Opinion
A114736 A119794
6-26-2008
THE PEOPLE, Plaintiff and Respondent, v. WALLACE NICKOLAS HIMMER, JR., Defendant and Appellant. In re WALLACE NICKOLAS HIMMER, JR., on Habeas Corpus.
Not to be Published
Appellant Wallace Nickolas Himmer, Jr., was convicted, following a guilty plea, of two counts of committing a lewd and lascivious act on a child under the age of 14 years and one count of exhibiting harmful matter to a minor with the intent to seduce a minor. On appeal, appellant contends (1) the trial courts imposition of an upper term sentence was unconstitutional under Blakely v. Washington (2004) 542 U.S. 296 (Blakely) because it relied on facts that were not alleged, were not found by a jury, and were not found to be true beyond a reasonable doubt; and (2) imposition of a consecutive term constituted multiple punishment in violation of Penal Code section 654.
All further statutory references are to the Penal Code unless otherwise indicated.
Appellant also has filed a petition for writ of habeas corpus, which we have consolidated with the direct appeal, alleging (1) he was denied his federal constitutional rights to due process and a jury trial regarding aggravating factors to be used in sentencing him to an upper term because he did not knowingly waive his Blakely rights, and (2) his counsel was ineffective for failing to explain his Blakely rights and for failing to investigate mitigating facts.
We shall affirm the judgment and deny the petition for writ of habeas corpus.
PROCEDURAL BACKGROUND
Appellant was charged by complaint with two counts of committing a lewd and lascivious act on a child under the age of 14 years (§ 288, subd. (a)—counts 1 & 2), and one count of exhibiting harmful matter to a minor with the intent to seduce a minor (§ 288.2, subd. (a)—count 3). Counts 1 and 2 included the following special allegations: (1) the victim was under the age of 14 and appellant had substantial sexual conduct with her (§ 1203.066, subd. (a)(8)), and (2) appellant used obscene matter and matter depicting sexual conduct in commiting the offense (§ 1203.066, subd. (a)(9)).
On May 5, 2006, appellant entered a plea of guilty to all counts, at which time he waived his Blakely rights.
On June 2, 2006, the trial court sentenced appellant to an aggregate term of ten years eight months in prison, calculated as follows: the upper term of eight years on count 1; a consecutive two-year term (one-third the midterm) on count 2; and a consecutive eight-month term (one-third the midterm) on count 3.
On June 8, 2006, appellant filed a notice of appeal.
FACTUAL BACKGROUND
These facts are taken primarily from the probation officers report.
Appellant, who was born in 1959, had been in a relationship with April H. since 1998. April H. has a daughter from a previous relationship who was born in 1997. Appellant and April H. have a daughter who was born in 2002.
On January 23, 2006, Lake County Sheriffs deputies commenced an investigation into the welfare of appellants daughter and April H.s daughter, after being contacted by Child Protective Services (CPS). April H.s sister had reported that her two nieces were possibly being abused by appellant and also reported that April H. and her two nieces were "`mentally delayed."
April H. had "reported to CPS that the defendant often took the victim, her daughter [then eight years old] from a previous relationship, into their bedroom and allowed her to watch pornographic movies with him. Further, she reported the defendant would masturbate while he watched the movies and also had the victim undress. [She] reported that he penetrated the victim with his fingers and other items. Ms. [H.] spoke with deputies. She reported to deputies that the defendant masturbated in front of the victim one or two times a week. She reported the defendant made the victim undress and bend over in front of him while he masturbated. She reported the defendant also used his fingers to `open the victims vagina and anal area. He also used a `fake dick and `tried to put it into the victims `butt.
"The CPS advocate spoke with the victim with deputies present. The victim stated, `Daddy touches me where I pee and poop. The victim then leaned back and simulated fondling herself and penetrating herself several times.
"Deputies interviewed the defendant on January 23, 2006. The defendant admitted having the victim sleep with him and her mother for the past three years. He would completely undress the victim while having intercourse with her mother and fondle the victims buttocks and anus. He stated these activities had taken place three to four times a month for the past three years."
Appellant also admitted to deputies that, about once a month, he had masturbated in front of the victim while she would "lay oh her back and [placed] her feet up close to her head" and he at times would spread her buttocks with his hand. He also had inserted his finger and a dildo into her anus on one occasion, had licked her vagina on one occasion, and had taken showers with her four times a week.
Following a pretrial competency evaluation, Dr. Douglas Rosoff found appellant competent to stand trial, concluding: "The defendant has learning disabilities that involve verbal expression, but I do not believe that he is developmentally disabled or mentally retarded. He is free of any major mental disorder that results in psychosis, delusions or major mood disturbances. . . . I anticipate his memory . . . and mental state to gradually improve over time as he is not drinking alcohol."
DISCUSSION
I. Imposition of the Upper Term on Count 1
Appellant contends the trial courts imposition of an upper term sentence on count 1 was unconstitutional because the court relied on facts that were not alleged, were not found by a jury, and were not found to be true beyond a reasonable doubt. Appellant relies on Blakely, supra, 542 U.S. 296 and Cunningham v. California (2007) 549 U.S. 270 (Cunningham) in making this claim that his Sixth Amendment rights were violated. Between the filing of appellants opening brief and respondents brief, the California Supreme Court issued its opinions in People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval), which addressed these issues and the impact of Cunningham on them.
Although appellant waived his Blakely rights as part of his guilty plea, in light of his claim, in his habeas petition, that this waiver was invalid because it was not knowing and intelligent (see part I(D)(1), post), we shall assume, for purposes of this appeal, that appellant did not waive his Blakely rights.
In addition, in his habeas petition, appellant contends (1) he was denied his federal constitutional rights to due process and a jury trial regarding aggravating factors to be used in sentencing him to an upper term because he did not knowingly waive his Blakely rights, and (2) his counsel was ineffective for failing to explain his Blakely rights and for failing to investigate mitigating facts.
A. Legal Background
In Cunningham, supra, 549 U.S. 270 , "the United States Supreme Court, disagreeing with [the California Supreme Courts] initial decision in this matter (People v. Black (2005) 35 Cal.4th 1238 . . . (Black I )), held that Californias determinate sentencing law (DSL) violat[ed] a defendants federal constitutional right to a jury trial under the Sixth and Fourteenth Amendments to the United States Constitution by assigning to the trial judge, rather than the jury, the authority to make the factual findings that subject a defendant to the possibility of an upper term sentence." (Black II, supra, 41 Cal.4th at p. 805.) The high court has recognized two exceptions to a defendants right to a jury trial on an aggravating fact that renders him or her eligible for a sentence above the statutory maximum. (Sandoval, supra, 41 Cal.4th at p. 836.) "First, a fact admitted by the defendant may be used to increase his or her sentence beyond the maximum authorized by the jurys verdict. (Blakely, supra, 542 U.S. at p. 303.) Second, the right to jury trial and the requirement of proof beyond a reasonable doubt do not apply to the aggravating fact of a prior conviction. (Id. at p. 301; see Apprendi [v. New Jersey (2000)] 530 U.S. [466,] 490; Almendarez-Torres v. United States (1998) 523 U.S. 224, 239-244 . . . .)" (Sandoval, supra, 41 Cal.4th at pp. 836-837.)
On remand from the United States Supreme Court, the California Supreme Court concluded in Black II, supra, 41 Cal.4th 799, that the "defendant did not forfeit the issue by failing to object to his sentence on Sixth Amendment grounds in the trial court"; "that imposition of an upper term sentence did not violate defendants right to a jury trial, because at least one aggravating circumstance was established by means that satisf[ied] Sixth Amendment requirements and thus made him eligible for the upper term"; and that "neither Cunningham nor the relevant prior high court decisions apply to the imposition of consecutive sentences." (Id. at pp. 805-806, italics added.)
As the court explained in Black II, "the constitutional requirement of a jury trial and proof beyond a reasonable doubt applies only to a fact that is `legally essential to the punishment (Blakely, supra, 542 U.S. at p. 313), that is, to `any fact that exposes a defendant to a greater potential sentence than is authorized by the jurys verdict alone (Cunningham, supra, 549 U.S. at p. ___ )." (Black II, supra, 41 Cal.4th at p. 812; see Rita v. United States (2007) 551 U.S. ___ [127 S.Ct. 2456, 2466]; accord, Sandoval, supra, 41 Cal.4th at pp. 838-839.)
"`Accordingly, so long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury. (Black II, [supra, 41 Cal.4th] at p. 813.) By the same reasoning, if a reviewing court concludes, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury, the Sixth Amendment error properly may be found harmless." (Sandoval, supra, 41 Cal.4th at p. 839.)
B. Trial Court Background
At the sentencing hearing in this case, the trial court discussed aggravating and mitigating circumstances as follows: "The Court finds the defendant took advantage of a position of trust or confidence to commit the offense, that his prior convictions as an adult are numerous and increasing in seriousness.
"In mitigation, the defendant voluntarily acknowledged wrongdoing at an early stage of the criminal process; and his prior performance on probation was satisfactory."
Later in the hearing, the court further discussed its reasons for imposing the upper term on count 1: Regarding "the offense involving the child molest, in that case there was just a series of conduct from having the victim undressed while he masturbated and then touching her vaginal and anal area while watching pornography with her, and the acts that were done in the company of his wife which I earlier mentioned. There was also mention that he used a dildo type device to penetrate the anus of the child as well as other sexual acts with his hands and so forth.
"The Court has considered Dr. Rosoffs report, and it appears the defendant has had a long history of abuse of substances and has committed criminal acts over a long period of time also.
"I dont see that in this case as an excuse or mitigation for the conduct that occurred. He had several years to control the drinking or any substance abuse problems that you had, sir.
"And the Court notes that this repeated molestation started when the victim was only six years old and went on for a three-year period after that and that it involved penetration of both the vagina and the anal areas.
"Your comments to the probation officer to me are unfathomable, that after this conduct went on for that period of time, that youve admitted it on two other occasions, that you couldnt be honest with the probation officer at the time of that interview. Therefore, the Court is going to impose the upper term in state prison."
C. Legal Analysis—Direct Appeal
Appellant claims imposition of an upper term sentence on count 1 unconstitutionally violated his rights under Blakely, supra, 542 U.S. 296 and Cunningham, supra, 549 U.S. ___ . As we have already observed, however, the California Supreme Court has recognized that "the right to jury trial and the requirement of proof beyond a reasonable doubt do not apply to the aggravating fact of a prior conviction." (Sandoval, supra, 41 Cal.4th at pp. 836-837.) In addition, where the defendant is eligible for the upper term in light of facts that have been established consistently with Sixth Amendment principles, the trial court may rely on any number of aggravating circumstances in exercising its discretion to select the appropriate term, regardless of whether the underlying facts have been found to be true by a jury. (Black II, supra, 41 Cal.4th at p. 813.)
Here, appellant has suffered three prior convictions, a fact that he does not dispute. He does argue, however, that the trial courts finding that these prior convictions were numerous and of increasing seriousness (see Cal. Rules of Court, rule 4.421(b)(2)) is problematic in that he had only three convictions, two of which were almost 30 years old (grand theft and throwing an injurious substance on the highway) and the most recent of which (reckless driving) was not more serious than the earlier two convictions.
In 1977, appellant suffered a felony conviction for grand theft (§ 487) and a misdemeanor conviction for throwing an injurious substance on the highway (§ 588(a)); in 1998 appellant suffered a misdemeanor conviction for reckless driving (Veh. Code, § 23103).
All further rule references are to the California Rules of Court.
While appellant may be correct that these convictions were not of increasing seriousness, under Black II, appellants three prior convictions are inarguably numerous. (See Black II, supra, 41 Cal.4th at p. 818, citing People v. Searle (1989) 213 Cal.App.3d 1091, 1098 [three prior convictions are numerous].) Consequently, because appellant was "eligible" for the aggravated term by virtue of the fact of his three prior convictions, the court could also consider other aggravating factors not related to recidivism, and its decision to impose the upper term did not violate the Sixth Amendment. (See Black II, supra, 41 Cal.4th at pp. 813, 820.)
Respondent argues that appellants admissions that he committed the offense in question also made him eligible for the upper term without the need for a jury trial. (See Sandoval, supra, 41 Cal.4th at pp. 836-837.) In light of our conclusion that appellant was eligible for the upper term due to his numerous prior convictions, we need not decide whether he "admitted" any facts justifying imposition of the upper term. (See People v. French (2008) 43 Cal.4th 36 [plea agreement did not implicitly admit facts supporting upper term sentence].)
In his reply brief, appellant argues that Black II was wrongly decided "so far as the claim that the existence of one aggravating factor is sufficient to authorize the upper term and so far as the claim that having `numerous or `increasingly serious prior convictions falls under the Almendarez-Torres exception are concerned." We are, however, bound by the California Supreme Courts decisions in Black II, supra, 41 Cal.4th 799 and Sandoval, supra, 41 Cal.4th 825. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) In light of the conceded existence of the prior convictions, the court also properly considered additional factors in aggravation, including that appellant defendant took advantage of a position of trust or confidence to commit the offense. (See Black II, at p. 813.)
D. Legal Analysis—Habeas Petition
In his petition for writ of habeas corpus, appellant claims both that he did not knowingly waive his Blakely rights, and that defense counsel was ineffective for failing to explain appellants Blakely rights and for failing to investigate mitigating facts.
1. Knowing Waiver of Blakely Rights
Appellant contends the trial courts imposition of the upper term on count 1 was improper because appellants waiver of his Blakely rights was not knowing and intelligent.
At the hearing at which appellant pleaded guilty, the trial court explained that if appellant waived his right to have a jury determine circumstances in aggravation, the court would consider applicable circumstances in aggravation in determining whether to impose a low or high sentence. The court gave examples of various circumstances in aggravation that it could consider and then asked appellant: "So do you give up your right to have a jury trial on those issues and allow the judge to make those determinations?" Appellant answered in the affirmative.
In support of his contention that his waiver was not knowing and intelligent, appellant has submitted a declaration from Dr. Jack Vognsen, a psychologist, who tested appellants intelligence and his ability to understand concepts raised at the plea hearing. Dr. Vognsen concluded that, "in view of [appellants] limited general verbal intelligence [`borderline mentally retarded] and his lack of understanding of most of the key words in the judges explanation . . ., he probably did not understand much of what was explained to him."
Appellants claim is without merit. The trial courts imposition of the upper term did not implicate appellants Sixth Amendment jury trials right since "imposition of the upper term does not infringe upon the defendants constitutional right to jury trial so long as one legally sufficient aggravating circumstance . . . is justified based upon the defendants record of prior convictions." (Black II, supra, 41 Cal.4th at p. 816.) Here, as we have already discussed, with respect to appellants claim on direct appeal (see part I(C), ante), appellants "numerous" prior convictions rendered him eligible for an upper term sentence and permitted the court to rely on other aggravating factors without the need for a jury trial on those factors and without violating appellants Sixth Amendment rights. (See Black II, at pp. 813, 820.)
Hence, since appellant was not entitled to a jury trial on the applicability of aggravating factors, there was no need for a knowing and intelligent waiver of his jury trial rights under Blakely.
2. Ineffective Assistance of Counsel
To prove ineffective assistance of counsel, a defendant must show that "counsels representation fell below an objective standard of reasonableness. . . . [¶] . . . under prevailing professional norms." (Strickland v. Washington (1984) 466 U.S. 668, 688.) In addition, the defendant must affirmatively establish prejudice by showing "that there is a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Id. at p. 694.) "If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed." (Id. at p. 697.)
a.
Appellant first contends counsel was ineffective for failing to explain appellants Blakely rights. However, even had counsel so-failed, appellant cannot show prejudice. (See Strickland v. Washington, supra, 466 U.S. at pp. 694, 697.) That is because, as we have already concluded with respect to appellants claim that his waiver of his Blakely rights was not knowing and intelligent (see part I(D)(1), ante), appellant was eligible for the upper term on the basis of his numerous prior convictions, which did not require jury findings beyond a reasonable doubt. (See Black II, supra, 41 Cal.4th at pp. 813, 818.) Hence, assuming counsel did not provide a full explanation of appellants Blakely rights, it is not reasonably probable that the result would have been different had counsel fully and comprehensibly explained those rights. (See Strickland v. Washington, supra, 466 U.S. at p. 694.)
b.
Appellant also contends counsel was ineffective for failing to investigate mitigating facts. (See, e.g., Williams v. Taylor (2000) 529 U.S. 362, 396 [counsel did not fulfill obligation to conduct thorough investigation of defendants background].) According to appellant, even if the court could have found an aggravating circumstance and imposed the upper term, "it does not follow that it would do so if it weighed aggravating and mitigating circumstances and did not find that the former preponderated."
In determining whether imposition of a lower, middle, or upper term is appropriate, "`[s]entencing courts have wide discretion in weighing aggravating and mitigating factors [citations], and may balance them against each other "in qualitative as well as quantitative terms" [citation] . . . . [Citation.]" (People v. Avalos (1996) 47 Cal.App.4th 1569, 1582.) "A single factor in aggravation will support imposition of an upper term." (People v. Carron (1995) 37 Cal.App.4th 1230, 1241.)
Appellant now argues that counsel could have uncovered and presented to the court two additional factors in mitigation that might well have tipped the balance in his favor as the court weighed aggravating versus mitigating factors. Appellant has submitted a copy of a letter from his 90-year-old father, dated November 11, 2007, describing appellant, inter alia, as "a good son," "well mannered," and "a good father." Appellant also has submitted a copy of a letter from his former employer, Gene Pietila, who lived near appellant when appellant was a child and who wrote, regarding any possible sexual conduct with younger children at that time: "Never was there any speech, action, or attempted action by Mr. Himmer known in the neighborhood." Pietila also wrote that he later took over a business at which appellant was an employee. He subsequently fired appellant when appellant returned to work drunk after lunch. However, two or three years later, he rehired appellant after receiving a "solid" recommendation from another business where appellant had found employment.
Appellants second claim of ineffective assistance of counsel also fails due to his inability to demonstrate prejudice. (See Strickland v. Washington, supra, 466 U.S. at pp. 694, 697.) The letter from appellants father, while loving and supportive, is not particularly credible in light of appellants offenses. The letter from appellants employer, while showing that appellant worked at Pietilas company for a period of time, also shows that appellant was fired from his job at one point for irresponsible behavior. Thus, it is quite unlikely that the trial court would have found that these letters constituted additional factors in mitigation. (Compare People v. Covino (1980) 100 Cal.App.3d 660, 670-671 [trial court failed to consider possible factors in mitigation, including that defendant was a good worker, a kind person, and had a drinking problem].)
The trial court explicitly rejected appellants substance abuse as a factor in mitigation.
As previously discussed, the trial court found the following circumstances in aggravation: (1) appellant had taken advantage of a position of trust or confidence to commit the crimes (see rule 4.421(a)(11)); (2) his prior convictions as an adult were numerous (see rule 4.421(b)(2)); and (3) the specific nature of the offenses, which included repeated sexual touching of the victim over three years, since she was six years old. In mitigation, the court found that (1) appellant had voluntarily acknowledged wrongdoing at an early stage of the criminal process (see rule 4.423 (b)(3)), and (2) his prior performance on probation was satisfactory (see rule 4.423(b)(6)). The court specifically rejected appellants history of substance abuse as a factor in mitigation, stating that appellant had several years to control any such problems. The court also found it "unfathomable" that appellant, having previously admitted to committing the offenses, was later dishonest with the probation officer and the court regarding his actions. It is not reasonably probable that the result would have been different had trial counsel obtained the letters from appellants father and former employer and submitted them to the trial court for consideration at sentencing. (See Strickland v. Washington, supra, 466 U.S. at p. 694.)
Appellant argues that this is not a valid factor in aggravation "because most violations of section 288 involve taking advantage of a position of trust . . . ." The circumstances of this case, however, go beyond the typical situation involving a violation of section 288 in that, here, appellant was a father figure to a very young girl described in the record as "`mentally delayed."
We will ignore the trial courts "increasing seriousness" finding for purposes of this discussion.
Appellant argues that the prosecutor did not charge appellant with a continuous course of conduct and that appellant admitted to only the three offenses that were alleged over the three-year time period. Nevertheless, looking only at the three offenses to which appellant pleaded guilty, the trial courts finding on this point is not unreasonable.
This pronouncement seems to neutralize the courts previous finding, in mitigation, that appellant had admitted wrongdoing at an early stage of the process. (See People v. Salazar (1983) 144 Cal.App.3d 799, 813 ["A trial court may minimize or even entirely disregard mitigating factors"].) In addition, the court did not find that appellants low intelligence level was a mitigating factor. (See ibid.)
We also note that appellant includes in this discussion the facts found separately by the trial court in determining whether probation should be granted. (See rule 4.414.) These facts are not applicable to the distinct question subsequently decided by the court regarding whether the upper term should be imposed. (See, e.g., People v. Cardenas (2007) 155 Cal.App.4th 1468, 1482-1483; see also former Pen. Code § 1170, subd. (b); rule 4.406(b).)
II. Section 654
Appellant contends the trial courts imposition of a consecutive term for count 3, exhibiting harmful matter to a minor, constituted multiple punishment in violation of section 654.
A. Trial Court Background
At the sentencing hearing, in determining whether to impose concurrent or consecutive sentences in this case, the court stated: "The criteria relating to the crimes, first, that these crimes and their objectives were not predominately independent of one another and they did not involve separate acts of violence; the Court does find that they were committed at different times and/or separate places and, as I said, over a period of time.
"For that reason, the Court feels that consecutive sentences are appropriate in this case.
"It also is pretty clear to the Court that each of these acts was independent, that he had time to reflect on each previous act before committing the next act, and that he did not do that, that he continued the activity to the detriment of this young child."
B. Legal Analysis
According to appellant, count 3 (exhibiting harmful matter to a minor with the intent to seduce a minor) was merely the means of committing counts 1 and 2 (committing a lewd and lascivious act on a child under the age of 14 years), and he therefore cannot be separately punished for count 3. Appellant apparently failed, however, to object to this alleged error at the sentencing hearing. He therefore has waived the issue on appeal. (See People v. Scott (1994) 9 Cal.4th 331, 353 [concluding that waiver doctrine applies to claims involving trial courts "failure to properly make or articulate its discretionary sentencing choices," including "cases in which the stated reasons allegedly do not apply to the particular case"].)
Moreover, appellants claim cannot succeed on the merits.
"`[S]ection 654 prohibits multiple punishment for an indivisible course of conduct. . . . [Citation.] But multiple crimes are not one transaction where the defendant had a chance to reflect between offenses and each offense created a new risk of harm. [Citations.] `Separate sentencing is permitted for offenses that are divisible in time. . . . [Citation.]" (People v. Felix (2001) 92 Cal.App.4th 905, 915.)
Appellant notes that the complaint contained a special allegation that, as to counts 1 and 2, appellant "used obscene matter depicting sexual conduct within the meaning of Penal Code section 1203.066(a)(9) [prohibiting grant of probation for person who, in violating section 288, used obscene matter or matter depicting sexual conduct]." However, the complaint also contained a separate count alleging that appellant exhibited harmful matter to the victim, pursuant to section 288.2, subdivision (a). The court further stated, at the time of sentencing, that all of the offenses were independent of each other and "were committed at different times and/or separate places and . . . over a period of time." In light of appellants plea of guilty to separate allegations in the complaint that he twice molested the victim and once showed her pornography while masturbating, all during a three-year time period, the trial court reasonably could conclude that appellant committed, at the very least, three completely independent sexual crimes against the victim. (See People v. Felix, supra, 92 Cal.App.4th at p. 915.)
DISPOSITION
The judgment is affirmed. The petition for writ of habeas corpus is denied.
We concur:
Haerle, J.
Richman, J.