Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. KA065793, Robert M. Martinez, Judge.
Lynda A. Romero, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer and Edmund G. Brown Jr., Attorneys General, Robert R. Anderson and Dane R. Gillette, Chief Assistant Attorneys General, Pamela C. Hamanaka, Assistant Attorney General, Michael R. Johnsen, Lawrence M. Daniels and Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.
EPSTEIN, P. J.
Juan Fernando Lopez appealed from the judgment entered following a jury trial in which he was convicted of forcible rape, count 1 (Pen. Code, § 261, subd. (a)(2)); forcible oral copulation, count 2 (Pen. Code, § 288a, subd. (c)(2)); three counts of corporal injury to a cohabitant/child’s parent, counts 3, 6, 7 (Pen. Code, § 273.5, subd. (a)); assault by means likely to produce great bodily injury, count 5 (Pen. Code, § 245, subd. (a)(1)); assault by means likely to produce great bodily injury and with a deadly weapon, count 8 (Pen. Code, § 245, subd (a)(1)); and false imprisonment by violence, count 9 (Pen. Code, § 236) with the further finding that in the commission and attempted commission of the forcible rape and forcible oral copulation, appellant personally used a firearm, to wit, a handgun within the meaning of Penal Code section 12022.53, subdivision (b); and that in the commission of one count of corporal injury, appellant personally inflicted great bodily injury within the meaning of Penal Code section 12022.7, subdivision (a). In a bifurcated proceeding, the court found that appellant had served a prior prison term within the meaning of Penal Code section 667.5, subdivision (b). Appellant was sentenced to prison for a total of 46 years and contended the forcible rape conviction must be reversed because the trial court failed to sua sponte instruct on the necessarily included offenses of assault and battery and that the court committed sentencing error. We issued an opinion on March 30, 2006, affirming the judgment.
Appellant, thereafter, filed a petition for writ of certiorari in the United States Supreme Court. While the petition was pending, that court decided Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham) and later granted appellant’s certiorari petition, vacated our judgment, and remanded the matter to us for further consideration in light of Cunningham. We recalled the remittitur, vacated the opinion, and granted the parties leave to file supplemental briefs addressing the effect, if any, of Cunningham on appellant’s sentence. While the case was pending, the California Supreme Court considered Cunningham issues in People v. Black (2007) 41 Cal.4th 799 and People v. Sandoval (2007) 41 Cal.4th 825. We afforded the parties additional time to address those opinions. After review of Cunningham, Black, Sandoval, and the parties’ supplemental briefs, we conclude appellant’s sentence did not violate his right to a jury trial and was not improper under Blakely v. Washington (2004) 542 U.S. 296.
FACTUAL AND PROCEDURAL SUMMARY
At the time of trial, Lilia Doe was approximately nine months pregnant with appellant’s child. She also had two other children, ages six and four, by appellant. She and appellant had met in 1997, but sometime thereafter he left her and was gone for three years. During those three years, Ms. Doe dated another man. In April 2003, she and appellant got back together and they moved into an apartment in West Covina. She and appellant were not legally married. She denied they had a civil ceremony in Mexico approximately seven years ago.
The victim’s real name was not used at trial to protect her privacy.
On Sunday, March 21, 2004, Ms. Doe, who was approximately six months pregnant, and appellant were having problems. He accused her of calling the other man on the telephone. Ms. Doe claimed she was not making those phone calls. At some point that day, she, appellant and their son went to pick up appellant’s mother and drove her to their apartment. When they left their apartment, appellant was still very angry with Ms. Doe and kept asking her questions about the other man appellant thought she had been seeing. Ms. Doe was very frightened and appellant hit her many times on the face with his fist. When they returned to their apartment, appellant’s mother was frightened and asked appellant, “Why have you hit her again?” Appellant told his mother not to meddle and that the problem was between appellant and Ms. Doe. Ms. Doe’s eyes were “all purple” and her nose was broken. On that same day, appellant forced Ms. Doe to smoke what she believed to be cocaine. She complied because she thought he would hit her if she did not.
Ms. Doe still had problems with her nose. It bleeds frequently without even touching it.
On Tuesday, March 23, appellant was upset, looking for evidence that Ms. Doe was seeing the other man. He “consumed [some] drugs,” “whipp[ed]” her with an extension cord on her back, and called her a “whore” and a “bitch.”
On Thursday, Ms. Doe went with appellant to pick up a gun. Appellant “consumed drugs” in the car. He stated he wanted “to kill a person” and he wanted Ms. Doe with him. Ms. Doe told him not to do anything and that she had nothing to do with the person appellant “supposedly wants to kill.” Appellant got angry again.
On Friday, appellant again got angry about the individual with whom he thought Ms. Doe was having an affair. He loaded his gun and told Ms. Doe he was going to kill her. He wanted her cellular phone and said if she did not give it to him he would hit her again. He picked up a thick belt and said he wanted to hit her. Appellant threw her on the bed, put his hands on her neck and pressed very hard so she was unable to breathe very well. He covered her mouth, told her to shut up, called her a whore and said he was going to kill her. She tried to defend herself but he put a pillow over her mouth and nose so that she “wouldn’t breathe that.” Appellant forced Ms. Doe to orally copulate him, grabbing her head with his hands. His gun was in reaching distance and she believed if she did not cooperate, he was going to hit her “with a gun or something.” He then forced her to have intercourse, again with the gun within reaching distance. The next morning, Ms. Doe went to the police station and was taken to the hospital.
Appellant testified in his own defense that Ms. Doe told him that previously her ex-boyfriend took her places to prostitute herself and was pressuring her to return to him. Appellant said he never hit his wife during the subject week and never forced or threatened her on the evening of March 26, 2004 with any type of harm if she did not have sexual relations with him or orally copulate him. Appellant claimed that Ms. Doe was his wife, that they had married in Mexico and that he had a certificate, which he believed was in Mexico.
DISCUSSION
I
Appellant contends his forcible rape conviction must be reversed because the trial court failed to sua sponte instruct on the lesser included offenses of assault and battery when there was a conflict in the evidence regarding whether appellant was legally married to Ms. Doe, the alleged non-spouse victim.
The jury was instructed in pertinent part, “Every person who engages in an act of sexual intercourse with another person who is not the spouse of the perpetrator accomplished against that person’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury to that person, is guilty of the crime of rape in violation of Penal Code section 261, subdivision (a)(2).”
“In criminal cases, even absent a request, the trial court must instruct on general principles of law relevant to the issues raised by the evidence. [Citation.] This obligation includes giving instructions on lesser included offenses when the evidence raises a question whether all the elements of the charged offense were present, but not when there is no evidence the offense was less than that charged. [Citation.] The trial court must so instruct even when, as a matter of trial tactics, a defendant not only fails to request the instruction, but expressly objects to its being given. [Citations.] Error in failing to instruct the jury on a lesser included offense is harmless when the jury necessarily decides the factual questions posed by the omitted instructions adversely to defendant under other properly given instructions. [Citations.]” (People v. Koontz (2002) 27 Cal.4th 1041, 1085-1086, fn. omitted.)
The existence of “‘any evidence, no matter how weak’ will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is ‘substantial enough to merit consideration’ by the jury. [Citations.] ‘Substantial evidence’ in this context is ‘“evidence from which a jury composed of reasonable [persons] could . . . conclude[ ]”’ that the lesser offense, but not the greater, was committed. [Citations.]” (People v. Breverman (1998) 19 Cal.4th 142, 162.)
“An uncharged crime is included in a greater charged offense if either (a) the greater offense cannot be committed without committing the lesser, or (b) the language of the accusatory pleading encompasses all the elements of the lesser offense.” (People v. Wolcott (1983) 34 Cal.3d 92, 98.) Assault and battery constitute lesser included offenses of rape by means of force or fear. (See People v. Lema (1987) 188 Cal.App.3d 1541, 1545.)
Appellant argues that his testimony that he and Ms. Doe were married in Mexico constitutes substantial evidence that would absolve him of the greater offense of rape but not the lesser offenses of assault and battery. We agree. At trial, the issues not only were the identity of the assailant but also, if the jury believed that appellant was the assailant, the marital status of appellant and Ms. Doe. One of the elements of the crime of rape is that the sexual intercourse occur between non-spouses. While Penal Code section 262 makes rape of a spouse a crime that carries the same potential punishment, that crime was not charged here and, by definition, is not a lesser included offense.
Contrary to respondent’s argument the case of People v. Acevedo (1985) 166 Cal.App.3d 196, is not comparable to the present one. In Acevedo the court concluded disbelief of all or part of the prosecution’s case did not require instruction on lesser included offenses. Here we have disbelief of part of the prosecution’s case but also affirmative testimony by defendant as a basis for giving the instruction on lesser included offenses. (Cf. id. at p. 201.)
The failure to instruct on the lesser included offenses was harmless error, however. “[I]n a noncapital case, error in failing sua sponte to instruct, or to instruct fully, on all lesser included offenses and theories thereof which are supported by the evidence must be reviewed for prejudice exclusively under [People v. ] Watson [(1956) 46 Cal.2d 818, 836]. A conviction of the charged offense may be reversed in consequence of this form of error only if, ‘after an examination of the entire cause, including the evidence’ [citation], it appears ‘reasonably probable’ the defendant would have obtained a more favorable outcome had the error not occurred [citation].” (People v. Breverman, supra, 19 Cal.4th at p. 178, fn. omitted.)
In finding appellant guilty of forcible oral copulation, three counts of corporal injury to a cohabitant or child’s parent, assault by means likely to produce great bodily injury, assault by means likely to produce great bodily injury and with a deadly weapon and false imprisonment, the jury necessarily believed all of Ms. Doe’s testimony regarding all of the acts of violence appellant committed against her and disbelieved all of appellant’s testimony that he never harmed her. That the jury deadlocked on the attempted murder charge does not mean the jury disbelieved any of Ms. Doe’s testimony but rather most likely that the jury was unable to decide whether appellant had the required specific intent. Upon examination of the entire record we conclude that appellant has not demonstrated it is reasonably probable he would have obtained a more favorable outcome had the jury been instructed with the lesser included crimes of assault and battery.
II
Appellant contends the upper terms imposed for the count 7 non-sex crime and counts 1 and 2, sex crimes, violate his right to a jury trial and proof beyond a reasonable doubt as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution, United States v. Booker (2005) 543 U.S. 220, Blakely v. Washington, supra, 542 U.S. 296 and Apprendi v. New Jersey (2000) 530 U.S. 466. In selecting the upper terms, the court stated it was taking into consideration “the extreme danger that this defendant poses to others [and] the fact that he has suffered prior convictions.”
Apart from whether appellant forfeited this claim by failing to object on these grounds at his sentencing hearing, we find no error. In Cunningham v. California, supra, 549 U.S. ___ [127 S.Ct. 856], the United States Supreme Court concluded California’s determinate sentencing law, authorizing a judge to find the facts permitting an upper term sentence and to permit the finding based on a preponderance of the evidence, violated the rule of Apprendi v. New Jersey, supra, 530 U.S. 466, 490 and the Sixth Amendment to the United States Constitution. It also, however, reiterated that the fact of a prior conviction need not be submitted to a jury. (See Cunningham v. California, supra, 549 U.S. ___ [127 S.Ct. 856]; Almendarez-Torres v. United States (1998) 523 U.S. 224, 239-247.) “The United States Supreme Court consistently has stated that the right to a jury trial does not apply to the fact of a prior conviction. [Citations.]” People v. Black, supra, 41 Cal.4th at p. 818.) The prior conviction exception to the Apprendi rule has been construed broadly to apply to factors based on a defendant’s recidivism. (See People v. Black, supra, 41 Cal.4th at p. 819; People v. McGee (2006) 38 Cal.4th 682, 704; People v. Thomas (2001) 91 Cal.App.4th 212, 221-222.) Here, the trial court’s reliance on the fact that appellant had suffered a prior conviction permitted the upper term sentence. Use of that factor did not violate his right to a trial by jury or proof of the fact beyond a reasonable doubt. (See People v. Yim (2007) 152 Cal.App.4th 366, 371.) Further, the trial court could additionally impose an enhancement based on the fact that appellant had served a prior prison term. (See People v. Hurley (1983) 144 Cal.App.3d 706, 709.)
Appellant was sentenced on September 20, 2004, approximately two months after Blakely v. Washington, supra, 542 U.S. 296 was decided. While there was no objection to appellant’s sentence on Blakely grounds, the prosecution submitted a sentencing memorandum calling attention to Blakely and arguing it did not apply.
“[I]f one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not ‘legally entitled’ to the middle term sentence, and the upper term sentence is the ‘statutory maximum.’” (People v. Black, supra, 41 Cal.4th at p. 813, fn. omitted.) Thus, “as long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional factfinding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to jury trial.” (People v. Black, supra, 41 Cal.4th at p. 812.) Here, as the trial court relied upon appellant’s prior conviction, we need not consider whether reliance on the danger appellant poses to others was error. “[T]here is no Sixth Amendment error in a case in which one or more aggravating circumstances have been established in accordance with Sixth Amendment requirements.” (People v. Sandoval, supra, 41Cal.4th 825, 838; see also People v. Black, supra, 41 Cal.4th at p. 813.)
Appellant acknowledges his argument that his consecutive sentences violated Cunningham has been rejected in People v. Black, supra, 41 Cal.4th at pp. 821-823.
DISPOSITION
The judgment is affirmed.
We concur: WILLHITE, J., SUZUKAWA, J.