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Court of Appeal, Fourth District, Division 1, California.

The PEOPLE, Plaintiff and Respondent, v. Juan Carlos LEMUS, Defendant and Appellant.

No. D042549.

Decided: September 20, 2004

Koryn & Koryn and Daniel G. Koryn, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry J.T. Carlton and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted Juan Carlos Lemus of torture (Pen.Code,1 § 206;  count 4), corporal injury to a cohabitant (§ 273.5, subd. (a);  count 5), making a criminal threat (§ 422;  count 6), assault (§ 240;  count 7), assault by means likely to produce great bodily injury (§ 245, subd. (a)(1);  count 8), and false imprisonment (§§ 236/237, subd. (a);  count 9.) The jury also found true the allegations Lemus personally inflicted great bodily injury in the commission of counts 4, 5, and 8. (§ 12022.7, subd. (e).) 2

The trial court sentenced Lemus to a total prison term of life plus eight years for his crimes.   Specifically, for the count 4 crime of torture and its attendant enhancement, the court imposed a life term (§ 206.1) and a five-year upper term for the infliction of great bodily injury enhancement.   The court imposed an upper term of three years for the count 6 criminal threat conviction to run consecutive to the count 4 term.

Lemus appeals his torture conviction contending 1) there was insufficient evidence to establish that crime, 2) the court prejudicially erred in failing to give a jury instruction on battery with serious bodily injury as a lesser included offense of torture, and 3) the sentence imposed for the conviction constitutes cruel and/or unusual punishment.

During the pendency of this appeal, we asked the parties for supplemental briefing on the applicability of the recent United States Supreme Court case of Blakely v. Washington (2004) 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403, (Blakely ) on the determinate portion of the sentence imposed in this case.

In the unpublished portion of this opinion, we conclude there was sufficient evidence to convict Lemus of torture, that battery is not a necessarily lesser included offense of torture, and that the sentence imposed for the torture conviction and its enhancement does not constitute cruel and/or unusual punishment.   In the published portion of the opinion, we conclude resentencing in light of Blakely is required.


Maria L. (Maria) and Lemus lived together for about a year and a half and had a baby together.   During the course of their relationship, Lemus was physically and emotionally abusive toward Maria.   He was domineering and controlling to the point of even following Maria to the bathroom to ensure she was not cheating on him.   Eventually, Maria, fearful of Lemus's controlling and intensely jealous behavior, moved out with the baby and went to stay with a cousin.   However, a week later, on August 12, 2002, Lemus convinced Maria to return to his apartment.

At about 11:00 p.m. that night, as Lemus and Maria talked in the living room about how things were going to improve in their relationship, the conversation degenerated into an argument with Lemus accusing Maria of cheating on him.   Lemus slapped Maria across her face twice and instructed her to lay their baby in the bedroom.   Lemus followed Maria into the bedroom and began kissing her.   Maria reciprocated because she did not want to get hit.   At some point, Lemus became upset and ordered Maria to take a shower, saying she smelled like men's cologne.

Maria obediently went to the bathroom, turned the water on, and sat on the toilet.   Lemus followed her, ripped her bra off, and ordered her to perform various sexual acts both in and out of the bathroom.   Maria complied with Lemus's sexual demands because she was fearful he would hit her again.   At one point, Lemus inserted his penis into Maria's vagina with great force.

After Lemus finished having sex in its various forms, he went to the living room window and saw some men outside.   Lemus became enraged and accused Maria of cheating on him with those men.   When Maria denied the accusation, Lemus punched her in the face.   He kept accusing Maria of cheating on him, punching her face and head, telling her that if she admitted cheating on him, he would stop beating her.

Maria cried throughout the attack and tried escaping several times to no avail.   During the ordeal Lemus grabbed her by the hair, threw her to the ground, and covered her mouth to stop her screaming. He also pulled her cheeks to try to silence her as he continued hitting her.

Lemus then ordered Maria to get into the shower and turn the water on so people would not hear her screaming.   Instead, Maria went to the bedroom to get the baby, hoping that if she were holding their son, Lemus would spare her.   Lemus however, demanded Maria hand over the baby.   She complied because she was fearful he would hurt the child.   After placing the baby on the floor, Lemus punched Maria in the head and face, and again ordered her into the shower.   Lemus continued to punch and beat her in the shower and when she sat in the tub, he kicked her in the head several times.

As the beating, punching, and kicking continued, Lemus repeatedly asked Maria who she was cheating with and who her lovers were.   Although Lemus would leave the bathroom periodically, he would shortly return and continue beating Maria.   At one point, Lemus ordered Maria to kneel down in the water and he dunked her head under for several seconds.   He unsuccessfully tried to dunk her a second time.   Lemus then got into the tub with Maria, grabbed her head, shook it, pulled her hair, and hit her head some more, until she finally “confessed” to cheating on him.   Lemus hit her again before he stopped his onslaught.   The physical abuse, which lasted about four hours, ended around 4:00 a.m.

The two then bathed together.   Lemus explained to Maria he had not wanted to beat her, but he had been disappointed in her infidelity.   After bathing, they went to the bedroom where Lemus laid down and Maria sat next to their baby.   When Lemus saw a light flash from the window, he accused Maria of using the light as a signal from her lovers, telling her to return the signal.   When Maria placed a clock in the window, Lemus told her she was playing dumb and then went to sleep.   Maria forced herself to stay awake because she was afraid she might die from her injuries if she fell asleep.

Two hours later as Lemus was leaving for work, he instructed Maria to clean up the apartment, arrange his clothes, and not to leave or go anywhere.   Lemus also told Maria not to tell anyone what had happened or he would take it out on her family.   Maria waited some time after Lemus left to ensure he was not lurking outside before she opened the door to get help.   The police arrived at about 6:40 a.m. When the police later arrested Lemus he told them he had hit Maria because she had cheated on him.

As a result of Lemus's attacks on Maria, she incurred several large lacerations in her vaginal area consistent with blunt force trauma, a severely swollen and bruised face, swollen and ripped upper and lower lips, scratches on her face, missing chunks of hair, tender large red lumps all over her head, large bruises all over her chest and additional bruising over the rest of her body.


I-III **



As this court has recently stated in People v. George (2004) 18 Cal.Rptr.3d 651 [2004 D.A.R. 11568] (George ), “[d]uring the pendency of this appeal, the United States Supreme Court issued its decision in Blakely, supra, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403, which held that a state trial court's imposition of a sentence that exceeded the statutory maximum of the standard range for the charged offense on the basis of additional factual findings made by the court violated the defendant's Sixth Amendment right to trial by jury.   Based on the trial court's imposition of upper terms [for Lemus on the great bodily injury enhancement for count 4 and for the offense in count 6] we requested further briefing from the parties on the effect of Blakely in this case.

“In his brief, [Lemus] contends that pursuant to the analysis of Blakely, the court's finding of facts to justify its imposition of upper term sentences violated his right to jury trial.   The attorney general responds that [Lemus] has waived the issue by failing to raise a challenge to the sentences in the proceedings below, that there is no constitutional violation pursuant to the analysis of Blakely, and that, even if a Blakely error existed, it was harmless beyond a reasonable doubt.

“1. Waiver. [¶] In People v. Scott (1994) 9 Cal.4th 331, 36 Cal.Rptr.2d 627, 885 P.2d 1040 (Scott ), the California Supreme Court held that a defendant's failure to challenge in the trial court the imposition of an aggravated sentence based on erroneous or flawed information waived that issue for purposes of appeal.   The attorney general argues that the holding of Scott is equally applicable here.   However, the court in Scott reasoned that its waiver rule was necessary to facilitate the prompt detection and correction of error in the trial court thus reducing the number of appellate claims and preserving judicial resources [citation], a pragmatic rationale that does not support the application of the waiver rule here.   Prior to Blakely, California courts and numerous federal courts consistently held that there was no constitutional right to a jury trial in connection with a court's imposition of consecutive sentences.  [Citations.]  No published case in California held that a different rule applied in connection with the imposition of an upper term sentence.  [Citation.]  In light of this state of the law, [an assertion of a constitutional challenge to] the imposition of an upper term sentence would not have achieved the purpose of prompt detection and correction of error in the trial court.   Further, because Blakely was decided after [Lemus's] sentencing, [Lemus] cannot be said to have knowingly and intelligently waived his right to a jury trial.  [Citation.]”  (George, supra, 18 Cal.Rptr.3d 651 [2004 D.A.R. at p. 11572].)

 Additionally, Lemus vigorously advocated in the trial court for a mitigated sentence.   He filed a statement in mitigation and urged the court to impose a lesser sentence.   The trial court stated extensive reasons for the sentence imposed.   Under the circumstances, it would be unreasonable to find that Lemus abandoned a constitutional challenge of which he was unaware.   For these reasons, we find, as we did in George, that the waiver rule of Scott, supra, 9 Cal.4th 331, 36 Cal.Rptr.2d 627, 885 P.2d 1040, is inapplicable under these circumstances.  (George, supra, 18 Cal.Rptr.3d 651 [2004 D.A.R. at p. 11572].)

 In George, supra, 18 Cal.Rptr.3d 651 [2004 D.A.R. 11568], we further stated:  “2. Application of Blakely to an Upper Term Determination.  [¶] In Blakely, the United States Supreme Court held that ‘ “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” ’  [Citation.]  The question of whether Blakely precludes a trial court from making findings on aggravating facts in support of an upper term sentence is currently under review by the California Supreme Court.  [Citations.]  Pending resolution of the issue by the high court, we must undertake a determination of whether Blakely applies under the circumstances presented.

 “Under California's determinate sentencing law, where a penal statute provides for three possible prison terms for a particular offense, the court is required to impose the middle term unless it finds, by a preponderance of the evidence, that the circumstances in aggravation outweigh the circumstances in mitigation.  [Citations.]  The Attorney General argues that the imposition of an upper term sentence under the California determinate sentencing scheme is not the same as ‘the imposition of a penalty beyond the standard range’ and thus does not implicate Blakely.   The attempted distinction, however, is one without a difference.   Although an upper term is a ‘statutory maximum’ penalty in the sense that it is the highest sentence a court can impose for a particular crime, it is not necessarily the ‘maximum [sentence] a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant,’ which is the relevant standard for purposes of applying Blakely.  [Citations.]

“As explained in Blakely, when the judge's authority to impose a higher sentence depends on the finding of one or more additional facts, ‘it remains the case that the jury's verdict alone does not authorize the sentence,’ as required to comply with constitutional principles.  [Citation.]  The same is true here.   Because the maximum penalty the court can impose under California law without making additional factual findings is the middle term, Blakely applies.   Thus, the question becomes whether the trial court could properly rely on any of the cited factors as the basis for its decision to impose the upper term without violating Blakely.”  (George, supra, 18 Cal.Rptr.3d 651 [2004 D.A.R. at pp. 11572-11573].)

 In the present case, the trial court relied on a number of aggravating factors as the basis for its decision to impose the upper term as to the enhancement and as to count 6. The court noted that the crime involved great violence, great bodily harm, and involved a high degree of cruelty, viciousness or callousness.   The court also found that the victim was vulnerable and the defendant took advantage of a position of trust, that the defendant threatened the victim if she reported the crime and engaged in violent conduct indicating he was a serious danger to society.  “In accordance with Blakely, the Constitution requires a jury trial on any fact that ‘the law makes essential to the punishment’ other than the fact of the defendant's prior conviction.   [Citation.]”  (George, supra, 18 Cal.Rptr.3d 651 [2004 D.A.R. at p. 11573].)   Applying those standards to the present case, it is clear that there is no finding by the jury on which the trial court could rely for the selection of the upper term sentence.   Accordingly, we find on this record the court's decision to select the upper term for the enhancement to count 4 and for the offense in count 6 violated the defendant's Sixth Amendment right to a jury trial as defined in Blakely.

3. Prejudice

The attorney general argues that if Blakely applies to the selection of the upper term sentences in this case, any error in that regard is harmless.   Essentially, the attorney general argues that since a single factor in aggravation would support an upper term (People v. Cruz (1995) 38 Cal.App.4th 427, 433, 45 Cal.Rptr.2d 148), the error is harmless because the jury, had it been presented with such issues of aggravation, would have found any of the factors to be true.   As we understand the attorney general's argument, it appears to be that even if Lemus had a right to a jury trial, the evidence is overwhelming as to the aggravated nature of his offense and therefore any jury would have found the factors in aggravation to be true.   We believe the argument misses the point of Blakely.

 The decision in Blakely is premised on the notion that the defendant has a constitutional right under the Sixth Amendment to a jury trial as to any factual determination which increases the sentence which could be imposed based upon the finding of guilt on the offense alone.   In this case, we have concluded Lemus had a constitutional right to a jury trial on any fact that would justify the trial court increasing the sentence beyond the presumptive middle term for either the enhancement or for count 6. Accordingly, we believe that the loss of the jury trial right cannot be found harmless on the theory that if a jury trial had been held the defendant would have lost on the issue.   The point of Blakely is that the jury trial must be held.

In any event, whether we apply the traditional harmless error standard or the constitutional harmless error standard of Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705, we are compelled to conclude that the error in this case is not harmless.   While the conduct in which Lemus engaged is egregious and the record demonstrates his lack of remorse for that egregious conduct, Lemus has no prior criminal convictions and the trial court's decision to impose the upper term sentences was based on fact finding on matters not contained within the jury verdicts.   Accordingly, the sentence as to the great bodily injury enhancement for count 4 and the sentence for count 6 must be vacated and the case remanded to the superior court to conduct a new sentencing hearing consistent with the principles discussed in this opinion.


The sentence as to the enhancement to count 4 and the sentence for count 6 are vacated and the case remanded to the superior court to conduct a new sentencing hearing.   In all other respects, the judgment is affirmed.

I concur in parts I, II and III of the majority opinion.   I part company with my colleagues on the question of whether Blakely v. Washington (2004) 542 U.S. 296, 124 S.Ct. 2531 (Blakely ) compels reversal of the upper terms imposed for violation of Penal Code 1 sections 422 (count 6, making a criminal threat) and 12022.7, subdivision (e) (great bodily injury enhancement for count 4, torture).

Appellant was found guilty of section 422, making a criminal threat.   That statute authorized three possible sentences of sixteen months, two or three years.   He was sentenced to the upper term of three years.   A great bodily injury enhancement was found true pursuant to section 12022.7, subdivision (e).   That statute provides for a prison term of three, four or five years.   He was sentenced to the upper term of five years.   My colleagues find the selection of the upper term sentences violates the teachings of Blakely.   I disagree.   I conclude California's sentencing scheme is entirely consistent with the principles discussed in Apprendi v. New Jersey (2000) 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435, (Apprendi ) and its progeny, Blakely.

The holdings of Apprendi and Blakely do not, I respectfully suggest, extend to the application of judicial discretion when that discretion is kept within a sentence range authorized by the statute for the crime of which the defendant was convicted.   As the court notes in Apprendi, “nothing ․ suggests that it is impermissible for judges to exercise discretion-taking into consideration various factors relating both to offense and offender-in imposing a judgment within the range [italics in orig.] prescribed by statute [italics added].”  (Apprendi, supra, 530 U.S. at p. 481, 120 S.Ct. 2348.)   Such factors are “sentencing factors,” a term which “appropriately describes a circumstance, which may be either aggravating or mitigating in character, that supports a specific sentence within the range authorized by the jury's finding that the defendant is guilty of a particular offense.”  (Id. at p. 494, 120 S.Ct. 2348, fn. 19.)

The defect the Supreme Court found in Blakely's sentencing was not that the trial judge in setting the sentence utilized discretion based on facts not found by the jury in returning its verdict but rather that the sentence imposed was for a term outside the range set by statute for the offense and the decision to go outside that range was based on facts not found by the jury.   The court in Blakely had no complaint with sentencing ranges for offenses, and it readily accepted the constitutional propriety of indeterminate sentencing schemes.   If a constitutionally proper sentence for a crime can be a range, then necessarily some institution other than the jury must determine the sentence within that range.   The salutary purpose for prescribing a range of punishment for an offense is to allow for varying sentences based on gradations of culpability within the broad sweep of the sentence statutorily authorized for the crime committed.   The determination of culpability within a statutory range is a task for which juries generally are not well suited and is traditionally given to the court.   The task is one that necessarily requires the judge weigh a host of factors, some involving the crime, some the defendant and most involving facts not found by the jury.

As I read Blakely and Apprendi, such a system is perfectly constitutional.   A sentence at the upper range of that allowed in Washington for the crime to which Blakely pled guilty, even if imposed for reasons based on facts not determined by the jury, was lawful.   What the Constitution does not allow is the imposition of a term outside the range of punishment for the core offense when based on facts not found by the jury.

Once this is understood, the constitutionality of California's determinate sentence system becomes apparent.   Our determinate sentencing system is based on the declaration in the Penal Code of a range of sentences for each offense, i.e., the Legislature has decided that an appropriate sentence for the conviction of a crime is within that range.   My colleagues find it significant that in our system the middle of the three terms is considered “presumptively” the appropriate term.   I find no significance in that presumption at all.2  The fact remains the Legislature has set a range of punishment for the offense.   In any noncapricious sentencing system based on an authorized range, the middle of the range is for average culpability, the lower for the less culpable and the upper for the most culpable.   Our determinate system is merely more formal than many in that it requires a finding and stating particular reasons for imposing the upper or lower term.

The constitutional defect found by Blakely in Washington's sentence scheme was that it allowed for the imposition of a term greater than the range authorized by law for the offense to which Blakely pled guilty based on a fact not found by a jury or admitted by the defendant.   California's law suffers no such defect and the sentencing in this case was proper.


FN1. All further statutory references are to the Penal Code..  FN1. All further statutory references are to the Penal Code.

FN2. The jury also found true that Lemus did personally inflict great bodily injury when he committed the assault by means likely to produce great bodily injury within the meaning of section 1192.7, subdivision (c)(8)..  FN2. The jury also found true that Lemus did personally inflict great bodily injury when he committed the assault by means likely to produce great bodily injury within the meaning of section 1192.7, subdivision (c)(8).

3.   Because Lemus challenges the sufficiency of the evidence, we review the record in the light most favorable to the judgment.

FOOTNOTE.   See footnote *, ante.

FN1. All further statutory references are to the Penal Code unless otherwise specified..  FN1. All further statutory references are to the Penal Code unless otherwise specified.

2.   In any event, I make the following observations:  The significance my colleagues find rests on two erroneous assumptions.   The first is that we can simply superimpose Washington's statutory structure on California.   We cannot.   As noted, ante, California's sentences are drawn from single statutes, each of which contains a range of discretionary choices.   Washington authorized sentences drawn from multiple statutes.   The majority errs by applying California's sentencing terminology on Washington.   The second erroneous assumption is that our statutory midterm is the point at which the sentencing function must always begin.   Although the Penal Code and California Rules of Court indicate the midterm shall be imposed, the word “shall” must be interpreted in conjunction with statutory language, context and history.  (People v. Ledesma (1997) 16 Cal.4th 90, 95, 65 Cal.Rptr.2d 610, 939 P.2d 1310.)   I conclude the application of the middle term is not the beginning of the sentencing choice to be made;  rather, it is the conclusion to which the defendant is entitled if the court finds no aggravating or mitigating factors.   Thus it is in the absence of such factors that the court “shall” then impose the middle term.  (People v. Thornton (1985) 167 Cal.App.3d 72, 76-77, 212 Cal.Rptr. 916;  People v. Myers (1983) 148 Cal.App.3d 699, 703, 196 Cal.Rptr. 234.)



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