Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County Super. Ct. No. SCD193952, Charles G. Rogers, Judge.
HALLER, Acting P. J.
Manuel Soares appeals from a judgment convicting him of cohabitant corporal injury, residential burglary, vandalism, and attempted criminal threat. Soares challenges the residential burglary conviction, arguing that the trial court erred in refusing his request for a special instruction stating that a person cannot be convicted of burglarizing his or her own home. We reject this argument because there was no substantial evidence to support a theory that Soares had an unconditional possessory right to enter the home that he vandalized.
Regarding his sentence, Soares argues (1) the trial court's selection of upper terms violated his jury trial right under the Apprendi rule (Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi)), and (2) the court was not aware of the scope of its discretion to select the principal term for purposes of consecutive sentences. Regarding the Apprendi issue, subsequent to the completion of appellate briefing in this case, the California Supreme Court filed its decision in People v. Black (2007) 41 Cal.4th 799 (Black II). We have received supplemental briefing from the parties regarding the impact of Black II on this case. Under the principles set forth in Black II, there was no Apprendi error here because the record establishes at least one constitutionally permissible aggravating factor to support the upper term selection. We also find no reversible error arising from the manner in which the trial court selected the principal term.
Accordingly, we affirm the judgment, with directions to correct a clerical error in the abstract of judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Soares and victim Debra Keith met in December 1995 and began dating. In 1996, Soares was living with Keith in the home that Keith owned. On April 9, 1996, Soares assaulted Keith while they were arguing. Soares grabbed Keith by her shoulders and caused her to fall backwards; threw her on the bed; put his knees on her chest and hit her face; bit her nose; head-butted her on her forehead; and jumped on her chest with his knees. During part of the attack, Keith was rendered unconscious. She suffered a "snapped . . . back and crushed . . . spine, " and had to wear a body cast on her upper torso for several months because of her injuries.
In 2004, Keith again started dating Soares. In March or April 2005 he moved back into her house to live with her. Soares had no ownership interest in the house. He did not pay rent, although he occasionally gave Keith money for expenses and did chores around the house. Soares entered the house by using a spare key he had taken from the garage.
On September 22, 2005, Keith and Soares began arguing. Soares hit Keith on the knee with his fist as she was sitting next to him. Keith tried to leave the residence, but Soares grabbed her arm and would not let her go. They continued arguing until Soares, who was drinking and appeared to have been using drugs, fell asleep. As a result of the assault that day, Keith suffered a large bruise on her knee and bruising on her arm.
The next day (Friday, September 23), Keith told Soares that he had to move out. Keith left her home that day and spent the night at the home of her friend, Donna Padasdao. The following day (Saturday, September 24), Keith and Padasdao returned to Keith's home to get Keith's cat. While the women were at Keith's home, Soares arrived. Keith told Soares, "You aren't even supposed to be here. Get out." Padasdao told Soares she would call the police if he did not leave. Soares asked about his property at the home, and Keith told him to have his friends come and pick it up. Soares left the residence.
Keith called Soares's mother (who lived nearby) and explained that the relationship was over. Soares's mother suggested that Keith gather Soares's belongings and that his brother could come and pick them up. Keith and Padasdao put some of Soares's property outside, and Soares's brother came and retrieved it. Keith and Padasdao returned to Padasdao's home, where Keith again spent the night.
Some time later, when Soares was in jail, Soares's brother returned to Keith's residence under police escort and retrieved additional items of property belonging to Soares.
About 3:00 or 4:00 p.m. on Sunday afternoon, September 25, Keith, Padasdao, and Padasdao's husband (John Fawcett) went to Keith's home. As they pulled up to park, Soares come out the kitchen door and got on a bicycle. Soares rode by Fawcett's vehicle and yelled, "I want my money." Keith did not know what money he was talking about. Soares left on his bicycle. Entering the residence, Keith and her companions discovered that Keith's entire home was "trashed." Large and small appliances were tipped over on the floor and broken; furniture was ripped apart and broken; items were smashed and broken; a faucet was bent; mini-blinds were ripped off a window; and light switch plates were broken. Keith called 911.
While Keith, Padasdao, and Fawcett were still at Keith's residence, Soares called the residence. During the phone call, Soares told Padasdao that "a grave was too good for the bitch [Keith] and that he'd kill her." Soares did not tell Padasdao to transmit this threat to Keith. Later that night, when Keith was at Padasdao's home, Soares continued to call. During the calls, he demanded money, again told Padasdao that he would kill Keith, and threatened to "blow . . . up" Padasdao's and Keith's homes.
The jury convicted Soares of corporal injury to a cohabitant (count 1), residential burglary (count 2), vandalism causing $10,000 or more damage (count 3), and attempt to make a criminal threat (count 4). Soares admitted a strike prior conviction, a serious felony prior conviction, and a prior prison term. He was sentenced to 19 years and 8 months in prison.
The parties stipulated that the cost of repair of the damage was $13,560.16.
DISCUSSION
I. Instructions
Citing People v. Gauze (1975) 15 Cal.3d 709 (Gauze), Soares requested that the jury be given a special instruction stating that a person cannot burglarize his or her own home. Soares argued that the evidence supported a theory that because he had been living with Keith, he was entitled to the notice rights afforded tenants before losing his possessory right to enter the property. The trial court denied his request for the instruction, finding there was no reasonable evidence that he had an unconditional possessory right of entry into Keith's home. The court reasoned that the living arrangement between Soares and Keith was not akin to a landlord-tenant relationship giving Soares the notice rights provided to tenants.
On appeal, Soares argues the trial court was required to give the instruction because the jury could reasonably find he had an unconditional right to enter the home based on the evidence that he had lived there for several months, and he "had not moved out [prior to the incident], had no other place of residence, and kept all his belongings there."
In Gauze, the defendant entered his apartment and shot his roommate. (Gauze, supra, 15 Cal.3d at p. 711.) The Gauze court concluded he could not be convicted of burglary because a person cannot burglarize his or her own home. (Id. at p. 714.) The court underscored that the defendant "had an absolute right to enter the apartment . . . that could not be conditioned on the consent of [his] roommates[;] [he] could not be 'refused admission at the threshold' of his apartment, or be 'ejected from the premises after the entry was accomplished.' " (Ibid.)
Gauze, supra, 15 Cal.3d at pages 714-715, distinguishes People v. Sears (1965) 62 Cal.2d 737 (Sears). In Sears, evidence was presented showing that a husband had moved out of the family home three weeks before reentering the home with the intent to assault his wife. (Sears, supra, 62 Cal.2d at pp. 740, 745.) The Sears court held the husband's conduct could constitute burglary because he could not claim a right to enter the residence without permission given that he had moved out three weeks before. (Id. at p. 746.) Additionally, the Sears court noted that the entry for burglary need not be a trespass, and that "[o]one who enters a room or building with the intent to commit a felony is guilty of burglary even though permission to enter has been extended to him personally or as a member of the public." (Ibid.) Sears concluded that even if the husband had a right to enter the home for a lawful purpose, his "entry still constitute[d] burglary if accomplished with the intent to commit a felonious assault within it." (Ibid.)
Overruled on other grounds in People v. Cahill (1993) 5 Cal.4th 478, 510, footnote 17.
Rejecting the application of Sears to the facts before it, the Gauze court reasoned that the husband's right of entry in Sears was at best conditional, and that entry for anything but a legal purpose breached his wife's possessory interest, whereas in the case before it defendant Gauze had an unconditional right to enter the apartment. (Gauze, supra, 15 Cal.3d at p. 715; see also People v. Pendleton (1979) 25 Cal.3d 371, 382 [burglary occurs even if defendant entered with consent if defendant does not have "unconditional possessory right to enter"]; People v. Smith (2006) 142 Cal.App.4th 923, 929-932 [husband subject to court order not to enter family home after he assaulted his wife could be convicted of burglary of home]; People v. Davenport (1990) 219 Cal.App.3d 885, 892 [husband who had moved out of family cabin, relinquished key, and removed some of his property could be convicted of burglary of cabin].)
A trial court must give a requested instruction regarding a defense theory if the theory is supported by substantial evidence; i.e., evidence sufficient to deserve consideration by the jury. (People v. Marshall (1997) 15 Cal.4th 1, 39.) In determining whether there is substantial evidence to support the defense theory, the trial court should not weigh the credibility of the witnesses and should resolve doubts as to the sufficiency of the evidence in the defendant's favor. (People v. Barnett (1998) 17 Cal.4th 1044, 1145.) However, the court need not give a requested instruction when the supporting evidence is "minimal and insubstantial." (Ibid.)
Here, Soares's own testimony established that at the time he entered and vandalized Keith's home he no longer had an unconditional right to enter the premises. Soares testified that on Friday, September 23, he and Keith argued; he left the house and when he returned Keith was gone. He did not see her until the next day, Saturday, when he arrived at the home in the afternoon. When he arrived on Saturday, Keith told him to move out of her house. He responded, "Well, let me get my stuff and I'm out of here." Keith told him to come back later to retrieve his property. He told her that he wanted to take his property right then. However, he left when Padasdao threatened to call the police. His brother picked up some of his belongings, and Soares returned later on Saturday when Keith was not there to pick up more of his property. When he was arrested on Sunday night, he was staying at his mother's house.
Under Soares's version of the events, he was told to move out of Keith's home on Saturday. He did not dispute that the house belonged to Keith, and that he was living there at her invitation pursuant to a romantic, not a landlord-tenant, relationship. Under these circumstances, once he was told to move out, he no longer had the right to be on the premises without Keith's permission. Thus, when the vandalism was committed on Sunday, Soares's status was that of an invitee, not a resident. Comparable to the situation in Sears, even if he had the right to enter to retrieve his belongings, he did not have the right to enter to commit a crime. As explained in Gauze regarding the analogous situation of entry into a store: " '[A] party who enters with the intention to commit a felony enters without an invitation. He is not one of the public invited, nor is he entitled to enter. Such a party could be refused admission at the threshold, or ejected from the premises after the entry was accomplished. . . .' [A] person has an implied invitation to enter a store during business hours for legal purposes only." (Gauze, supra, 15 Cal.3d at p. 713.)
Even under Soares's rendition of the facts, as of Saturday he no longer had a right to reside at the home and he only had permission to enter to retrieve his property. There was no evidence to support a theory that he still had an unconditional right to enter the home. The trial court properly refused Soares's request to instruct the jury on this theory.
II. Sentencing
Because of Soares's strike prior conviction, the trial court doubled the sentences for the various counts and imposed the sentences consecutively. (Pen. Code, § 667, subds. (c), (e)(1).) The trial court designated the sentence for residential burglary (count 2) as the principal term and selected the upper term of six years, doubled to 12 years, for this offense. (§§ 459, 460, subd. (a), 461, subd. 1.) The court also selected upper terms for vandalism (count 3, § 594, subds. (a), (b)(1)) and attempted criminal threat (count 4, §§ 422, 664), and selected a middle term for cohabitant corporal injury (count 1, § 273.5, subd. (a)). The court stayed sentence on the vandalism count under section 654. Because the remaining terms were to run consecutively, the court imposed the sentences based on the one-third-the-middle-term formula mandated by section 1170.1. For cohabitant corporal injury, the court imposed a two-year consecutive sentence (one-third the middle term of three years (one year) doubled to two years for the strike prior). For attempted criminal threat, the court imposed an eight-month consecutive sentence (one third the middle term of one year (four months) doubled to eight months for the strike prior). The trial court imposed five years for the serious felony prior conviction enhancement, and stayed sentence on the prior prison term enhancement, resulting in a total sentence of 19 years and 8 months.
Subsequent statutory references are to the Penal Code.
A. Selection of Upper Term
Soares argues that the trial court violated his federal constitutional jury trial right by selecting upper terms based on facts not found by the jury.
1. Background
When selecting upper terms, the trial court considered the facts of the current offense and Soares's criminal history. The trial court derived this information from both trial testimony and the probation report. In 1983, 1984, and 1987, Soares committed four misdemeanor offenses for violating temporary restraining orders and making harassing phone calls. During these incidents, he harassed his former girlfriends or their family members after the women ended their relationships with him. In 1989, he was convicted of a misdemeanor offense for violating a temporary restraining order obtained by a former girlfriend. He harassed this girlfriend by throwing bricks through the windows of her home, threatening to blow out her windows with a shotgun, following her daughter on the way home from school, and vandalizing her backyard. Soares repeatedly violated probation for these misdemeanor offenses. In 1994 he vandalized a girlfriend's home, and in 1995 he was arrested for a domestic violence incident during which he choked and hit this same girlfriend in the arm. In 1996, he was convicted of inflicting corporal injury on Keith and sentenced to five years in prison. During this assault, he kneed Keith in the back, head-butted her in her forehead, hit her in her left eye and nose, and choked and strangled her until she lost consciousness. As a result of the attack, Keith suffered a compressed vertebrae, a black eye, a bloody nose, and bruises on her nose and forearms. Soares violated parole in 2000, 2001, 2002, and 2004. He was discharged from parole in August 2004. He committed the current offenses against Keith in September 2005.
To explain its upper term selection, the trial court stated it found no mitigating circumstances and the following aggravating circumstances: (1) the vandalism involved damage of great monetary value; (2) Soares had engaged in violent conduct which indicated he was a serious danger to society; (3) his prior convictions were numerous and of increasing seriousness; and (4) his prior performance on probation and parole had been unsatisfactory. In further explanation for selecting the upper terms, the trial court noted that during the course of his prior misdemeanor offenses involving violence against women, the women had obtained restraining orders. Thus, Soares was repeatedly ordered by the courts to stop his violent behavior, but he instead continued to offend in this manner including in the current offense. Further, the court observed that one of the witnesses in the current case (Robert Orberg) was apparently afraid to repeat in court what he told police because he was afraid of Soares, as reflected by Orberg's purchase of a gun because of his concerns about Soares. The court concluded that Soares had "engaged in a pattern of violent and antisocial conduct" which warranted the upper term choice.
According to a police officer's testimony, Orberg (Keith's neighbor) told the police that he saw Soares arrive at Keith's residence on Sunday morning and that shortly thereafter he heard loud noises and the sound of breaking glass and of items being thrown around the house. Orberg told the police that Soares had "terrorized the neighbors for years" and that Orberg had bought a gun in case Soares went to Orberg's house to cause trouble. At trial, Orberg testified that he did not recall telling the police that he heard sounds coming from Keith's home on Sunday.
2. Analysis
A defendant has a constitutional right to have the jury, not the trial judge, decide all facts that increase the penalty for a crime beyond the prescribed statutory maximum. (Apprendi, supra, 530 U.S. at p. 490; Blakely v. Washington (2004) 542 U.S. 296, 301 (Blakely); Cunningham v. California (2007) 549 U.S. ___, 127 S.Ct. 856, 860 (Cunningham).) Under Apprendi and its progeny, the statutory maximum is "the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." (Blakely, supra, 542 U.S. at p. 303.) Based on the high court's definition of "statutory maximum, " if the sentencing judge selects a punishment which under the state penal statute requires factual findings beyond the facts encompassed in the guilty verdict, such judicial fact finding violates the defendant's jury trial right. (Id. at pp. 865, 868-869.) An exception to the Apprendi rule allows a sentencing court to enhance punishment beyond the statutory maximum based on "the fact of a prior conviction." (Blakely, supra, 542 U.S. at p. 301; Cunningham, supra, 127 S.Ct. at p. 860.)
Prior to a recent amendment of section 1170, subdivision (b), the statutory maximum in California was the middle term. (Cunningham, supra, 127 S.Ct. at pp. 868, 871.) However, the California Supreme Court recently determined that even under the former version of the statute, the upper term is converted to the statutory maximum if the sentencing record shows that at least one aggravating circumstance was established in accordance with the Apprendi rule so as to render the defendant eligible for the upper term. (Black II, supra, 41 Cal.4th 799.) In reaching this conclusion, the Black II court focused on (1) the United States Supreme Court's advisements that the key constitutional considerations are whether the state statute forbids the trial court from increasing the sentence above a certain term without judicial findings beyond the jury's verdict and thus the defendant is legally entitled to that particular term, and (2) the feature of California's sentencing scheme that provides that a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term. (Id. at pp. 812-816.) Considering these matters, the court in Black II reasoned that when one aggravating circumstance has been established in accordance with constitutional requirements, the trial court is not forbidden from imposing the upper term, the defendant is not legally entitled to the middle term, and it follows that the upper term is the statutory maximum. (Ibid.)
In Cunningham, the United States Supreme Court abrogated the California Supreme Court's ruling in People v. Black (2005) 35 Cal.4th 1238, vacated in Black v. California (2007) ___ U.S. ___, 127 S.Ct. 1210, that the upper term was the statutory maximum. The Cunningham court held that the statutory maximum was the middle term because under California's sentencing scheme the middle term is the presumptive term and the trial court is not permitted to select an upper term without a judicial finding of an aggravating fact that was not an element of the offense found by the jury. (Cunningham, supra, 127 S.Ct. at pp. 868, 871.) In response to Cunningham, effective March 30, 2007, the California Legislature amended section 1170, subdivision (b) to make the middle term a discretionary rather than presumptive term. (Stats. 2007, ch. 3, § 2; People v. Sandoval (2007) 41 Cal.4th 825.) Our analysis is premised on the former version of the statute.
The Black II court concluded that "imposition of the upper term does not infringe upon the defendant's constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant's record of prior convictions." (Black II, supra, 41 Cal.4th at p. 816.) Thus, once the defendant is eligible for the upper term based on the establishment of a constitutionally permissible fact, "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." (Id. at p. 813.)
Here, the factors used by the trial court to select the upper terms included the factors of numerous and increasingly serious prior convictions. In Black II, the California Supreme Court held that the factors of numerous or increasingly serious prior convictions were within the prior conviction exception to the Apprendi rule. (Black II, supra, 41 Cal.4th at p. 819.) Rejecting the defendant's argument that a jury was required to determine whether his prior convictions were numerous or increasingly serious, the Black II court stated that the prior conviction exception "include[s] not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions." (Id. at p. 819.) The Black II court noted that the determinations of whether the convictions are numerous or of increasing seriousness "require consideration of only the number, dates, and offenses of the prior convictions alleged"; the relative seriousness "may be determined simply by reference to the range of punishment provided by statute for each offense"; and these types of determinations were " 'quite different from the resolution of issues submitted to a jury' " and more appropriate for a court. (Id. at pp. 819-820.)
Supporting the numerousness/increasingly serious aggravating factors, the record shows that in the 1980's Soares was convicted of five misdemeanor offenses and in the 1990's he was convicted of a felony offense. Three prior convictions are sufficient to show numerousness. (Black II, supra, 41 Cal.4th at p. 818.) The sentencing record shows the court relied on at least one constitutionally permissible aggravating factor, thus rendering Soares eligible for the upper term.
Although recognizing that the fact of his numerous prior convictions did not need to be found by a jury, Soares argues that this factor cannot suffice to make him eligible for the upper term because selection of the upper term also requires a finding that aggravating factors outweighed mitigating factors. This argument was expressly rejected in Black II. (Black II, supra, 41 Cal.4th atpp. 814-815.) The Black II court reasoned that for constitutional purposes, the proper inquiry is whether the court's fact finding increased the sentence beyond what it was otherwise authorized to impose. (Id. at p. 815.) Once the upper term is authorized based on a single constitutionally permissible aggravating factor, no constitutional violation arises from a trial court's additional fact finding. (Id. at pp. 815-816.)
Because the record shows the establishment of a constitutionally permissible aggravating factor, Soares's jury trial rights were not violated by the trial court's selection of upper terms regardless of the nature of the other aggravating factors cited by the trial court.
B. Designation of Principal Term
When selecting the residential burglary sentence as the principal term, the trial court stated that the sentence for this offense had to be designated as the principal term because residential burglary carried the longest potential sentence under the Penal Code. Citing People v. Miller (2006) 145 Cal.App.4th 206 (Miller), Soares argues the trial court erroneously believed that the offense that carried the longest potential sentence had to be used for the principal term.
Section 1170.1 provides the general formula for determining consecutive terms of imprisonment. (Miller, supra, 145 Cal.App.4th at p. 213.) In Miller, the court construed the plain language of section 1170.1, subdivision (a), and held the section requires the trial court to "designate as the principal term the longest term actually imposed by the court, which is not necessarily the longest term available under the applicable sentencing triads." (Miller, supra, 145 Cal.App.4th. at pp. 215-216, italics added.)
The People argue Miller was wrongly decided. We agree with Miller that under the plain language of the statute the selection of the principal term is governed by the sentence imposed rather than by the longest sentence prescribed in the Penal Code. Section 1170.1, subdivision (a) defines the principal term as "the greatest term of imprisonment imposed by the court for any of the crimes, including any term imposed for applicable specific enhancements." (Italics added.) The reference to the greatest "imposed" term does not evince an intent to require the court to make the principal term designation based on the highest term available under the Penal Code. Our conclusion is consistent with the Advisory Committee Comment to rule 4.420, which states that when the trial court applies the section 1170.1 consecutive sentencing formula, it should first select the base term for each offense (i.e., upper, middle, or lower) and the term for applicable enhancements, and then designate the principal term based on the offense carrying the longest selected term (i.e., the base term plus the enhancement term). (Advisory Com. com., 23 Pt. 1B West's Ann. Court Rules (2006 ed.) foll. rule 4.420, p. 253.) Thus, if a trial court does not want to designate the principal term based on a selection of the longest available sentence, it may exercise its discretion to select the terms for each offense and then make the principal term designation according to the longest of the selected terms.
Section 1170.1, subdivision (a) states in relevant part: "The principal term shall consist of the greatest term of imprisonment imposed by the court for any of the crimes, including any term imposed for applicable specific enhancements. The subordinate term for each consecutive offense shall consist of one-third of the middle term of imprisonment prescribed for each other felony conviction for which a consecutive term is imposed, and shall include one-third of the term imposed for any specific enhancements applicable to the subordinate offenses."
After noting that there is no requirement that the trial court state the base term for terms subject to the automatic one-third-the-middle-term formula, the Advisory Committee Comment to rule 4.420 nevertheless advises: "Even when sentencing is under section 1170.1, however, it is essential to determine the base term and specific enhancements for each count independently, in order to know which is the principal count. The principal term must be determined before any calculation is made using the one-third formula for subordinate terms." (Advisory Com. com., 23 Pt. 1B West's Ann. Court Rules, supra, foll. rule 4.420, p. 254.)
Here, Soares did not object at the sentencing hearing to the trial court's designation of the burglary term as the principal term based on the fact that burglary carried the longest potential sentence. Indeed, defense counsel had earlier indicated to the court that he believed this was the proper sentencing procedure. Under well-established principles of waiver or forfeiture, a defendant may not generally complain for the first time on appeal about sentencing error. (People v. Scott (1994) 9 Cal.4th 331, 356; In re Sheena K. (2007) 40 Cal.4th 875, 880-881.) Moreover, unlike the situation in Miller, Soares has not explained how the trial court's failure to recognize the scope of its discretion under section 1170.1 resulted in a lengthier sentence. The trial court found that the six-year upper term was appropriate for the residential burglary, which made this offense the longest selected term so as to require designation as the principal term. On this record, any error in the manner in which the trial court made its principal term selection does not warrant reversal.
When arguing for a lower term for the burglary offense, defense counsel stated to the court: "I believe that the [burglary] in carrying the greatest weight would be the principal term, I would ask the court to impose the lower sentence on that . . . ."
C. Correction of Abstract of Judgment
In their appellate briefs, the parties agreed that the abstract of judgment contained several clerical errors in the designation of the counts and the description of the offenses. Subsequent to the filing of this appeal, the superior court transmitted to us and to the parties a copy of an amended abstract of judgment that corrected these errors. The amended abstract of judgment should be further corrected to identify the jury's verdict of vandalism of $10,000 or more, rather than vandalism of $400 or more.
DISPOSITION
The judgment is affirmed. The superior court is instructed to correct the amended abstract of judgment and transmit a copy to the Department of Corrections.
WE CONCUR: McINTYRE, J., O'ROURKE, J.