statements of the court that it was exercising its discretion and making supporting findings therefore.
Because we conclude the trial court imposed fully consecutive sentences on counts three, four and five pursuant to the discretionary provisions of section 667.6, subdivision (c), we need not reach defendant’s claim that the record does not support an implied finding that the offenses occurred on separate occasions to support consecutive sentences under the mandatory provisions of section 667.6, subdivision (d).
II
Blakely And Cunningham
Defendant next argues that “if full term consecutive sentencing is construed to be pursuant to subdivision (d), the sentencing is illegal because the finding of ‘separate occasions’ was made by the judge, not a jury, and was not made by proof beyond a reasonable doubt in violation of [defendant’s] Sixth and Fourteenth Amendment rights to a jury trial and proof beyond a reasonable doubt.” Since we concluded in the previous section that the court imposed fully consecutive sentences on counts three, four and five pursuant to the discretionary provisions of section 667.6, subdivision (c), not the mandatory provisions of section 667.6, subdivision (d), we do not reach defendant’s claim.
Defendant also argues that, “[e]ven if this court were to construe that the court exercised its discretion under subdivision [(]c), the imposition of full-term consecutive sentencing violates [defendant’s] Sixth and Fourteenth Amendment rights to a jury determination and proof beyond a reasonable doubt” as set forth in Blakely. He further argues that the imposition of the upper term sentences based on aggravating factors found by the court also violates the rule of Blakely and Cunningham.
The People respond that defendant forfeited these contentions because he failed to raise them in the trial court. We agree with the People.
On June 24, 2004, the United States Supreme Court issued its decision in Blakely, which held that a state trial court’s imposition of a sentence that exceeded the statutory maximum of the standard range for the charged offense on the basis of additional factual findings made by the court violated the defendant’s Sixth Amendment right to trial by jury. (Blakely, supra, 542 U.S. at pp. 303-305 [159 L.Ed.2d at pp. 413-414].)
On July 28, 2004, the California Supreme Court granted review of People v. Black (2005) 35 Cal.4th 1238 (Black I), a case which involves the application of Blakely to consecutive upper term sentencing. Defendant’s resentencing hearing occurred on October 15, 2004.
On June 20, 2005, the California Supreme Court decided Black I, and rejected a Blakely claim similar to defendant’s, concluding “that the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence or consecutive terms under California law does not implicate a defendant’s Sixth Amendment right to a jury trial.” (Black I, supra, 35 Cal.4th at p. 1244.)
On January 22, 2007, the United States Supreme Court held in Cunningham, that under Blakely and other decisions, California’s determinate sentencing law does “violate[] a defendant’s right to trial by jury safeguarded by the Sixth and Fourteenth Amendments” to the extent the law allows a judge to impose an upper term sentence “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. ___ [166 L.Ed.2d at p. 864].)
“‘“An appellate court will ordinarily not consider procedural defects or erroneous rulings, in connection with relief sought or defenses asserted, where an objection could have been, but was not, presented to the lower court by some appropriate method . . . . The circumstances may involve such intentional acts or acquiescence as to be appropriately classified under the headings of estoppel or waiver . . . . Often, however, the explanation is simply that it is unfair to the trial judge and to the adverse party to take advantage of an error on appeal when it could easily have been corrected at the trial.”’ (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184-185, fn. 1 . . . italics in Doers.) ‘“The purpose of the [forfeiture] doctrine . . . is to encourage a defendant to bring errors to the attention of the trial court, so that they may be corrected or avoided and a fair trial had . . . .”’ (People v. Walker (1991) 54 Cal.3d 1013, 1023 . . . .) ‘“No procedural principle is more familiar to this Court than that a constitutional right,” or a right of any other sort, “may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.” [Citation.]’ (United States v. Olano (1993) [507 U.S. 725, 731 [123 L.Ed.2d 508, 517, 113 S.Ct. 1770]].)” (People v. Saunders (1993) 5 Cal.4th 580, 589-590, fn. omitted; see also People v. Scott (1994) 9 Cal.4th 331, 353 [concluding the “waiver doctrine” applies “to claims involving the trial court’s failure to properly make or articulate its discretionary sentencing choices”].)
Here, defendant did not object at sentencing to the court’s reliance on facts not found by a jury or admitted by him. We cannot say such an objection would have been futile since he was sentenced after Blakely and after the California Supreme Court had granted review in Black I but before the court issued its decision in Black I.
By failing to interpose a Blakely objection or a jury trial objection (on which both Blakely and Cunningham are based) at his resentencing -- approximately 4 months after Blakely was decided and approximately 3 months after review was granted in Black I and where no decision in Black I had been issued -- defendant forfeited his Blakely and Cunningham claims on appeal. Although we nevertheless have discretion to reach the merits of his claim (People v. Marchand (2002) 98 Cal.App.4th 1056, 1061), we decline to exercise our discretion here.
III
Counsel Was Not Ineffective For Failing To Object On Blakely Grounds To The Upper Term Consecutive Sentence
Perhaps anticipating that his Blakely claims were forfeited, defendant contends that his defense attorney was ineffective for failing to object to the court’s imposition of the upper term consecutive sentence on the grounds that he proffers now. Disagreeing with defendant, we first lay out the standard applicable to evaluating a claim of ineffective assistance of counsel and then apply that standard to the court’s decision to impose consecutive sentences and the upper terms.
A
Standard Of Review
The burden of proving a claim of ineffective assistance of counsel is on the defendant. (People v. Ledesma (1987) 43 Cal.3d 171, 215-218.) To meet this burden, the defendant must show two things. First, he must show that his counsel’s representation was deficient, i.e., it fell below an objective standard of reasonableness under prevailing professional norms. Second, the defendant must show that counsel’s deficient representation subjected the defense to prejudice, i.e., that there is a reasonable probability that but for counsel’s failings, the result would have been more favorable. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694 [80 L.Ed.2d 674, 693-694, 698]; People v. Bell (1989) 49 Cal.3d 502, 546.)
B
Consecutive Sentencing
As stated in part I of the Discussion, ante, section 667.6, subdivision (c) grants the court discretion to impose a “full, separate, and consecutive term” of imprisonment for a conviction of one of the specified sex offenses, “whether or not the crimes were committed during a single transaction.” Therefore, if the predicate condition is met, namely that the defendant was convicted of one of the specified sex offenses, the decision to impose a consecutive sentence under section 667.6, subdivision (c) is discretionary and is guided by the same criteria used to impose a consecutive sentence under section 1170.1, subdivision (a). (Cal. Rules of Court, rule 4.426(b); People v. Belmontes, supra, 34 Cal.3d at p. 347.) Like sections 669 and 1170.1, section 667.6, subdivision (c) does not state a presumption favoring concurrent or consecutive sentences. It is merely an alternate scheme for calculating the length of a consecutive sentence. Just as the court must state reasons for imposing a consecutive sentence under section 669 (Cal. Rules of Court, rule 4.406(b)(5), (6); People v. Walker (1978) 83 Cal.App.3d 619, 622), the court must state reasons for imposing a consecutive sentence under section 667.6, subdivision (c) (Belmontes, at pp. 347-348).
The requirement that the court state reasons for imposing a consecutive sentence does not alter the nature of the court’s decision however. It remains a discretionary one. Because there is no presumption favoring concurrent sentences, it operates in the same manner as section 669. And as to consecutive sentences imposed under section 669, the California Supreme Court has recently “conclude[d] that defendant’s constitutional right to jury trial was not violated by the trial court’s imposition of consecutive sentences . . . .” (People v. Black (2007) 41 Cal.4th 799, 823 (Black II).) It follows, then, that counsel was not ineffective for failing to object to the consecutive sentences on Blakely grounds.
C
Upper Terms
At resentencing, the prosecutor asked the court to “specifically . . . focus on what Blakely . . . says we can look at without triggering any kind of jury trial, which would be his prior convictions. And in this case, he has two prior prison terms, which we are not sentencing him under in this case. And he also has this Nevada state robbery conviction, and it is our position that his prior conviction alone is sufficient alone for the Court to give him an upper term on all the counts that I have requested.”
Defense counsel responded that “If the court is going to consider only the recidivist factors for the upper term, I would point out that the prior conviction for the rape in 1980 has already been used to enhance his sentence as a five-year prior and doubled the requisite sentence, so I don’t think it would be appropriate to also use it for the upper term, and I would ask the Court not to do that.”
The prosecutor then added that defendant’s “prior convictions by themselves, I think, are sufficient to aggravate this easily to an upper term based on a serious offense up in Nevada of robbery and a Penal Code 290(a) violation as well as Penal Code Section 484 violation in which he was on probation for at the time of the current offense. [¶] In addition -- well, as to the robbery count in Nevada, that one also resulted in a prison term in that case. So I think by themselves that will easily allow the Court to reach an upper term decision on this case.”
The court then turned to sentencing defendant and had the following colloquy with defense counsel about complying with Blakely.
“THE COURT: I note in regards to Blakely, that on page 13 of the probation report that there are circumstances in aggravation that are listed that I believe under the current state of the affairs of the law of Blakely and its progeny that will come forward that there are aspects of things listed by the probation report on page[s] 13 and 14 that cannot be and will not be used by this Court in aggravating or enhancing the sentence.
“The only factors that I will be using on page 13 are Rule 421(b)(2), the defendant’s prior convictions as an adult are numerous and of increasing seriousness; Rule 421(b)(3), the defendant has served one prior prison term, the Nevada case that we mentioned earlier on the record; and 421(b)(4), that the defendant was on informal probation for felony violation of Section 290(a) of the Penal Code and misdemeanor violation of Section 484 of the Penal Code when the crimes were committed.
“[DEFENSE COUNSEL]: May I add something, Judge.
“THE COURT: Yes.
“[DEFENSE COUNSEL]: I hate to quibble, but the law is in a state of flux with regard to 421(b)(2), the defendant’s prior convictions as an adult are numerous and of increasing seriousness. I think the Court can certainly consider the existence of the prior conviction, but I think the subjective conclusion that they are numerous and of increasing seriousness
“THE COURT: I agree with you. It is a serious crime, but it’s certainly not numerous. In fact, I will strike that aspect from the probation report and by interlineation just cross that out. I agree with you, [defense counsel], and I appreciate you bringing it to the Court’s attention.”
The probation report, as revised by the court, showed the court was relying on the following aggravating factors: (1) “defendant’s prior convictions as an adult are of increasing seriousness”; (2) “defendant has served one prior prison term”; and (3) “defendant was on informal probation for felony violation of Section 290(a) of the Penal Code and misdemeanor violation of Section 484 of the Penal Code when the crimes were committed.”
When the court imposed the upper term on counts three, four, and five it stated the following: “The high term . . . is going to be imposed by the Court because of consideration of the defendant’s history of violent conduct which indicates to this Court that he is indeed a serious danger to society, and it is applicable to each count.”
When the court imposed the upper term on count six it stated the following: “This high term is imposed because the defendant has served a prior prison term, one prior prison term, the Nevada conviction, and his history of violent conduct. I impose it on the prior prison term alone and the serious nature of that, and I find that he is by reason of such prior conviction a serious danger to society.”
Applying the Sixth and Fourteenth Amendments to the United States Constitution, the United States Supreme Court held in Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (Id. at p. 490 [147 L.Ed.2d at p. 455], italics added.) Under this rule, the “statutory maximum” is the maximum sentence the trial court may impose based solely on the facts reflected in the jury verdict or admitted by the defendant. (Blakely, supra, 542 U.S. at p. 303 [159 L.Ed.2d at p. 413].)
In Black I, the California Supreme Court rejected a claim of Blakely error, concluding “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.” (Black I, supra, 35 Cal.4th at p. 1244.)
In Cunningham v. California, supra, 549 U.S. ___ [166 L.Ed.2d 856], however, the United States Supreme Court held that under Blakely and other decisions, California’s determinate sentencing law does “violate[] a defendant’s right to trial by jury safeguarded by the Sixth and Fourteenth Amendments” to the extent the law allows a judge to impose an upper term sentence “based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant.” (Cunningham, at p. ___ [166 L.Ed.2d at p. 864].)
On remand from the United States Supreme Court for reconsideration in light of Cunningham, the California Supreme Court recently held that “imposition 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.” (Black II, supra, 41 Cal.4th at p. 816.) The “prior conviction” exception “include[s] 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.” (Id. at p. 22.) It also found that the prior convictions need not be found by proof beyond a reasonable doubt. (Id. at pp. 23-24, fn. 9.)
Here, according to the probation report as modified by the court, defendant had one Nevada robbery conviction from 1982, a rape conviction from 1988, a misdemeanor theft conviction from 1997, and failure to register as a sex offender conviction also from 1997. It is clear from the resentencing transcript, the court was intent on imposing the upper term based only on the prior conviction exception. As Black II states, this was constitutionally permissible. As such, to the extent counsel did not object on the grounds proffered on appeal, he was not ineffective.
IV
Cruel And/Or Unusual Punishment
Defendant argues his sentence of 115 years to life constitutes cruel and unusual punishment under the Eighth Amendment to the federal Constitution and article I, section 17 of the California Constitution. Defendant narrows his challenge to a claim that a sentence in excess of life imprisonment “is irrational and by its sheer enormity shocks the conscience.” Defendant complains that he cannot possibly serve the imposed sentence. We recognize the sentence imposed is substantially longer than his possible life span.
However, California courts repeatedly have upheld such lengthy prison sentences. (See, e.g., People v. Wallace (1993) 14 Cal.App.4th 651, 666-667 [upholding sentence of 283 years and 8 months]; People v. Bestelmeyer (1985) 166 Cal.App.3d 520, 531 [upholding sentence of 129 years].) Defendant relies upon concurring opinions for the proposition that a term of imprisonment in excess of life is excessive, unnecessary, and uncivilized under federal and state constitutional law. (Furman v. Georgia (1972) 408 U.S. 238, 279, 331 [33 L.Ed.2d 346, 372, 402-403] (conc. opns. of Brennan, J. & Marshall, J.); People v. Deloza (1998) 18 Cal.4th 585, 601 (conc. opn. of Mosk, J.).) As we stated when confronted with the same argument in People v. Byrd (2001) 89 Cal.App.4th 1373, 1383, “‘no opinion has value as a precedent on points as to which there is no agreement of a majority of the court. [Citations.]’ (People v. Stewart (1985) 171 Cal.App.3d 59, 65 . . .; see People v. Ceballos (1974) 12 Cal.3d 470, 483 . . . .) Because no other justice on our Supreme Court joined in Justice Mosk’s concurring opinion [in People v. DeLoza, supra] it has no precedential value.” Accordingly, there is no authority for the defendant’s argument.
DISPOSITION
The judgment is affirmed.
We concur: BLEASE, Acting P.J., MORRISON, J.