Opinion
B184420
4-23-2008
THE PEOPLE, Plaintiff and Respondent, v. KELVIN EUGENE SIMS, Defendant and Appellant.
Vanessa Place, under appointment by the Court of Appeal; and Fay Arfa for Defendant and Appellant. Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Beverly K. Falk, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Kelvin Eugene Sims appeals from the judgment entered following a jury trial that resulted in his convictions of forcible rape (Pen. Code, § 261, subd. (a)(2); counts 1, 2, 4 & 6) forcible oral copulation (§ 288a, subd (c)(2); counts 5 & 7); first degree residential robbery (§ 211; counts 10 & 11); first degree residential burglary (§ 459; count 13); and misdemeanor battery (§ 242; count 3); jury findings that he personally used a firearm (§ 12022.53, subd. (b)) during the rape and oral copulation crimes, which were committed during a burglary with the intent to commit such crimes (§ 667.61, subds. (a) & (d)); and that during the commission of the robberies and burglary, he also personally used a firearm (§ 12022.53, subd. (b)); and court findings that he had suffered a prior serious felony conviction (§ 667, subd. (a)) that also qualified as a strike under the "Three Strikes" law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)).
All further section references are to the Penal Code unless otherwise indicated.
A mistrial was declared on count 14; and counts 8 and 9 were dismissed (§ 1385).
Appellant was sentenced to prison to an aggregate determinate term of 163 years on counts 2, 4 through 7, 10, and 11; and to an indeterminate term on count 1 of 50 years, or double the 25-year minimum term, to life, plus the 10-year personal firearm use enhancement (§ 12022.53, subd. (b)). He was also ordered to pay a single court security fee in the amount of $20. (§ 1465.8, subd. (a)(1).)
He was sentenced to serve a concurrent six-month term in county jail on count 3.
Appellant contends admission of his involuntary statement to law enforcement violated both his rights to remain silent and to a jury trial and his guarantee of due process (U.S. Const., 5th, 6th & 14th Amends.). He contends he was deprived of due process and his rights to a fair jury trial and to present a defense (U.S. Const., 6th & 14th Amends.), because the trial court excluded the evidence of the defense toxicologist. He also contends his right to a fair jury trial and his guarantee of due process were abridged, because the trial court: (1) admitted the opinion of a nurse that appellant forcibly raped the victim; (2) refused to grant a mistrial after the officer witness blurted out appellants parole status; (3) erroneously instructed the jury as to the elements of the allegations under the One Strike law (§ 667.61); and imposed full consecutive upper term sentences on counts 2 and 4 through 7, in violation of Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi ).
Appellant further contends the trial court violated section 1170.1, by imposing a full term consecutive sentence on his residential robbery conviction in count 10. He contends the court also erred in failing to stay the 10-year firearm enhancement (§ 12022.53, subd. (b)) on counts 2, 4, 5, 6, and 7, because only one additional term of imprisonment was authorized (§ 12022.53, subd. (f)), and the multiple punishment bar of section 654 mandates that the enhancements on these counts be stayed.
By letter, this court invited the parties to address these issues: (1) Did the trial court commit unauthorized sentencing error by failing to pronounce sentence on count 13; (2) If so, must the matter be remanded with directions to impose the appropriate sentence on count 13; (3) What sentence would be appropriate; (4) Must this sentence be stayed under section 654; (5) Did the court commit unauthorized sentencing error by imposing a single five-year prior serious felony enhancement (§ 667, subd. (a)) and a single $20 court security fee (§ 1465.8, subd. (a)(1)). We have received their responses.
Based on our review of the record and applicable law, we reverse appellants sentence only with respect to the absence of a sentence on count 13 and a second five-year prior serious felony enhancement and the omission of the court to impose a $20 court security fee on each of appellants 10 convictions in the total fee amount of $200. We remand the matter to the trial court to pronounce sentence on count 13; impose another prior serious felony enhancement; impose the mandated court security fee amount; and conduct further proceedings consistent with the views expressed herein. In all other respects, we affirm the judgment.
BACKGROUND
We view the evidence in the light most favorable to the People and presume the existence of every fact the trier could reasonably deduce from the evidence that supports the judgment. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
Briefly, since the sufficiency of the evidence is not challenged, this is what transpired on that rainy and dark afternoon of February 12, 2003. Sixty-year-old Victoria M., who had just donned a nightgown, and Pedro G., her husband, sat down to have coffee and bread in their apartment on Redondo Beach Boulevard at Vermont Avenue. Although the metal security gate was closed, the wood door was ajar. Appellant knocked and asked whether Pedro had anything to enable him to pour gasoline into his car. After receiving no response, appellant left.
Appellant returned about ten minutes later and knocked louder. Pedro approached and asked what happened. Pulling out a gun, appellant pointed it at Pedro and demanded he open the door. Pedro complied. While pointing the gun at Pedro, appellant asked who else was there. After Pedro said only he and his wife, appellant grabbed their cordless telephone and shoved it into his sweatshirts front pocket. Appellant then took Pedro at gunpoint to where Victoria sat and grabbed her arm. While pointing the gun at Pedro, he walked the couple to the master bedroom area and checked that the windows were closed.
Appellant asked about money, and Pedro replied he did not have any. He next asked who Victoria was to Pedro. After he said she was his wife, appellant looked at her up and down, shut Pedro inside the other of the two bedrooms, and warned him not to make any noise or move. Pedro complied out of fear for Victorias safety, although he heard drawers opening and closing.
After disposing of Pedro, appellant grabbed Victoria, pointed the gun at her head, and took her into the master bedroom. Victoria did not resist because Pedro told her not to and she feared appellant would kill her. Once inside, appellant with gun still in hand demanded jewelry and money. When she responded that she had nothing, he placed the gun to her head and told her to open the drawers of her chest, which she did.
Afterwards, appellant instructed Victoria to undress and lie down on the bed. She complied. He approached Victoria on the bed and spread apart her legs, which caused her pain. After he removed his shorts, he began putting his penis inside her vulva. Victoria asked him twice to be careful and explained she had a broken pelvis. He then made Victoria retrieve a jar of Vaseline from the dresser and put Vaseline on his penis. She repeated her admonition and explanation after he achieved penetration of her vagina. He simply responded twice that it was okay and did not stop although Victoria told him it hurt her.
When appellant finished, he made Victoria rise from the bed. She put on her gown over his protest. Appellant then took Victoria back to the bedroom where he had left Pedro about 35 to 45 minutes earlier. While holding her arm, appellant opened the door, told Pedro to follow, and put Pedro in the bathroom, telling him not to move as appellant shut the door.
Once inside this bedroom, appellant had Victoria remove her clothes and lie down. Putting the gun near her head, appellant placed his penis in her vagina. Upon their return to the master bedroom, appellant licked Victorias breast and placed his penis in her mouth and forced her to perform oral sex on him.
When he had moved his penis towards her anus once in each bedroom, Victoria said, " `Ow, " both times, and appellant did not put his penis inside her anus. During these incidents Victoria continued to explain about her pain due to her broken pelvis but she was frozen from fear appellant might kill her and her husband.
At some juncture, appellant allowed Victoria to get dressed and compelled her to open the drawers again. After failing to find anything of value, he took about $180 to $280 from Victorias purse and then took her keys.
Appellant retrieved Pedro from the bathroom where he had been for about 20 minutes, pushed him on his knees onto the bed, and caused Victoria to kneel on the bed. After tying the hands of each with bathrobe belts, appellant pulled both from the bed, put them in the bathroom and warned them not to leave or make any noise.
About an hour after hearing noises that sounded like the opening and closing of the refrigerator and pots and pans, the couple observed appellant carrying and eating from a cup of chicken noodle soup as he returned to the bathroom. He warned them not to move and tried to close the door, which remained slightly ajar. A few minutes later, appellant pulled Victoria outside and asked her about the keys, which he then retrieved from the bedroom.
After appellant returned Victoria to the bathroom, she heard footsteps around the apartment. Appellant approached the bathroom and told the couple not to move. Victoria thought appellant left the apartment about 30 to 45 minutes after the last sexual assault on her. Pedro estimated appellant was there for about two and a half to three hours.
Marcrina Ruiz and her family lived on Redondo Beach Boulevard next door to the apartment complex where Victoria and Pedro resided. That same afternoon, appellant knocked on the Ruiz door and asked to borrow a telephone when she partially opened the door. Holding a cordless phone, he explained it did not work. Ruiz asked V.L., her 10-year-old daughter, to retrieve the phone.
While V.L. went to do so, appellant pushed the door open completely, pushed Ruiz inside, and displayed a gun. When Ulises, Ruizs four-year-old son approached appellant, Ruiz hit appellants hand, causing the gun to fall to the ground. After Ruiz with Ulises in her arms ran outside screaming for help, appellant retrieved the gun and ran.
On February 13, 2003, the next day, at about 8:45 a.m., police observed appellant sitting in a vehicle, both of which matched the descriptions for a rape suspect, at a stop sign less than a mile from the rape location. When officers approached, appellant sped away and a chase ensued. At one point, appellant parked, exited his car, and went inside a nearby laundromat. Angel Lopez, an employee, observed appellant dropping something in the corner but did not know what it was.
Appellant then exited the laundromat. Lopez directed the police to that corner where an officer retrieved a loaded semi-automatic handgun. When arrested, appellant did not appear to be under the influence of "PCP."
During separate field show-ups, Pedro and Victoria, who began crying, each identified appellant as the perpetrator and noted he was still wearing the same clothes. They also identified him at trial. Subsequently, Ruiz and V.L. separately identified appellant from a photographic display and also identified him at trial.
In a videotaped police interview on the afternoon of his arrest, appellant made incriminating statements implicating him in the incident involving Victoria and Pedro.
Expert evidence was presented to show the DNA samples from Victoria and appellant obtained from a swab of Victorias left breast were consistent with the transfer of DNA to a womans breast by licking it. Expert evidence also was admitted to explain the absence of DNA on Victorias hand where appellant had ejaculated.
Appellant, who did not testify, presented expert evidence to show that if he had ejaculated on Victorias hand, one would expect to find his DNA on her hand and that the absence of semen and sperm from Victorias vaginal swab was inconsistent with appellant having vaginal intercourse with her. His expert opined there would have been more epithelial cells than those found on Victorias breast if appellant had licked it. She also opined there should have been evidence of Victorias DNA on appellants shorts and his semen and/or sperm on the penis swab.
Appellant relied on a mistaken identity defense with regard to the Ruiz incident.
DISCUSSION
1. Appellants Statement Properly Admitted
Appellant contends admission of his involuntary statement to law enforcement violated both rights to remain silent and to a jury trial and his guarantee of due process. We disagree. He has failed to demonstrate his statement was involuntary.
During a pretrial hearing, appellant sought to suppress a transcript of and the actual videotape of his police statement. Although acknowledging proper advisements and waivers had been obtained (Miranda v. Arizona (1966) 384 U.S. 436 (Miranda), he argued his statement was the product of "clever softening up" by Detective Rubalcava, and thus, not voluntarily given under People v. Honeycutt (1977) 20 Cal.3d 150 (Honeycutt).
During a pre-Miranda interview, Detective Rubalcava interviewed appellant for the purpose of obtaining biological information for a police department administrative form. She gave appellant pieces of chocolate and offered him a beverage beforehand for the sake of comfort. One of his hands was handcuffed to his chair during the interview. The prosecutor argued Honeycutt was factually distinguished and offered authorities contrary to appellants claim.
In denying appellants suppression motion, the trial court found Rubalcava credible and that her friendly overtures were her attempt "to make the encounter as comfortable as possible." The court further found that based on the totality of the circumstances, appellants statement was not obtained through any intrusion on his free will. The court pointed out there was no discussion or disparagement of the victim.
"When the waiver results from a clever softening-up of a defendant through disparagement of the victim and ingratiating conversation, the subsequent decision to waive without a Miranda warning must be deemed to be involuntary for the same reason that an incriminating statement made under police interrogation without a Miranda warning is deemed to be involuntary." (Honeycutt, supra, 20 Cal.3d at pp. 160-161.)
These are not our facts. As the trial court pointed out, a reasonable inference arises that Rubalcavas offer of a beverage and gift of chocolate pieces were simply for appellants comfort rather than to soften him up where no discussion or disparagement of Victoria occurred. (Cf. In re Aven S. (1991) 1 Cal.App.4th 69, 75 [lack of food potential coercive factor].)
Moreover, the subject pre-Mirandized videotaped interview is a far cry from the lengthy 30-minute unrecorded and pre-Miranda interview in Honeycutt. (See, e.g., People v. Michaels (2002) 28 Cal.4th 486, 511 [distinguishing Honeycutts unrecorded 30-minute pre-Miranda interview discussing mutual acquaintances, past events, and then the victim]; People v. Gurule (2002) 28 Cal.4th 557, 602 [distinguishing Honeycutt where victim not discussed and no evidence suggesting defendants free will overborne by any small talk); People v. Kelly (1990) 51 Cal.3d 931, 954 [single perhaps ill-advised police comment not equivalent to Honeycutt where police "deliberately engaged the suspect in an unrecorded 30-minute pre-Miranda conversation, discussing mutual acquaintances, past events and finally the victim"].)
2. No Improper Curtailment of Defense Shown
Appellant contends he was deprived of due process and his rights to a fair jury trial and to present a defense, because the trial court excluded the drug evidence of the defense toxicologist. His contention is unsuccessful. The record reflects exclusion of such evidence was well within the discretion of the trial court.
At a pretrial hearing, the prosecutor objected to any defense toxicology evidence on the grounds of late discovery and the absence of any witness with personal knowledge that appellant had taken drugs on the day of the incidents. He argued any conclusion appellant took drugs on the day of the incident would be speculative if based on testimony about his ingesting drugs on a prior date. No ruling was made at this time.
Appellants counsel subsequently argued the defense should be allowed to present a toxicologist to address "the effects of a particular drug on a particular person"; "the dormancy of a particular drug"; and "among other things, the ability to quantify or qualify that drug had [if] a blood sample [had] been taken."
Acknowledging the need for a foundation to be laid that appellant had used PCP or was under its influence, counsel offered three witnesses, including Kesha Russell, to overcome a foundation objection. He argued Russell, a drug rehabilitation worker with the California Department of Corrections (DOC), had observed appellant on numerous occasions ingest drugs and defense toxicology experts could testify PCP could and often did remain dormant in an individuals system for days, if not weeks, and then released into the system through stress, among other circumstances. This issue was not resolved at that time.
The defense motion to allow evidence on appellants PCP usage was renewed following preliminary testimony in the Peoples case-in-chief. On the timeliness issue, appellants counsel argued the delay in making the motion was attributable to the fact he did not speak with Russell until after his recent discovery the blood sample taken after appellants arrest was in the form of a blood card, and thus, the sample was not usable to detect trace evidence of drugs. He added that he had not turned over any paperwork, because he had none.
The prosecutor objected to admission of such evidence. He argued Russell, an ex-girlfriend or close acquaintance of appellant, would testify simply that although she did not see appellant use PCP around the time of the incidents, she was aware of his chosen drug and appellants behavior was consistent with someone on PCP. He indicated his understanding was the defense intended to present the evidence of "a toxicology expert, Mr. J. Williams[,]" who would "testify to when a person is on PCP, what their reaction or behavior will be."
The trial court expressed its view that Russells testimony would be the predicate for such toxicology evidence. Counsel responded by pointing to indicia of Russells PCP expertise and her first hand observations of appellant. He asserted Russell, a prior drug addict or user with a family history of drug usage, had worked for the DOC in its drug rehabilitation program and previously also had worked for a group in Tarzana which focused on drug usage and rehabilitation.
He stated that through personal observations, Russell was familiar with appellants usage of PCP as his drug of choice. In December 2002, she had tried unsuccessfully to obtain a bed for him in a detoxification center. Also, during four to six weeks prior to appellants arrest, Russell saw appellant almost every day at her apartment and on these occasions, she would smell ether, the odor associated with PCP, and she also observed appellant exhibiting erratic behavior, including "big highs and lows" and spells of paranoia.
The trial court asked when Russell last made such observations as they related to the subject charges. Appellants counsel responded that Russell was not altogether sure when she last saw appellant but she believed it might have been a day or two before his arrest. He added she would testify appellant was intoxicated every day she saw him. Counsel admitted the two were not exactly on good terms at that time, because appellant had not been working and was running around with other women. He referred again to the anticipated testimony of expert J. Williams who would testify that PCP could lie dormant and later result in a "flashback," which might be triggered by a stressful situation or excitement. Counsel argued appellants statement to police about having smoked a "joint" was consistent with ingestion of PCP in connection with his marijuana usage.
The prosecutor responded the defense did not disclose Russells job function or establish her expertise. He argued erratic behavior arising from PCP was not sufficient to show how PCP affected specific intent and that the defense had failed to make an offer of proof on how PCP affected specific intent. He pointed out appellant also told police he had not used PCP since 1999 and explained the "joint" appellant had referred to was marijuana and added there were no notations on the police report about appellant being under the influence or acting erratically. Also, appellant appeared calm in the videotape. He reiterated that appellant had failed to show Russell was qualified to testify that based on appellants behavior, he was using PCP and argued appellants statements to her were hearsay.
The trial court sustained the prosecutors objection to the desired line of inquiry and ruled the proffered evidence was inadmissible. The court found there was insufficient foundation demonstrating appellant was intoxicated on or about the day of the incident. The court explained appellants past intoxication was not determinative of whether he was intoxicated on the day of the incident and his admission to having smoked a "joint" that day was not tantamount to an inference he was intoxicated then. The court further found the speculative nature of the offered evidence due to the lack of this nexus might potentially mislead and misdirect the jury, and thus, this evidence should be excluded for lack of foundation and because its admission would be substantially more prejudicial than probative (Evid. Code, § 352).
When appellants counsel brought up dormancy again, the trial court indicated it had considered dormancy but found no indicia that it existed here. Rather, "[t]here are too many variables, and there is nothing specific as to the issue of intoxication on the date in question." The court invited counsel to bring up anything else he might have.
During cross-examination of Nicolas Garces, the arresting officer, appellants counsel elicited his testimony that appellant had told him he had been smoking a "joint"; Garces had not given appellant any drug recognition test and did not know whether or not appellant was under the influence of drugs when arrested.
On redirect examination, Garces testified he did not find any "joint" on appellant or when searching appellants car. Garces testified he had been trained and educated about and had experience dealing with persons under the influence of drugs, including PCP. Based on his training and experience, Garces opined appellant did not appear to be under the influence when he was arrested.
On re-cross-examination, counsel elicited Garcess testimony that symptoms of PCP use may include extremely erratic behavior, fits of violence, and an almost zombie-like appearance along with rapid swings between rational and irrational behavior. He further testified some signs of PCP influence might continue the day after ingestion of PCP.
Garces testified on re-redirect examination that during his undercover narcotics officer experience, Garces never heard of PCP being referred to as a "joint." He reiterated that he saw no signs of PCP influence when he arrested appellant, who did not smell of any odor associated with PCP.
At this juncture, appellants counsel again raised the issue of allowing Williams to testify on the characteristic symptoms or signs of PCP intoxication. This time he argued the People, through Garcess testimony, opened the door to admission of Williamss testimony. The prosecutor objected that appellant should not be permitted to initiate this line of inquiry and then argue the People had opened the door. The trial court did not rule at this time.
At the conclusion of the Peoples case-in-chief, appellants counsel indicated Williams was available. The trial court found there was insufficient foundation to allow his testimony on PCP intoxication as to this case, because little or no evidence of appellants intoxication during the incident was shown. The court left open the possibility that it might allow Williams to testify if appellant or someone else established appellants intoxication.
Counsel moved the defense should be permitted to present the testimony of a witness corresponding to Garces, a PCP witness called by the People, who "open[ed] the door." He argued the inference of possible signs of intoxication could be drawn based on appellants unusual behavior in committing the charged crimes. The People objected, pointing out during the direct examination of Garces, no mention had been made of drugs, including PCP. Rather, it was appellants raising of the PCP intoxication issue during cross-examination that triggered the prosecutors attempt to clarify Garcess testimony on redirect examination. He also discounted the argument appellants behavior during the crimes reflected his usage of PCP.
The trial court ruled, as a matter of law, appellants proffer was inadequate, noting the absence of evidence to support appellants position. The court also pointed out once the defense opened up a line of inquiry about PCP, it was proper for the prosecution to offer limited testimony as to what Garces observed on the day following the commission of the charged crimes. The court specifically found the evidence sought to be adduced was irrelevant. The court also found its admission would be prejudicial in that this evidence was "collateral to the issues at hand [and] is based upon zero or the most minute foundation. It will also cause the jury to engage in rampant speculation . . . ." The court commented that if evidence were presented to establish the requisite foundation, the defense would be in a different posture.
"Evidence of voluntary intoxication is inadmissible to negate the existence of general criminal intent. [Citation.]" (People v. Atkins (2001) 25 Cal.4th 76, 81.) In contrast, evidence of voluntary intoxication is relevant to negate the existence of specific intent. (People v. Hood (1969) 1 Cal.3d 444, 445-459; accord, Atkins, supra, at p. 81.)
Appellant contends the trial court abused its discretion in refusing to allow him to present evidence of his voluntary intoxication due to his PCP ingestion. There was no abuse. The trial court properly concluded appellant had failed to present a sufficient factual foundation for admission of such evidence. His showing was based on speculation, not evidence. (See, e.g., People v. Waidla (2000) 22 Cal.4th 690, 735 [" `[S]peculation is not evidence, less still substantial evidence "].)
In re Avena (1996) 12 Cal.4th 694, is illustrative of appellants speculative showing. In that case, our Supreme Court concluded "[t]he glaring omission is any credible evidence that [petitioner] actually took some PCP on the night of the crimes. Moreover, there is no evidence showing how the drug affected him that night. Standing in the place of such evidence is petitioners expert opinion evidence that residue amounts of PCP stored in petitioners body tissues through weeks of chronic drug abuse, perhaps combined with more recent ingestion of the drug, may have caused him to behave in a violent manner, and that this combination may have so affected his mental faculties such that he could not maturely and meaningfully reflect on his criminal actions.
"Such a conclusion is contradicted by petitioners seemingly goal-directed behavior that night, which exhibited a much higher degree of mental functioning than [his experts] would have us believe." (In re Avena, supra, 12 Cal.4th at p. 725.)
Similarly, here no credible evidence was presented that appellant was or might have been intoxicated due to PCP ingestion. He did not tell police that he had ingested PCP on the day of the underlying incidents; rather, he told police he had not taken PCP since 1999. Russells proffered testimony was not material, because she had not observed appellant taking any PCP on or around that day. Although during the four to six weeks before his arrest, Russell noticed the smell of ether, an odor associated with PCP when appellant visited her apartment almost daily, at which time he exhibited erratic behavior, there was no offer of testimony by Russell that she personally saw appellant ingest PCP and in what amount. Additionally, the behavior appellant displayed was not consistent with PCP ingestion. His conduct in fact reflected a coldly calculating mind, weighing and measuring his actions beforehand. He even had the presence of mind to make free of the victims kitchen to fix himself a cup of soup, which he held and ate from while admonishing the victims not to move before he left their apartment.
3. Admission of Nurses Opinion Not Abuse
Appellant contends the trial court committed prejudicial error by admitting the opinion of a nurse that Victorias genital injuries were the product of forcible rape, which was a matter for the jury, not an expert, to determine. We find admission of this testimony was not an abuse.
Jan Hare, a sexual assault nurse examiner, examined Victoria following the sexual assaults. Hare found injuries to her mouth and genital area and opined that these injuries were consistent with forcible sexual assault in view of the history Victoria had provided and Hares own examination. She opined that Victorias injuries were quite extensive when compared to injuries suffered by other victims she had examined and that it was unlikely that these injuries were caused by a single penetration in light of the fact Victoria had suffered injuries in different areas of her body. Hare testified she was unable to determine the instrument that cause the injuries or who the perpetrator was.
Initially, we conclude appellant forfeited his claim of error by failing to preserve it with an objection on the ground he now urges for the first time on appeal. His objection to a question about whether Victorias injuries were "pretty extensive" compared to others Hare had seen and his objections on the grounds of lack of "relevance," "lack of foundation" and "[c]alls for speculation" cannot serve as substitutes for this unrelated and new objection. "A general objection to the admission or exclusion of evidence, or one based on a different ground from that advanced at trial, does not preserve the claim for appeal." (People v. Marks (2003) 31 Cal.4th 197, 228.)
Also untenable is appellants claim the admitted evidence deprived him of due process of law. "Application of the ordinary rules of evidence, as the trial court did here, does not impermissibly infringe on a defendants right to present a defense. [Citation.]" (People v. Mincey (1992) 2 Cal.4th 408, 440.)
Turning to the merits, we conclude that, contrary to his claim, Hares expert opinion that Victorias injuries were consistent with forcible sexual abuse did not impermissibly invade the province of the jury by usurping their role as the finder of fact. This opinion was well within the parameters of competent expert witness testimony, because it did not usurp the jurys function to determine whether these injuries were in fact the result of forcible sexual abuse. Rather, Hares opinion simply served to provide guidance to the jury. (See, e.g., People v. Frederick (2006) 142 Cal.App.4th 400, 412.)
4. Brief Parole Status Remarks Did Not Warrant Mistrial
Appellant contends the trial court committed reversible error by refusing to grant a mistrial after the officer witness blurted out appellants parole status. We conclude no mistrial is warranted based on these brief remarks which were not elaborated upon by the witness or the prosecutor and which the trial court admonished the jury to disregard.
Garces, appellants arresting officer, testified that when asked if he were on parole or probation, appellant responded, "Yes." Outside the jurys presence, appellants counsel moved for mistrial, which the trial court denied. In the presence of the jury, the court sustained the defense objection, ordered stricken the reference to any recent statements of appellant, and admonished the jury to disregard Garcess last statements.
When testimony resumed, the prosecutor asked Garces about what he did. Garces responded, "As my partner detained the defendant or suspect, because of his lack of I.D. and him being on parole." At this point, the prosecutor interrupted with this question, "Sir, just what, if anything, did you do?" As appellants counsel began to speak, the trial court interrupted, announced it considered the defense to have objected; sustained the objection; and struck Garcess response. Appellants counsel stated he was renewing his mistrial motion.
Outside the jurys presence, the trial court expressly admonished Garces against mentioning appellants parole or probation status and threatened to grant a mistrial if he did it again. The court denied the renewed mistrial motion. Afterwards, the court informed the jury both the question and response were stricken and admonished the jury to disregard both.
Prior to calling his final witness, appellants counsel made a third mistrial motion based on the references to his parole status in front of the jury. The trial court once more denied the motion and again sustained the defense objection; struck the offending statement; and admonished the jury to disregard it.
References to appellants parole status, which were irrelevant, were error but nonprejudicial. The prosecutor did not attempt to capitalize on the isolated, brief remarks about appellants parole status. Also, the trial court expressly admonished the jury to disregard these remarks. "Jurors are presumed to understand and follow the courts instructions. [Citation.]" (See, e.g., People v. Holt (1997) 15 Cal.4th 619, 662.)
5. No Instructional Error on One Strike Allegation Elements
Appellant contends the trial court misinstructed the jury as to the elements of the One Strike allegations (§ 667.61). There was no instructional error.
In pertinent part, the information pleaded the One Strike allegation that appellant committed the offenses charged in counts 1, 2, 4, 5, 6, and 7, during the commission of a burglary as defined in then section 460, subdivision (a).
Subsequent to discussion with counsel on instructions, and without objection, the trial court instructed the jury pursuant to CALJIC No. 14.51, as modified, that burglary includes entry into a separate bedroom within an inhabited dwelling with the intent to steal or commit robbery, rape, and/or forcible oral copulation. The court further instructed the offense "was committed during the commission of a first degree residential burglary when the defendant had the specific intent to commit forcible rape and/or forcible oral copulation, within the meaning of . . . Section 667.61(a)(c)(d)(4)."
Appellant contends that giving this instruction was prejudicial error, because it allowed the jury to find the allegation true although the evidence supports an inference that he may not have formulated the intent to commit the sex offenses until after he entered the apartment. He points out that according to Pedro, appellant did not know of Victorias presence until after he went inside the apartment.
This contention is unsuccessful. As our Supreme Court explained, a burglary is committed when the defendant entered a bedroom with the requisite intent although he did not form the specific intent before the initial entry into the single family residence. (People v. Sparks (2002) 28 Cal.4th 71, 73-75, 87.) It therefore was incumbent on appellant to request his desired modification of the correct instruction or a clarifying instruction. Having failed to do so, appellant has forfeited and waived any claims of error regarding the One Strike burglary allegation instruction. (See, e.g., People v. Dennis (1998) 17 Cal.4th 468, 514; People v. Kelly (1992) 1 Cal.4th 495, 535.)
6. Consecutive Full Upper Term Sentences Not Error
Appellant contends that imposition of consecutive full upper term sentences on counts 2 and 4 through 7, violates Blakely/Apprendi. There was no error.
We find unpersuasive the Peoples claim that appellant forfeited his Blakely/Apprendi upper term claim by failing to object on this basis until after the trial court had imposed sentence and was about to calculate an award of credits. At the time appellant was sentenced, the controlling law was enunciated in People v. Black (2005) 35 Cal.4th 1238 (Black I) wherein our Supreme Court held that the states Determinate Sentencing Law (DSL) did not violate a defendants federal constitutional right to a jury trial by authorizing the trial judge to make factual findings that would subject a defendant to a possible upper term sentence. In Cunningham v. California (2007) 549 U.S. 270 (Cunningham), the United States Supreme Court overturned Black I.
Subsequently, our Supreme Court concluded the absence of an objection did not forfeit a defendants claim he was entitled to a jury trial on the factors justifying an upper term sentence where such objection would have been futile for the reason that "Black I was binding on the lower courts until it was overruled by the high court. [Citation.]" (People v. Sandoval (2007) 41 Cal.4th 825, 837, fn. 4.)
Appellant was sentenced on July 8, 2005. An objection would have been futile, because Black I was decided on June 20, 2005, and Cunningham was not decided until 2007. The absence of an objection therefore did not forfeit for appeal appellants constitutional claim of error.
We now resolve appellants Blakely/Apprendi contentions on the merits adversely to his position. Blakely/Apprendi bars the imposition of an aggravated term, e.g., upper term, where it is based on facts not found true by a jury and not based on a recognized exception.
"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 (2007) 41 Cal.4th 799, 818 (Black II).) "Under Californias determinate sentencing system, the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term. [Citation.] Therefore, if 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.[]" (Ibid., fn. omitted.)
The trial court selected the upper term on counts 2 and 4 through 7 based on separate and independent aggravating circumstances enumerated in rule 4.421 of the California Rules of Court. Among these circumstances are: (1) appellant "has served a prior prison term" (rule 4.421(b)(3)); and (2) appellants prior "performance on probation or parole was unsatisfactory" (rule 4.421(b)(5)). We conclude these two aggravating circumstances constitute qualifying recidivist facts arising from a prior conviction suffered by appellant and, as such, are sufficient, singularly or together, to support an upper term choice on the subject sex offense counts.
All further rule references are to the California Rules of Court.
It cannot be gainsaid that a defendants service of a prior prison term is a legal consequence that arises from his or her having suffered a prior conviction. (See, e.g., People v. Thomas (2001) 91 Cal.App.4th 212, 222-223 [recognizing the Almendarez-Torres exception not limited to "the fact of a prior conviction" but extended to such other legal consequences as whether defendant had been required to serve time in prison]; see also, Black II, supra, 41 Cal.4th 799, 819, citing with approval Thomas at pages 220-223 for the proposition "[the exception recognized in Apprendi for ` "the fact of a prior conviction" permits a trial court to decide whether a defendant has served a prior prison term].") Similarly, a finding that a "defendants prior performance on probation or parole was unsatisfactory" necessarily implicates the fact defendant suffered a prior conviction that resulted in his or her placement on probation and/or parole.
We conclude the record contains ample evidence to support both circumstances here. The probation report reflects that on April 28, 2000, appellant suffered a felony conviction for violating section 69 (obstructing or resisting executive officer) and subsequently was sentenced to prison for 16 months and on January 9, 2002, he was in the custody of CDC for violation of parole.
The trial court was entitled to rely on these recitals in the probation report, which were not challenged by appellant at trial, in finding the above two aggravating circumstances. (See, e.g., Black II, supra, 41 Cal.4th at pp. 818-819, fn. 7 [trial court presumed to have read and considered probation report and "[i]ts conclusion that defendants prior convictions were numerous or of increasing seriousness is supported by the probation report, whose recitation of defendants criminal history was not challenged by defendant in the trial court"]; People v. Grayson (2007) 155 Cal.App.4th 1059, 1070 ["As in Black II, appellant did not exercise his right before the sentencing hearing to challenge the evidence in the probation report of his prior juvenile adjudications, although he knew or should have known the trial court would rely on the report in deciding his sentence"].)
We now turn to appellants remaining contention, which also is unsuccessful. Contrary to his claim, the trial courts imposition of consecutive sentences on counts 2 and 4 through 7, does not violate Blakely/Apprendi on the ground the trial court, rather than the jury, found true the respective sex offenses were committed on separate occasions.
Full consecutive sentences are mandated for certain enumerated sexual offenses committed against "the same victim on separate occasions." (§ 667.6, subd. (d).) Where such circumstances are not present, the trial court nonetheless has discretion to impose full consecutive sentences for such offenses. (§ 667.6, subd. (c).)
"[¶] . . . [¶] In determining whether crimes against a single victim were committed on separate occasions under this subdivision, the court shall consider whether, between the commission of one sex crime and another, the defendant had a reasonable opportunity to reflect upon his or her actions and nevertheless resumed sexually assaultive behavior. Neither the duration of time between crimes, nor whether or not the defendant lost or abandoned his or her opportunity to attack, shall be, in and of itself, determinative on the issue of whether the crimes in question occurred on separate occasions." (§ 667.6, subd. (d).)
At the time of appellants sentencing, former subdivision (c) of section 667.6 in pertinent part provided: "In lieu of the term provided in Section 1170.1, a full, separate, and consecutive term may be imposed for each violation of . . . paragraph (2) . . . of subdivision (a) of Section 261 [forcible rape], . . . or oral copulation in violation of Section . . . 288a by force . . . whether or not the crimes were committed during a single transaction."
At present, subdivision (c) of section 667.6 provides: "In lieu of the term provided in Section 1170.1, a full, separate, and consecutive term may be imposed for each violation of an offense specified in subdivision (e) if the crimes involve the same victim on the same occasion. A term may be imposed consecutively pursuant to this subdivision if a person is convicted of at least one offense specified in subdivision (e)."
Appellant contends Apprendi/Blakely applies to a decision to impose consecutive sentences, and thus, the trial court was foreclosed from imposing consecutive sentences on counts 2 and 4 through 7 in the absence of a factual finding by a jury that the crimes were committed on separate occasions. We disagree.
The trial court initially found the forcible rapes in counts 1, 2, and 4, involved "a single victim on completely separate and distinct occasions" within the meaning of the mandatory consecutive sentencing provision of subdivision (d) of section 667.6.
The court then elected to make "a separate, independent sentencing decision on counts 1, 2, and 4 pursuant to . . . section 667.61[, subdivision] (c), as well as under counts 5 [forcible oral copulation], 6 [forcible rape], and 7 [forcible oral copulation]" rather than "the more lenient provisions of . . . section 1170.1." After setting forth the factors for its decision, the court announced: "So the court will follow the sentencing choice under [section] 667.61[, subdivision] (c), not only as to counts 5, 6 and 7, but also as backup to my previous decision as to counts 1, 2, and 4. [Appellant] will be sentenced to serve consecutively full, high terms as to all of the sex offenses in this case."
The court relied on the factors, among others, that appellant "committed repeated acts of brutal sexual violence against a particularly vulnerable, elderly, infirm woman with a broken pelvis"; "[t]he crimes and objectives . . . were predominantly independent"; "they were separate and distinct acts of violence or threats of violence independent of each other"; and "the crimes were committed at different times or separate places[.]"
Initially, we point out our Supreme Court already has held a sentencing decision to impose consecutive terms of imprisonment does not implicate the 6th Amendment right to a jury trial. (Black II, supra, 41 Cal.4th 799, 820; Black I, supra, 35 Cal.4th at pp. 1262-1264.)
Moreover, the decision to impose full consecutive sentences under section 667.6, subdivision (c), "generally require[s] a statement of a reason[.]" (Cal. Rules of Court, rule 4.406(b)(6).) In giving a reason, the trial court is simply required to "state in simple language the primary factor or factors that support the exercise of discretion." (Cal. Rules of Court, rule 4.406(a).) We note rule 4.406(a), which governs the making of a statement of reasons for sentence choices neither uses the words "fact" or "finding," nor imposes a standard of proof. Unlike the rules governing the determination of aggravating facts for an upper term choice, no rules in the California Rules of Court set forth any standards for determining factor or factors for deciding whether or not to impose a full consecutive sentence under section 667.6, subdivision (c). A decision to impose a full consecutive sentence under section 667.6, subdivision (c), therefore is entirely discretionary with the trial court and does not necessitate any factfinding by the jury beyond the facts contained in the verdict itself.
7. Count 10 Sentence Not Violative of Section 1170.1
Appellant contends the trial court violated section 1170.1, by imposing a full consecutive sentence on his residential robbery conviction in count 10. We disagree. The fallacy of his position lies in his premise that he had been already sentenced on another count under the Determinate Sentencing Law (DSL). He was not. His sentences on counts 1, 2, and 4 through 7, were imposed under the Three Strikes laws, and thus, were not available for calculating his sentence on count 10.
The trial court thus correctly calculated appellants sentence on count 10 as follows: The court selected the six-year upper term, which was doubled under the Three Strikes law to 12 years and then the court imposed the mandatory 10-year firearm use enhancement (§ 12022.53, subd. (b)) for a 22-year total sentence.
8. No Stay of Firearm Use Enhancements Proper
Appellant contends the court erred in failing to stay the 10-year firearm use enhancement (§ 12022.53, subd. (b)) on counts 2, 4, 5, 6, and 7, because only one additional term of imprisonment was authorized (§ 12022.53, subd. (f); (§ 12022.53(f))) and the multiple punishment bar of section 654 mandates that the enhancements on these counts be stayed. We disagree.
We note appellant misapprehends the significance of section 12022.53, subd. (f). This provision mandates that "[i]f more than one enhancement per person is found true under this section, the court shall impose upon that person the enhancement that provides the longest term of imprisonment." (§ 12022.53, subd. (f), italics added.) The respective enhancements under subdivisions (b), (c), and (d) of section 12022.53, set forth alternative, increasingly harsher punishment corresponding to a defendants higher degree of culpable conduct. The 10-year enhancement under subdivision (b) is triggered where the defendant "personally uses a firearm" during the commission of an enumerated felony and "[t]he firearm need not be operable or loaded for this enhancement to apply." (§ 12022.53, subd. (b).) The harsher 20-year enhancement under subdivision (c) applies where the defendant "personally and intentionally discharges a firearm" during the crime (§ 12022.53, subd. (c)), while the harshest 25 years to life enhancement under subdivision (d) applies where the defendant "personally and intentionally discharges a firearm and proximately causes great bodily injury . . . or death[.]" (§ 12022.53, subd. (d).)
Section 12022.53, subd. (f) further mandates "[o]nly one additional term of imprisonment under this section shall be imposed per person for each crime." (§ 12022.53, subd. (f), italics added.) A plain reading of this language does not foreclose multiple enhancements under a particular subdivision, whether (b), (c), or (d), for separate crimes involving the same victim.
In People v. Palacios (2007) 41 Cal.4th 720, the issue was "whether section 654 precludes punishment for more than one section 12022.53 enhancement when each is based on a single act committed against a single victim, although in the commission of separate crimes." (Id. at p. 726.) Our Supreme Court held "the sentence enhancement provisions of . . . section 12022.53 are not limited by the multiple punishment prohibition of . . . section 654.[]" (Id. at p. 723, fn. omitted.) In Palacios, the Court upheld the imposition of three 25 years to life enhancements under subdivision (d) of that section which were based on "a single shot fired at a single victim during the simultaneous commission of three qualifying offenses." (Id. at p. 723.) The Court explained: "We are persuaded that, in enacting section 12022.53, the Legislature made clear that it intended to create a sentencing scheme unfettered by section 654." (Id. at pp. 727-728.)
9. Imposition of Second Serious Felony Enhancement Mandated
The trial court imposed a single five-year prior serious felony enhancement (§ 667, subd. (a)). This resulted in an unauthorized sentence. Although the court was restricted to imposition of a single prior serious felony enhancement with respect to the aggregate determinate sentences, the trial court also was required to impose a prior serious felony enhancement on each indeterminate sentence although he was a second striker rather than a third striker. (People v. Williams (2004) 34 Cal.4th 397, 405 [prior serious felony enhancement to be imposed as to each count to which the third striker was sentenced to an indeterminate term]; People v. Misa (2006) 140 Cal.App.4th 837, 846-847 [Williams applicable to second strikers].) This mandate thus applies to appellants indeterminate sentence on count 1. Accordingly, as acknowledged by the People, appellants sentence must be reversed in view of the omission of a second prior serious felony enhancement and the matter remanded for imposition of such enhancement.
In his letter brief, appellant contends the trial court "imposed a five year enhancement on each of the residential robbery counts, namely Counts 10 and 11[,]" and thus, "any additional sentence enhancements as to the burglary charge should be . . . stayed." His claim is unsupported by the record, which reflects only one five-year prior serious felony enhancement was imposed, and it was not attached to any particular count to which a determinate sentence was imposed.
10. Reversal and Remand for Sentence on Count 13 Mandated
On count 13, the jury found appellant guilty of first degree residential burglary (§ 459) and found true the firearm use enhancement (§ 12022.53, subd. (b).) The trial court failed to sentence appellant on count 13.
In a supplemental sentencing memorandum, the People recommended that the sentence on count 13 be stayed pursuant to the multiple punishment bar of section 654, because the fact of this burglary was used to impose the 25 year to life sentence under the One Strike law (§ 667.61, subds. (a) & (d)(4).) During sentencing, the trial court indicated on the record that it had read this memorandum.
As appellant and the People acknowledge, this error resulted in an unauthorized sentence. "The failure to pronounce sentence on a count is an unauthorized sentence and subject to correction on remand. [Citation.]" (People v. Price (1986) 184 Cal.App.3d 1405, 1411, fn. 6.) "[T]he law is well settled that such a[n unauthorized or illegal] sentence would have been subject to judicial correction whenever the error came to the attention of the trial court or a reviewing court." (People v. Serrato (1973) 9 Cal.3d 753, 763.) Accordingly, appellants sentence must be reversed and the matter remanded for the trial court to sentence appellant on count 13 and to conduct further proceedings not inconsistent with the views expressed in this opinion.
We observe that in contrast to their sentencing memorandum, the People in their responsive letter brief argue section 654 is inapplicable because appellant entertained multiple objectives when he entered the victims residence while displaying a gun. They contend remand is appropriate because it is the trial courts duty to resolve factual issues regarding section 654 and to pronounce judgment on count 13.
In his corresponding letter brief, appellant argues the matter must be remanded for the trial court to impose and then stay the middle term count 13, because the court already sentenced him for robbery in counts 10 and 11 and section 654 prohibits multiple punishments where, as here, the robbery and burglary offenses were part of an indivisible course of conduct with the sole purpose to steal. We conclude the issue of the appropriate sentence to be imposed on count 13 is a matter for the trial court in the first instance.
11. Court Security Fee in Total Amount of $200 Mandated
A $20 court security fee must be imposed for each conviction a defendant suffers, including one for a traffic offense, except for certain parking offenses. (§ 1465.8, subd. (a)(1); (§ 1465.8, subd. (a)(1)).) Section 1465.8, subd. (a)(1) became operative August 17, 2003. In People v. Alford (2007) 42 Cal.4th 749, our Supreme Court held this statutory provision applies to a crime committed before its effective date and such application does not violate either the statutory prohibition against retroactive application of a newly enacted law (§ 3) or the state and federal prohibitions against ex post facto laws. (Id. at p. 752.) Section 1465.8, subd. (a)(1) therefore applies to the crimes appellant was convicted of committing on February 12, 2003.
The trial court in this case imposed a single $20 court security fee. As acknowledged by appellant and the People, this was error which amounted to an unauthorized sentence, because appellant had suffered 10 qualifying convictions. Accordingly, the trial court on remand must impose a total court security fee of $200, i.e., $20 for each of appellants 10 convictions.
DISPOSITION
Appellants sentence is reversed only with respect to the trial courts failure to pronounce sentence on count 13; to impose a second five-year prior serious felony enhancement; and to impose a $20 court security fee as to each of his 10 convictions. The matter is remanded with directions to sentence appellant on count 13; impose a second five-year prior serious felony enhancement; to impose a $20 court security fee for each of appellants convictions; and to conduct further proceedings not inconsistent with the views expressed in this opinion. In all other respects, the judgment is affirmed.
We concur:
RUBIN, J.
EGERTON, J.