PEOPLE v. SAMPLE

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Court of Appeal, Third District, California.

The PEOPLE, Plaintiff and Respondent, v. George Carl SAMPLE, Defendant and Appellant.

No. C044445.

Decided: September 13, 2004

William I. Parks, Nevada City, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Senior Assistant Attorney General, Brian R. Means, David Andrew Eldridge and Brook A. Bennigson, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant George Carl Sample was convicted by jury of corporal injury on a former spouse, with personal infliction of great bodily injury (count one);  assault with a deadly weapon (count two);  possession of a firearm by a convicted felon (count three);  and battery upon a cohabitant (count five).   The trial court found that he violated his probation on an earlier conviction for spousal abuse. Defendant was sentenced to an aggregate term of 11 years, eight months in state prison, including the upper term on count one and consecutive terms on count three and on the prior conviction.

On appeal, defendant raises a variety of contentions.   Among them is his claim that imposition of the upper term and consecutive terms violated the Sixth Amendment of the United States Constitution as interpreted in Apprendi v. New Jersey (2000) 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (hereafter Apprendi ) and Blakely v. Washington (2004) 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (hereafter Blakely ).   Defendant concedes he did not raise this claim of error in the trial court.

As we will explain in the published part of this opinion, United States v. Cotton (2002) 535 U.S. 625, 122 S.Ct. 1781, 152 L.Ed.2d 860 held that a defendant's failure to object to Apprendi error in the trial court forfeits the right to raise it on appeal if the error did not seriously affect the fairness, integrity, and public reputation of the judicial proceedings, i.e., if a factor relied upon by the trial court in violation of Apprendi was uncontroverted at trial and was supported by overwhelming evidence.   Such is the case here.   Defendant did not raise an Apprendi objection in the trial court, and factors used in imposing the upper term and consecutive sentencing were uncontested at trial and supported by overwhelming evidence.   Hence, defendant is barred from raising the claim of Apprendi /Blakely error.

In any event, the rule of Apprendi and Blakely does not apply to California's consecutive sentencing scheme, and imposition of the upper term here was harmless beyond a reasonable doubt.

In the unpublished parts of the opinion, we reject defendant's other claims of error.   Accordingly, we shall affirm the judgment, but direct the trial court to correct clerical mistakes in the abstract of judgment.

FACTUAL AND PROCEDURAL BACKGROUND

 The charges against defendant

Count one, committed on September 17, 2001, alleged infliction of corporal injury upon defendant's former spouse, Tamara Sample, resulting in a traumatic condition and with personal infliction of great bodily injury under circumstances involving domestic violence.  (Pen.Code, §§ 273.5, subd. (a), 12022.7, subd. (e);  further section references are to the Penal Code unless otherwise specified.)   As to this count, it was further alleged that defendant was convicted of spousal abuse in June 2000. (§ 273.5, subd. (e)(2).)

Count two, committed on September 17, 2001, alleged assault with a deadly weapon (a noose) upon Tamara Sample by means of force likely to produce great bodily injury. (§ 245, subd. (a)(1).)

Count three, committed on August 22, 2001, alleged possession of a firearm by a convicted felon. (§ 12021, subd. (a)(1).)

Count four, committed on August 22, 2001, alleged resisting officers in the performance of their duties. (§ 69.)

Count five, committed on August 22, 2001, alleged battery on a cohabitant, Tammice Woods, a misdemeanor. (§ 243, subd. (e)(1).)

 The convictions

In January 2003, a jury found defendant guilty of counts three and five, but could not reach verdicts on the other counts, as to which a mistrial was declared.   In May 2003, defendant was sentenced on counts three and five, and on the prior spousal abuse conviction for which probation was revoked.   Thereafter, counts one and two were retried, and a second jury found him guilty of both crimes.   Count four was severed and is not at issue here.   On June 25, 2003, defendant was sentenced on counts one and two, and on the enhancement to count one, and was resentenced on counts three and five, and on the prior felony conviction.   Defendant filed a notice of appeal the next day.

 The prosecution's evidence

1. The crimes on August 22, 2001 (counts three and five)

The sheriff's department received a 9-1-1 call reporting that a man was assaulting a woman and pointing a gun at her in an apartment complex.1  Deputies went to an apartment there and found Tammice Woods upset and crying.   Defendant was in the bathroom.   After deputies subdued him, they found a loaded gun in a hole in the box spring of the bed in the master bedroom.   Defendant's identification and ammunition (of a caliber suitable for the gun) were found in a duffel bag in a hall closet.

Woods testified defendant “sort of” lived with her, but also was still staying with his wife.   Defendant did not live with Woods full-time;  he was “just in and out.”   He had his own key to the apartment, kept personal belongings there, and sometimes spent the night.   Before Woods moved to the apartment, she and defendant lived together “[k]ind of off and on” in 2001.

According to Woods, defendant called on August 22, 2001, and wanted her to pick him up at work so he could leave work early.   When she arrived there, he was angry because she was late and she brought a friend whom he disliked.   Defendant grabbed Woods by the arm and slapped her.   After driving home in silence, defendant and Woods went to the community laundry room so they could argue without her friend hearing.   Defendant grabbed Woods by the hair, swung her to the ground, and kicked her in the back.   Woods testified that defendant did not threaten her with a gun;  rather, he pointed his cell phone at her.   Shortly after defendant and Woods went back inside the apartment, law enforcement officers arrived.

Woods further testified that, one week earlier, she allowed defendant's brother, Kelcey Sample, who was visiting from Indiana, to keep his gun at her apartment.2  Kelcey told Woods to store the gun for him.   She put it in its case and placed it on the floor under her bed.   Although she told Kelcey where she put the gun, she did not tell defendant about it.   She denied putting the gun in the box spring, explaining she did not even know about the hole in it.   Woods, defendant, and Kelcey all had things stored in the hall closet.   Defendant customarily kept his wallet on the kitchen counter or on the bedroom dresser if he did not have it on his person.

2. The crimes on September 17, 2001 (counts one and two)

Tamara Sample and defendant were married in 1996.   They separated and reconciled numerous times.   In August 2001, Tamara decided to break all ties.

Tamara testified that when she left her mother's apartment and went to her car on the morning of September 17, 2001, defendant was hiding in the backseat.   He grabbed Tamara by her hair, pulled her into the car, and asked her to come with him.   They struggled, and defendant punched her all over her body.   She escaped the car, but defendant caught up with her, “slammed” her against a fence, and pushed her into nearby cars.   At one point while Tamara was on the ground, defendant sat on top of her and tried two or three times to put a “zip tie” around her neck.   He got the zip-tie “noose” down to her chin before she managed to pull it off.   He also hit her in the face with a closed fist, causing a cut under her eye that required stitches to close.   The beating stopped when a woman approached and asked if Tamara was alright.

3. Uncharged conduct

Evidence of prior uncharged conduct was introduced pursuant to Evidence Code section 1109, as follows:

In September 1996, Tamara was pregnant and had left defendant because he was having an affair with another woman.   Defendant came to the home of Tamara's relatives, banged on the door trying to get in, and threatened to kill Tamara and her family.   Tamara told police that on the same day, defendant grabbed her by the wrists and kicked her in the head.

In February 2000, Woods left a male friend's house and found defendant sitting in his car, angry.   Defendant grabbed her arm, hit her, and pulled out a gun.   They drove to Woods's residence, and while still in the car, defendant hit her several times and told her to remove her pants, which she did out of fear.   After they went inside the house, defendant hit Woods with a belt, punched her with a closed fist, and kicked her.   He let her go when she said she had to pick up her children at her mother's house.   While at her mother's house, Woods saw defendant and his wife, Tamara.   Defendant got into the car that he had purchased for Woods and shot a gun into the air.   Photographs of her bruises from this incident were shown to the jury.

In August 2001, Tamara and defendant split up.   He took her car and said he would not bring it back.   After Tamara called the police, defendant returned the car and rammed it into the garage.   He went into the house, struggled with Tamara, who was trying to open the door for police, “busted” her lip, and caused her to suffer a “knot” on her head.

 Defense

1. The events on August 22, 2001

Defendant's brother, Kelcey, testified that about two weeks before defendant's arrest in August 2001, Kelcey came to Sacramento, planning to relocate from Indiana.   He left most of his belongings at Woods's apartment, where he sometimes slept.   He asked Woods to store his gun, and she put it under the bed.   Feeling it was not safe there, Kelcey put the gun inside a hole in the mattress while he was alone in the apartment.   Kelcey had ammunition in his duffel bag, which was in Woods's living room closet.   Although the gun was loaded when the officers found it, Kelcey testified that he did not load it and that he believed it was not loaded when he moved it.

Defendant testified he was aware of the gun and saw it on the bed, but he did not know where it was stored.   Defendant knew he was not supposed to possess a firearm, but he was not concerned about it since he did not live at Woods's apartment.   However, he acknowledged he had been involved with Woods for a number of years, he had a child with her, and he stayed at her apartment “probably at least twice a week.”   Although he was not sure where his wallet was at the time the officers entered the apartment, defendant claimed he “never ever” kept it in a duffel bag in the closet.   He assumed it was on the bedroom dresser because that was where he took off his clothes preparing for a shower before the officers arrived.

Regarding the alleged battery, defendant admitted he was mad at Woods and “smacked” her when she arrived late to pick him up at work.   He also admitted he grabbed her hair and pulled her towards him in the laundry room.   According to defendant, she fell and he accidentally kicked her or stepped on her.

2. The events on September 17, 2001

Defendant considered himself divorced from Tamara in August 2001, but he did not know if it was official.   As of September 2001, she was seeing other men, and he had been seeing other women for years.

Defendant denied going to the residence where Tamara was staying on September 17, 2001, and denied attacking her.   Although he acknowledged that he uses zip ties in his construction job, defendant denied ever trying to place one around Tamara's neck.

3. Uncharged conduct

Defendant admitted that he had physically abused Tamara in the past, and admitted having a prior felony conviction for domestic violence against Woods, for which he was on probation.

Although defendant admitted he had grabbed Tamara's arm during the incident in September 1996, because he wanted to talk with her, he denied threatening Tamara's family, firing a gun, or kicking Tamara.

As to the incident in February 2000, defendant testified he arrived for a barbecue, saw Woods talking to a man, and got angry.   He admitted he hit her and later fired gunshots into the air, which he claimed were to fend off Woods's brothers who were gang members.   Defendant admitted pleading guilty to felony domestic violence based upon this incident.

Regarding the August 2001 incident, defendant testified he and Tamara had a fight, and she told him to leave.   He loaded some of his belongings in her car, which was bigger than his car, and drove away.   Several minutes later, a law enforcement officer called him on his cell phone and said Tamara reported the car stolen.   Defendant returned, hit the garage door opener, but pulled in too fast and accidentally ran the car into the garage door.

 The judgment

Defendant was sentenced to an aggregate term of 11 years, eight months in prison:  The upper term of five years on count one (corporal injury on a former spouse);  a consecutive term of five years for the great bodily injury/domestic violence enhancement;  four years on count two (assault with a deadly weapon), which was stayed pursuant to section 654;  a consecutive term of eight months (one-third the middle term) on count three (possession of a firearm by a convicted felon);  a consecutive term of one year (one-third the middle term) on the prior felony conviction of spousal abuse for which probation was revoked;  and a concurrent term of one year on count five (battery).3

DISCUSSION

I-V**

VI

Relying on Blakely, supra, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 and Apprendi, supra, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435, defendant claims that the trial court erred in imposing the upper term on count one and consecutive terms on count three and on his prior felony conviction.   He concedes he did not raise this issue in the trial court.

For reasons that follow, defendant cannot prevail on his claim of error because he failed to raise it in the trial court.

A

In Blakely, the defendant entered a plea of guilty to second degree kidnapping involving domestic violence and use of a firearm.  (Blakely, supra, 542 U.S. at pp. 297-299, 124 S.Ct. at p. 2534, 159 L.Ed.2d at pp. 410-411.)   Under Washington law, second degree kidnapping could be punished by a prison term of up to 10 years, but the law provided a “ ‘standard range’ ” of 49 to 53 months.  (Ibid.) The sentencing court could impose a term in excess of the standard range only if it found “ ‘substantial and compelling reasons justifying an exceptional sentence.’ ”  (Id. at p. 299, 124 S.Ct. at p. 2535, 159 L.Ed.2d at p. 411.)   A reason offered in support of an exceptional sentence could be considered “ ‘only if it takes into account factors other than those which are used in computing the standard range sentence for the offense.’ ”  (Ibid.) A court imposing an exceptional sentence is required to set forth findings of fact and conclusions of law supporting the sentence.   (Ibid.)

Over the defendant's objection, the sentencing court in Blakely imposed an exceptional sentence after finding the offense involved deliberate cruelty.  (Blakely, supra, 542 U.S. at pp. 299-300, 124 S.Ct. at p. 2535, 159 L.Ed.2d at p. 411.)   Relying on its earlier holding in Apprendi, the United States Supreme Court held that the sentence violated the defendant's Sixth Amendment right to a jury trial.   The court explained:  Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum must be tried to a jury and proved beyond a reasonable doubt.  (Id. at pp. 301-302, 124 S.Ct. at p. 2536, 159 L.Ed.2d at p. 412.)   For this purpose, the statutory maximum is the maximum sentence that a court could impose based solely on the facts reflected by a jury's verdict or admitted by the defendant.  (Id. at pp. 302-304, 124 S.Ct. at p. 2537, 159 L.Ed.2d at p. 413.)   Accordingly, when a sentencing court's authority to impose an enhanced sentence depends upon additional fact findings, there is a right to a jury trial and proof beyond a reasonable doubt on the additional facts.  (Id. at pp. 302-306, 124 S.Ct. at pp. 2537-2538, 159 L.Ed.2d at pp. 413-414.)   Since the exceptional sentence imposed in Blakely was based on a fact not admitted by the defendant, the sentencing procedure did not comply with the Sixth Amendment.  (Id. at pp. 304-306, 124 S.Ct. at pp. 2538, 159 L.Ed.2d at pp. 414-415.)

Here, defendant contends his sentence violates the holding in Blakely because in imposing the upper term on count one and the consecutive term on count three, the trial court relied upon facts not submitted to the jury and proved beyond a reasonable doubt, thus depriving him of the constitutional right to a jury trial on facts legally essential to the sentences.

B

In United States v. Cotton (2002) 535 U.S. 625, 122 S.Ct. 1781, 152 L.Ed.2d 860 (hereafter Cotton ), a case the United States Supreme Court decided after its decision in Apprendi, the court held that the Sixth Amendment right to a trial and finding by jury on a fact used to enhance a defendant's sentence may be forfeited by the defendant's failure to timely assert that right in the trial court.

Cotton involved convictions of multiple defendants for the conspiracy to distribute, and to possess with intent to distribute, a “ ‘detectable amount’ ” of cocaine and cocaine base.   Although the indictments did not charge any of the threshold levels of drug quantity that would support enhanced penalties, the district court imposed enhanced sentences based on its finding that the offenses involved a quantity of drugs sufficient to trigger enhancement provisions.  (Cotton, supra 535 U.S. at pp. 627-628, 122 S.Ct. at pp. 1783-1784, 152 L.Ed.2d at pp. 865-866.)   While the case was on appeal, the Supreme Court decided Apprendi.   Based on the holding in Apprendi, the Court of Appeals vacated the sentences on the ground that the district court lacked jurisdiction to impose a sentence based on facts not charged in the indictment.  (Cotton, supra, 535 U.S. at p. 628, 122 S.Ct. at p. 1784, 152 L.Ed.2d at p. 866.)

In a unanimous decision, the United States Supreme Court reversed the decision of the Court of Appeals and held (1) the omission from the indictment of facts relied upon for sentencing was not jurisdictional error that would require vacating the sentence (Cotton, supra, 535 U.S. at pp. 629-631, 122 S.Ct. at pp. 1784-1785, 152 L.Ed.2d at pp. 866-868,) and (2) the defendants forfeited their claim of Apprendi error because they did not raise the issue in the district court.  (Id. at pp. 631-634, 122 S.Ct. at pp. 1785-1787, 152 L.Ed.2d at pp. 868-870.)   The court explained the forfeiture as follows:

Since the defendants had not objected in the trial court, their claim of error was forfeited for appeal unless it met the “plain-error” test of Federal Rule of Criminal Procedure 52(b).6  (Cotton, supra, 535 U.S. at p. 631, 122 S.Ct. at p. 1785, 152 L.Ed.2d at p. 868.)   This would require (1) error, (2) that is plain, (3) that affects substantial rights, and (4) that seriously affects the fairness, integrity, or public reputation of judicial proceedings.  (Ibid.) The Supreme Court found the error was plain under the reasoning of Apprendi.   However, the court found it was unnecessary to determine whether the error affected substantial rights of the defendants, “because even assuming [the defendants'] substantial rights were affected, the error did not seriously affect the fairness, integrity, or public reputation of judicial proceedings.”  (Id. at pp. 632-633, 122 S.Ct. at pp. 1785-1786, 152 L.Ed.2d at p. 868.)

Recognizing that “the fairness and integrity of the criminal justice system depends on meting out to those inflicting the greatest harm on society the most severe punishments,” the Supreme Court held:  “The real threat then to the ‘fairness, integrity, and public reputation of judicial proceedings' would be if [defendants], despite the overwhelming and uncontroverted evidence that they were involved in a vast drug conspiracy, were to receive a sentence prescribed for those committing less substantial drug offenses because of an error that was never objected to at trial.”  (Cotton, supra, 535 U.S. at p. 634, 122 S.Ct. at p. 1787, 152 L.Ed.2d at p. 869-870;  see also Johnson v. United States (1997) 520 U.S. 461, 469-470, 117 S.Ct. 1544, 1550, 137 L.Ed.2d 718, 728-729.)

Thus, the forfeiture rule applied to bar the defendants from complaining about Apprendi error.  (Cotton, supra, 535 U.S. at p. 634, 122 S.Ct. at p. 1787, 152 L.Ed.2d at pp. 869-870.)

The reasoning of the United States Supreme Court in Cotton is similar to, but not identical with, harmless error analysis.   The court previously had explained that invariably to refuse to consider errors when no objection was made would be out of harmony with rules of fundamental justice.  (United States v. Olano (1993) 507 U.S. 725, 732, 113 S.Ct. 1770, 1776-1777, 123 L.Ed.2d 508, 518.)   Accordingly, if the defendant points to plain error that affected substantial rights, then an appellate court has discretion to correct the error.  (Id. at p. 735, 113 S.Ct. at p. 1778, 123 L.Ed.2d at p. 520.)   “Normally, although perhaps not in every case, the defendant must make a specific showing of prejudice to satisfy the ‘affecting substantial rights' prong of Rule 52(b).”  (Ibid.) But such a showing is not itself sufficient.  (Id. at pp. 736-737, 113 S.Ct. at p. 1778-1779, 123 L.Ed.2d at p. 521.)   An appellate court should not correct the error unless it “ ‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.’ ”  (Ibid.)

It was this latter test the Supreme Court applied in Cotton, concluding that when the defendants did not object in the district court to the sentencing proceeding and did not attempt to dispute or controvert the evidence in support of a sentencing factor that justified the sentence imposed, and the evidence of the factor was overwhelming, then forfeiture applies and reversal on appeal is wholly unwarranted.  (Cotton, supra, 535 U.S. at p. 634, 122 S.Ct. at p. 1786-1787, 152 L.Ed.2d at pp. 869-870.)

Although Cotton was concerned with Federal Rules of Criminal Procedure (18 U.S.C.) 52(b), which does not govern state court proceedings, California's statutory law includes an analogous provision.  Penal Code section 1259 provides in part:  “Upon an appeal taken by the defendant, the appellate court may ․ review any question of law involved in any ruling, order, instruction, or thing whatsoever said or done ․ after objection made in and considered by the lower court, and which affected the substantial rights of the defendant.”   (Italics added;  see In re Seaton (2004) 34 Cal.4th 193, 17 Cal.Rptr.3d 633, 95 P.3d 896.)

 It is a well established rule in this state that a criminal defendant's right to raise an issue on appeal is forfeited by the failure to have made a timely objection in the trial court.  (In re Seaton, supra, 34 Cal.4th 193, 17 Cal.Rptr.3d 633, 95 P.3d 896;  People v. Barnum (2003) 29 Cal.4th 1210, 1224, 131 Cal.Rptr.2d 499, 64 P.3d 788;  People v. Vera (1997) 15 Cal.4th 269, 275-276, 62 Cal.Rptr.2d 754, 934 P.2d 1279;  People v. Lucas (1995) 12 Cal.4th 415, 476-477, 48 Cal.Rptr.2d 525, 907 P.2d 373;  People v. Scott (1994) 9 Cal.4th 331, 352-353, 36 Cal.Rptr.2d 627, 885 P.2d 1040;  People v. Saunders (1993) 5 Cal.4th 580, 590, 20 Cal.Rptr.2d 638, 853 P.2d 1093;  People v. Welch (1993) 5 Cal.4th 228, 234-235, 19 Cal.Rptr.2d 520, 851 P.2d 802.) 7

 This forfeiture rule extends to claims based on the alleged violations of fundamental constitutional rights.  (People v. Barnum, supra, 29 Cal.4th at p. 1224, 131 Cal.Rptr.2d 499, 64 P.3d 788;  People v. Saunders, supra, 5 Cal.4th at p. 590, 20 Cal.Rptr.2d 638, 853 P.2d 1093.)   And it extends to challenges to the composition and procedure of the jury.   (People v. Holt (1997) 15 Cal.4th 619, 656, 63 Cal.Rptr.2d 782, 937 P.2d 213;  People v. Vera, supra, 15 Cal.4th at p. 274, 62 Cal.Rptr.2d 754, 934 P.2d 1279;  People v. Johnson (1993) 6 Cal.4th 1, 23, 23 Cal.Rptr.2d 593, 859 P.2d 673;  People v. Saunders, supra, 5 Cal.4th at pp. 589-590, 20 Cal.Rptr.2d 638, 853 P.2d 1093.)

 Accordingly, the forfeiture rule applies to claims of Blakely error for the following reasons:  First, Blakely establishes a rule of federal constitutional law.   No state court has held that the discretion granted trial judges by California's sentencing laws violates our state Constitution.   Second, the United States Supreme Court has held (1) the Apprendi rule is not a substantive rule that alters the range of conduct or the class of persons that the law punishes;  rather, it is a procedural rule that affects only the manner of determining the defendant's culpability, and (2) the Apprendi rule is not a “watershed rule of criminal procedure” that implicates the fundamental fairness and accuracy of criminal proceedings.  (Schriro v. Summerlin (2004) 542 U.S. 348, 348, 124 S.Ct. 2519, 2520-2521, 159 L.Ed.2d 442, ----.)  Third, in Cotton, the United States Supreme Court established that the forfeiture rule may properly be applied to claims of Apprendi error, and thus by extension to Blakely error.   Fourth, our state Supreme Court has held that in considering the nature and effect of federal constitutional claims, we must apply federal standards.  (People v. Howard (1992) 1 Cal.4th 1132, 1178, 5 Cal.Rptr.2d 268, 824 P.2d 1315;  see also People v. Flood (1998) 18 Cal.4th 470, 489-490, 502-503, 76 Cal.Rptr.2d 180, 957 P.2d 869.)   Fifth and finally, in People v. Cahill (1993) 5 Cal.4th 478, 20 Cal.Rptr.2d 582, 853 P.2d 1037 (hereafter Cahill ), our state Supreme Court expressed a concern identical to that stated by the United States Supreme Court in Cotton, which held that the reversal of a judgment despite overwhelming and uncontroverted evidence because of an error to which an objection was not raised in the trial court would pose a real threat to the “fairness, integrity, and public reputation of judicial proceedings.”  (Cotton, supra, 535 U.S. at p. 634, 122 S.Ct. at p. 1787, 152 L.Ed.2d at pp. 869-870.)   Abandoning a reversal-per-se rule, the court in Cahill stated that in the face of overwhelming evidence clearly establishing the defendant's guilt, “reversal of the judgment will result either in a superfluous retrial in which the outcome is a foregone conclusion or, even more unfortunately, in a new trial whose result is altered by the loss of essential witnesses or testimony through the passage of time.   In either event, public confidence in the operation of the criminal justice system is diminished.”  (Cahill, supra, 5 Cal.4th at p. 509, 20 Cal.Rptr.2d 582, 853 P.2d 1037.)

It follows that, consistent with federal constitutional standards, a forfeiture rule applies to claims of Blakely error.8

C

As we will explain, the forfeiture rule set forth in Cotton, supra, 535 U.S. 625, 122 S.Ct. 1781, 152 L.Ed.2d 860 applies to defendant's failure to challenge the upper term and consecutive terms in this case.

 The trial court's statement of reasons for sentencing choices

 The probation report identified various circumstances in aggravation pursuant to California Rules of Court, rule 4.421, and no circumstances in mitigation other than defendant's youth at 25 years of age.  (Further rule references are to the California Rules of Court.)

The report reflects that defendant has two prior convictions involving violence.   In 1995, he was convicted in the State of Indiana for “criminal recklessness,” based upon an incident in which he pulled out a gun, threatened to kill the victim, and then fired at the victim, wounding him in the head, as the victim tried to drive away.   In 2000, he was convicted of felony spousal abuse based upon an incident in which he forced “the mother of his children” into a car at gunpoint, hit, kicked, and strangled her, and then fired two shots into the air.   The report further showed that defendant was on probation for the 2000 conviction when he committed the crimes for which he was convicted in this case, and that his performance on probation had been unsatisfactory because, among other things, he had failed to complete a batterers' treatment program, had violated a restraining order, had stolen his former wife's car keys, had lied to probation staff, and had been involved in an altercation at the Changing Courses program.

Defendant did not exercise his right to “submit a statement in aggravation or mitigation to dispute facts in the record or the probation officer's report, or to present additional facts ․” (§ 1170, subd. (b).)

The trial court explained its sentencing choices in pertinent part as follows:

“Pursuant to Penal Code Section 1203[, subdivision] (k), the defendant is ineligible for probation.   Even if the defendant had been eligible for probation, the court would not have ordered probation in this case based on the defendant's significant prior record of criminal conduct, within the meaning of Rule of Court 4.414(b)(1), as well as the seriousness and circumstances of the crime which warrant a state prison commitment, within the meaning of Rule 4.414(a)(1).

“The court also finds that the defendant inflicted physical injury upon the victim, within the meaning of Rule of Court 4.414(a)(4).

“The court has considered the following circumstances in aggravation:

“Pursuant to Rule of Court 4.421(a)(1), (a)(8), (b)(1), (b)(2), (b)(4) and (b)(5), the court finds that the crime [in count one, corporal injury on former spouse, Tamara Sample] involved great violence and great bodily injury, disclosing a high degree of cruelty, viciousness or callousness;

“The court finds the manner in which the crime was carried out indicated planning and sophistication;

“The court finds the defendant has engaged in violent conduct, which indicates a serious danger to society;

“The court finds the defendant's prior convictions as an adult are numerous and of increasing seriousness;

“The court finds the defendant was on a grant of formal probation when the crime was committed;

“And the court further finds the defendant's prior performance on probation was unsatisfactory.

“The one circumstance in mitigation under Rule 4.408 is that the defendant was youthful at the time he committed the offense.

“Regarding sentencing, the court has considered the applicability of Penal Code Section 654 and Rule of Court 4.424[ ], that is, the court finds the commission of the crime in Count Two [assault with deadly weapon] occurred during a continuous course of criminal conduct where the defendant harbored a single criminal objective, and, therefore, sentencing as to that count will be stayed pursuant to Penal Code Section 654.

“The court has considered Rule of Court 4.425 and the criteria affecting consecutive or concurrent sentences under subsection (a)(2) and (a)(3).   The court finds that the crimes in Docket 01F07726 involve separate acts of violence or threats of violence.

“The court further finds the crimes in Counts One and Three of Dockets 01F07726 and 00F01775 [a section 273.5 conviction for corporal injury on spouse in 2000, and the August 2001 firearm possession] were committed at different times or separate places rather than being committed so close in time and place as to indicate a single period of aberrant behavior.   Therefore, the court finds that consecutive sentencing is appropriate.

“Accordingly, as to Count One, a violation of Penal Code Section 273.5, the court will designate this count as the principal term.   As to this count, it is ordered the defendant be committed to state prison for the high term of five years.

“The high term is ordered given the planning and sophistication involved, within the meaning of Rule of Court 4.421(a)(8).

“And the court further finds that the crime and-the fact the defendant was on probation when the crime was committed under Rule 4.421(b)(4).

“As to the enhancement pursuant to Penal Code Section 12022.7 [, subdivision] ( [e] ), it is ordered the defendant be sentenced to the high term of five years state prison.   This is ordered to run consecutive[ly].

“The high term is ordered given the violence and the degree of cruelty, viciousness and callousness, within the meaning of Rule of Court 4.421(a)(1).

“The court finds as to both that count and the enhancement that the aggravating factors substantially outweigh any mitigating factors.

“As to Count Two, it is ordered the defendant be sentenced to four years state prison.   Sentencing on this count is stayed pursuant to Penal Code Section 654.

“As to Count Three, for which the defendant was previously sentenced to eight months state prison, it is now ordered that be set as one-third of the midterm of two years, or eight months, in state prison.   It is ordered to be served consecutively.

“In regard to Docket Number 00F01775, of which the defendant was previously sentenced to four years state prison, it is now ordered that this offense become a subordinate term and the defendant be ordered to serve one-third the midterm of three years, or one year, to be served consecutively.   Consecutive sentencing is ordered pursuant to Rule of Court 4.425(a)(2) and (a)(3) [crimes involving separate acts of violence, and crimes committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior].”

 The upper term

We reiterate that in Cotton, supra, 535 U.S. 625, 122 S.Ct. 1781, 152 L.Ed.2d 860, the United States Supreme Court held that a defendant's failure to object to Apprendi error in the trial court forfeits the right to raise the claim on appeal if the error did not seriously affect the fairness, integrity, and public reputation of the judicial proceedings, i.e., if a factor relied upon by the trial court in violation of Apprendi was uncontroverted at trial and supported by substantial evidence.   Such is the case here.

As noted above with respect to count one, corporal punishment on his former spouse, Tamara Sample, the trial court found five factors in aggravation:  the crime involved a high degree of cruelty, viciousness, or callousness;  it was carried out in a manner that indicated planning and sophistication;  the defendant had engaged in violent conduct, which indicated a serious danger to society;  his prior convictions as an adult were numerous and of increasing seriousness;  he was on a grant of formal probation when the crime was committed;  and his prior performance on probation was unsatisfactory.   However, in imposing the upper term, the court relied upon only two of them:  the crime involved planning and sophistication;  and defendant was on probation when he committed the crime.

 Overwhelming evidence presented at trial established defendant was on probation when he committed the crime alleged in count one, that fact was uncontested, and defendant did not object when the fact was used to impose the upper term.   One valid factor is sufficient to expose defendant to the upper term.  (People v. Cruz (1995) 38 Cal.App.4th 427, 433, 45 Cal.Rptr.2d 148.)

Consequently, imposition of the upper term did not seriously affect the fairness, integrity, and public reputation of the judicial proceedings;  and defendant has forfeited his right to raise Apprendi /Blakely error on appeal.  (Cotton, supra, 535 U.S. at pp. 631-634, 122 S.Ct. at pp. 1785-1787, 152 L.Ed.2d at pp. 868-870.)

 In any event, as a factor in aggravation, the court found that defendant has prior convictions of increasing seriousness as an adult.   As the Supreme Court stated in Apprendi and reiterated in Blakely, the Sixth Amendment of the United States Constitution permits the fact of a prior conviction to be used to increase a defendant's sentence without that fact having been tried to a jury and proved beyond a reasonable doubt.  (Blakely, supra, 542 U.S. at pp. 300-302, 124 S.Ct. at p. 2536, 159 L.Ed.2d at p. 412;  Apprendi, supra, 530 U.S. at p. 490, 120 S.Ct. at pp. 2362-2363, 147 L.Ed.2d at p. 455.)   We conclude beyond a reasonable doubt that if the trial court had anticipated the holding in Blakely, it would have cited defendant's prior convictions as a basis for the upper term.   Hence, its reliance on other factors is harmless.

 The consecutive sentences

 We conclude that the rule of Apprendi and Blakely does not apply to California's consecutive sentencing scheme.   Therefore, not only did the failure to object in the trial court forfeit defendant's right to raise an Apprendi /Blakely challenge to his consecutive sentences, his contention fails on the merits.

The first paragraph of section 669 states in pertinent part:  “When any person is convicted of two or more crimes, whether in the same proceeding or court or in different proceedings or courts, and whether by judgment rendered by the same judge or by different judges, the second or other subsequent judgment upon which sentence is ordered to be executed shall direct whether the terms of imprisonment or any of them to which he or she is sentenced shall run concurrently or consecutively.”

The second paragraph of section 669 states:  “In the event that the court at the time of pronouncing the second or other judgment upon that person had no knowledge of a prior existing judgment or judgments, or having knowledge, fails to determine how the terms of imprisonment shall run in relation to each other, then, upon that failure to determine, or upon that prior judgment or judgments being brought to the attention of the court at any time prior to the expiration of 60 days from and after the actual commencement of imprisonment upon the second or other subsequent judgments, the court shall, in the absence of the defendant and within 60 days of the notice, determine how the term of imprisonment upon the second or other subsequent judgment shall run with reference to the prior incompleted term or terms of imprisonment.   Upon the failure of the court to determine how the terms of imprisonment on the second or subsequent judgment shall run, the term of imprisonment on the second or subsequent judgment shall run concurrently.”

 Thus, section 669 imposes an affirmative duty on a sentencing court to determine whether the terms of imprisonment for multiple offenses are to be served concurrently or consecutively.  (In re Calhoun (1976) 17 Cal.3d 75, 80-81, 130 Cal.Rptr. 139, 549 P.2d 1235.)   However, that section leaves this decision to the discretion of the sentencing court.  (People v. Jenkins (1995) 10 Cal.4th 234, 255-256, 40 Cal.Rptr.2d 903, 893 P.2d 1224.)   “While there is a statutory presumption in favor of the middle term as the sentence for an offense [citation], there is no comparable statutory presumption in favor of concurrent rather than consecutive sentences for multiple offenses except where consecutive sentencing is statutorily required.   The trial court is required to determine whether a sentence shall be consecutive or concurrent but is not required to presume in favor of concurrent sentencing.”  (People v. Reeder (1984) 152 Cal.App.3d 900, 923, 200 Cal.Rptr. 479.)

Section 669 provides that upon the sentencing court's failure to determine whether multiple sentences shall run concurrently or consecutively, then the terms shall run concurrently.   This provision reflects the Legislature's policy of “speedy dispatch and certainty” of criminal judgments and the sensible notion that a defendant should not be required to serve a sentence that has not been imposed by a court.  (See In re Calhoun, supra, 17 Cal.3d at p. 82, 130 Cal.Rptr. 139, 549 P.2d 1235.)   This provision does not relieve a sentencing court of the affirmative duty to determine whether sentences for multiple crimes should be served concurrently or consecutively.  (Ibid.) And it does not create a presumption or other entitlement to concurrent sentencing.   Under section 669, a defendant convicted of multiple offenses is entitled to the exercise of the sentencing court's discretion, but is not entitled to a particular result.

 In determining whether to impose concurrent or consecutive terms, a sentencing court should consider whether the crimes and their objectives were predominately independent of each other, whether the crimes involved separate acts of violence or threats of violence, whether the crimes were committed at different times or separate places, any circumstances in aggravation or mitigation, and any other criteria reasonably related to the decision.  (Rules 4.408, 4.425.) 9  Upon consideration of relevant criteria, the court is required to “[d]etermine whether the sentences shall be consecutive or concurrent if the defendant has been convicted of multiple crimes.” (Rule 4.433, subd. (c)(3).)   The sentencing rules do not create a presumption in favor of concurrent sentencing.

A sentencing court is required to state reasons for its sentencing choices, including a decision to impose consecutive sentences.  (Rule 4.406(b)(5);  People v. Walker (1978) 83 Cal.App.3d 619, 622, 148 Cal.Rptr. 66.)  “[A] requirement of articulated reasons to support a given decision serves a number of interests:  it is frequently essential to meaningful review;  it acts as an inherent guard against careless decisions, insuring that the judge himself analyzes the problem and recognizes the grounds for his decision;  and it aids in preserving public confidence in the decision-making process by helping to persuade the parties and the public that the decision-making is careful, reasoned and equitable.”  (People v. Martin (1986) 42 Cal.3d 437, 449-450, 229 Cal.Rptr. 131, 722 P.2d 905.)   But the requirement that reasons for a sentence choice be stated does not create a presumption or entitlement to a particular result.  (See In re Podesto (1976) 15 Cal.3d 921, 937, 127 Cal.Rptr. 97, 544 P.2d 1297.)

Therefore, entrusting to trial courts the decision whether to impose concurrent or consecutive sentencing under our sentencing laws is not precluded by the decision in Blakely.   In this state, every person who commits multiple crimes knows that he or she is risking consecutive sentencing.   While such a person has the right to the exercise of the trial court's discretion, the person does not have a legal right to concurrent sentencing, and as the Supreme Court said in Blakely, “that makes all the difference insofar as judicial impingement upon the traditional role of the jury is concerned.”  (Blakely, supra, 542 U.S. at p. 309, 124 S.Ct. at p. 2540, 159 L.Ed.2d at p. 417.)

Accordingly, the rule of Apprendi and Blakely does not apply to California's consecutive sentencing scheme.

For this reason, not only has defendant forfeited his claim of Blakely error with respect to his consecutive sentences, the claim fails on the merits.

In any event, consistent with the reasons given by the trial court for imposing the consecutive sentences, the verdicts reflect findings that the crimes covered by counts one, three, and the prior conviction for spousal abuse were committed against separate victims, at different times, and in different places, thus exposing defendant to the sentence imposed.

DISPOSITION

The judgment is affirmed.   The trial court is directed to (1) amend the abstract of judgment to show a concurrent sentence of one year was imposed on the battery conviction, and the great bodily injury enhancement was imposed under subdivision (e) of section 12022.7, and (2) forward a certified copy of the amended abstract to the Department of Corrections.

FOOTNOTES

1.   The trial court gave a limiting instruction telling the jurors that the 9-1-1 call was being introduced not for the truth of its contents, but only to explain the officer's actions.

2.   During his visit, Kelcey Sample stayed some nights at Woods's apartment and other nights in a motel or at the home of Tamara Sample, defendant's former wife.   For simplicity and to avoid confusion, we will refer to Kelcey Sample and Tamara Sample by their first names.

3.   The abstract of judgment does not reflect the term of one year imposed on the misdemeanor battery, and the abstract incorrectly cites section “12022.7(a)” as the basis for the five-year sentencing enhancement, rather than section 12022.7, subdivision (e), which was charged and found true by the jury.   We shall direct the trial court to correct these clerical errors in the abstract.

FOOTNOTE.   See footnote *, ante.

6.   Federal Rules of Criminal Procedure (18 U.S.C.) 52(a) provides:  “Any error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.”   Federal Rules of Criminal Procedure (18 U.S.C.) 52(b) states:  “A plain error that affects substantial rights may be considered even though it was not brought to the court's attention.”

7.   Until recently, state appellate courts used the terms “waiver” and “forfeiture” interchangeably in discussing the effect of a lack of objection in the trial court.  (Cowan v. Superior Court (1996) 14 Cal.4th 367, 371, 58 Cal.Rptr.2d 458, 926 P.2d 438;  People v. Saunders, supra, 5 Cal.4th at p. 590, fn. 6, 20 Cal.Rptr.2d 638, 853 P.2d 1093.) Strictly speaking, a waiver is the intentional relinquishment or abandonment of a known right, whereas a forfeiture results from the failure to timely assert a right;  thus, “forfeiture” is the correct legal term to describe the loss of the right to raise an issue on appeal due to the failure to raise it in the trial court.  (In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2, 13 Cal.Rptr.3d 786, 90 P.3d 746.)

8.   Indeed, in People v. Marchand (2002) 98 Cal.App.4th 1056, 120 Cal.Rptr.2d 687, this court held the forfeiture rule is applicable to alleged Apprendi error when there was no objection in the trial court.   (Id. at pp. 1060-1061, 120 Cal.Rptr.2d 687.)

9.   The court should not consider an aggravating fact that was used to impose the upper term, used to otherwise enhance the prison sentence, or that is an element of the offense.  (Rule 4.425, subd. (b).)

SCOTLAND, P.J.

We concur:  SIMS and BUTZ, JJ.

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