PEOPLE v. FERRIS (1983)

This appeal by Mark Clinton Ferris presents the following issues:

1. Was the trial court mandated to suspend criminal proceedings and institute mentally disordered sex offender (MDSO) proceedings pursuant to Welfare and Institutions Code 1 section 6302, subdivision (c), then in effect?

2. Was appellant's sentence cruel and unusual punishment in violation of state and federal Constitutions?

3. Did the trial court err at time of sentencing by applying the dual use of facts to both enhance and aggravate the prison term imposed?

PROCEDURAL BACKGROUND

A six count information charged Ferris in count one with robbery (Pen.Code, § 211), count two—assault with a deadly weapon and force likely to produce great bodily injury (GBI) (Pen.Code, § 245(a)), counts three and five—forcible oral copulation (Pen.Code, § 288a, subdivision (c)), count four—false imprisonment (Pen.Code, § 236) and count six—attempted robbery (Pen.Code, §§ 664, 211).   Count three alleged Ferris was 24 years old and the victim was 10 years old.   The information further alleged Ferris inflicted GBI (Pen.Code, § 12022.7) in the commission of counts one and two and inflicted GBI (Pen.Code, § 12022.8) in the commission of count five.

In the superior court, Ferris pled guilty to all six counts and admitted the enhancements as alleged.   Ferris stipulated the court could consider the preliminary hearing transcript for the factual basis of the plea and, necessarily, for sentencing or further proceedings.

On August 28, 1981, the court denied probation and sentenced Ferris as follows:

The sentences on counts two, four and six were stayed.   The grand total of the consecutive sentences was 22 years in state prison.

FACTS

In light of the issues raised, a brief statement of the events is required.

Ferris entered a flower shop, where Mrs. S. worked, on the pretense of buying flowers for his daughter's wedding.   He announced, “This is a robbery, if you don't want your daughter to get hurt, give me all the money you have.”   Mrs. S. saw Ferris was pointing with an object under his jacket.   She could not see what it was.   On demand, Tanya, Mrs. S.'s 10-year-old daughter, took money from the register.   Mrs. S. gave it to Ferris, who then, holding Tanya, took both to a back room.   Ferris now wanted Mrs. S.'s purse;  Tanya replied it was under the front desk.   Holding Tanya by the waist, Ferris pushed Mrs. S. into a restroom where he told her to remove her clothes.   She refused.   He responded by punching her in the face, causing her to fall to the ground with a bloody nose.   He hit her approximately 10 more times.

Apparently, to cause Ferris to stop the beating, Tanya removed her own clothing.   Ferris then forced Tanya to orally copulate his penis.   Not bearing to watch this spectacle, Mrs. S. said, “I'll do it.”   She copulated him once with a bloody face.   After she washed her face, Ferris forced her to copulate him twice more.

Ferris now demanded a ring she was wearing.   She refused, explaining it was a gift from her husband.   When Mrs. S.'s eight-year-old son David entered the front of the store, Ferris grabbed him and brought him to the restroom, closing the door.   Once again he tried to take the ring from her finger.   Her clinched fist frustrated his effort.   He punched her in the neck.   She then saw his weapon was a screwdriver.   She told Ferris she heard someone in the front of the store.   As he left the restroom, she quickly locked the door.   He pounded to get back in but was unsuccessful.   Sometime later a neighboring merchant entered the store and Mrs. S. and her children came out of the locked restroom.   Mrs. S. sustained a broken rib during the beating.

A. Suspension of Criminal Proceedings

Ferris argues the court erred in not suspending proceedings following his plea so he could be examined as a possible MDSO pursuant to section 6302, subdivision (c).²  There is no contention that recently effective Penal Code section 1364, which abolishes MDSO hearings, is somehow retroactive.   The Attorney General does claim, however, because Ferris was statutorily ineligible for probation,³ an MDSO hearing was unnecessary and improper.   Its position is untenable.   First, Penal Code section 1203.065, subdivision (a), does not prohibit the suspension of criminal proceedings for MDSO examinations and hearings.   It is apparent the Legislature, up until 1982, intended the sentencing judge to refer every person convicted of Penal Code section 288a, subdivision (c), for examination and hearing to determine MDSO status.   Ferris was in this class.

The Attorney General correctly summarizes the holdings in People v. Brown (1968) 260 Cal.App.2d 434, 67 Cal.Rptr. 238, which stands for the proposition MDSO proceedings are inappropriate where the defendant is statutorily ineligible for probation.  Brown, however, was based on old section 5500.5.⁴  The statutory language relied upon in Brown was deleted by Statutes 1976, chapter 1101, section 2 (Welf. & Inst.Code, § 6302).   Accordingly, Brown ⁵ is no authority for current statutory interpretation.   Respondent also contends Ferris' record of violence, denial of alcohol and drug problems, and the growing seriousness of his crimes would render him unamenable to treatment.   This may be true;  however, section 6316 does not permit the trial judge to make such a finding until after an examination and hearing.

Respondent further argues the probation report somehow resolves the MDSO proceedings issue, referring perhaps to that portion of the probation officer's report reciting MDSO proceedings “had been resolved on the basis of evaluations completed by Doctors Rosenstein and Sharma.” ⁶  Sections 6300 et seq., then in effect, prescribed the means by which a judge was to make an MDSO finding, including examination, hearing, and formal findings.   The record in this case shows no such procedure was followed.

Anticipating an issue not raised by respondent, Ferris asserts the MDSO proceedings are nonwaivable.  (People v. Garn (1966) 246 Cal.App.2d 482, 486, 54 Cal.Rptr. 867.)   We observe nowhere in the trial court proceedings or on the change of plea form is any reference made to MDSO proceedings.   In accepting the defendant's plea, the trial judge told Ferris, “I will tell you in advance that you are going to go to state prison.”   At sentencing, when asked if there was any legal reason why sentence should not be pronounced, neither Ferris nor his counsel raised the issue of suspending criminal proceedings for an MDSO examination.   While we are tempted to find such acquiescence is tantamount to a waiver, the reasoning behind the Garn decision compels us to find Ferris and his counsel could not plea bargain away the MDSO proceedings.

 We conclude the trial judge committed error in not suspending criminal proceedings in accordance with section 6300 et seq.   The next inquiry is what, if any, is the defendant's remedy?

In Baker v. Superior Court (1982) 137 Cal.App.3d 881, 187 Cal.Rptr. 328, the court held the repeal of the MDSO statutes also resulted in the repeal of the court's authority to recommit MDSO's.⁷  “[S]ince section 6316 did not exist at the time the petitioners' hearings were held [after Jan. 1, 1982], there was nothing to authorize the court's acts;  it lacked jurisdiction to hear these matters.”  (Id., at p. 886, 187 Cal.Rptr. 328.)   The issue in the present case is whether we can order a remand with directions to the trial court to suspend criminal proceedings, order a psychiatric examination, and conduct an MDSO hearing.

It might be argued Baker applies to re commitments only, not to initial MDSO commitment proceedings.   Further, had the trial court not committed error, criminal proceedings against Ferris would have been suspended at the time of the probation hearing (Aug. 28, 1981) and Ferris would have received the mandated MDSO evaluation and hearing.   Finally, had the MDSO examination and/or hearing somehow been calendared for after January 1, 1982, the trial court could not have been deprived of jurisdiction to conduct MDSO proceedings;  otherwise, the repeal would run afoul of the ex post facto laws proscription in our state and federal Constitutions.

In his appeal Ferris apparently assumes he has a vested right to a particular procedure which, in turn, gives him an opportunity ⁸ for medical treatment.   No such right exists.   The manner and extent of punishment and treatment of criminal offenders rests with the Legislature.   While repealing section 6316, the Legislature enacted Penal Code section 1364, authorizing treatment of a certain class of sex offenders, of which defendant is a member.   The treatment under the new law is through the Department of Corrections and occurs on a voluntary basis during the last two years of the prison term.   True, Ferris is denied possible treatment at the outset of his confinement;  however, he is not deprived of the opportunity for treatment.   Perhaps our Legislature has concluded medical processing of treatable persons convicted of serious sex offenses should occur at the end of their punishment and just prior to being released.   We cannot disagree with the Legislature's wisdom;  indeed, the procedural scheme makes more sense than the old MDSO proceedings where the trial court went through the statutory motions, knowing it would nevertheless commit the defendant to state prison because of the enormity of the crime.

 We conclude the changed statutory scheme (1) does not deprive Ferris of a fundamental right and (2) divests the trial court of jurisdiction to conduct MDSO proceedings, notwithstanding its sentencing error.   Defendant's remedy lies with the Department of Corrections.   Any medical treatment will be that authorized under Penal Code section 1364.

B. Cruel and Unusual Punishment

 Ferris launches a constitutional attack on Penal Code 9 section 667.6, subdivision (d), which mandates the sentencing court impose full and consecutive terms for each act of forcible oral copulation.   Here, the sentencing mandate augmented Ferris' total term by six years, which he claims proper application of section 1170.1, subdivision (a), would have spared him.   Ferris' cruel and unusual punishment attack on section 667.6, subdivision (d), was considered and rejected in People v. Preciado, supra, 116 Cal.App.3d 409, 172 Cal.Rptr. 107.   Ferris seeks to distinguish Preciado, contending that Preciado's sex crimes were violent and manifested recidivism.   He also alludes to a proportionality challenge.   The plain facts of this case are that Ferris is a recidivist and committed sex acts while inflicting a severe beating on Mrs. S.   The sentencing judge observed, this is “one of the most aggravated sexual assaults that the court has seen.”   If anything, Ferris is being treated equally (or in proportion) to Preciado.

C. Dual Use of Facts

California Rules of Court rule 441(b) ¹⁰ reads:

“A fact charged and found as an enhancement may be used to impose the upper term, whereupon the additional term of imprisonment prescribed for that fact as an enhancement shall be stricken.   The use of the fact to impose the upper term is an adequate reason for striking the additional term of imprisonment.”

Rule 441(c) provides:  “A fact used to enhance the defendant's prison sentence may not be used to impose the upper term.”  Rule 441(d) further provides:  “A fact which is an element of the crime may not be used to impose the upper term.”   In criminal law jargon, these sections are referred to collectively as the “dual use of facts proscription.”   Ferris contends the sentencing judge, in giving reasons for upper terms and enhancements, ran afoul of this proscription.   We analyze each contention separately.

1. Use of “great bodily injury” to aggravate prison term on count five (forcible oral copulation on Mrs. S.) and to add the five-year enhancement (GBI):

 The sentencing judge imposed the aggravated (upper) term of eight years for count five and found Penal Code section 12022.8 allegation of GBI ¹¹ true, thereby enhancing the base term by five years.   The court gave these reasons, in part, for the aggravated term on count five:  “The crime involved great violence, great bodily harm, and disclosed a high degree of cruelty.”   The judge gave other reasons as well, including defendant was armed with a deadly weapon, multiple and vulnerable victims, numerous prior convictions, and performance on probation was unsatisfactory.   Ferris cites People v. Garfield (1979) 92 Cal.App.3d 475, 479, 154 Cal.Rptr. 869, as authority for the impropriety of the dual use of GBI findings.   However, the Garfield decision suggests as long as there are ample other valid reasons for the aggravated term, the included use of the otherwise proscribed GBI enhancement fact would “support” the court's imposition of the upper term.   (Ibid.)

2. Violence Inherent in Forcible Sex Crimes

Ferris contends it is improper for a sentencing judge to use “great violence” and “a high degree of cruelty” to aggravate a prison term for count five (forcible oral copulation involving Mrs. S.) because cruelty and violence are inherent in forcible sex crimes.   Ferris relies on rule 441(d) and People v. Lee (1980) 110 Cal.App.3d 774, 785, 168 Cal.Rptr. 231.   The Lee court observed cruelty and violence may be inherent in forcible rape itself but held other factors considered by the sentencing judge supported the imposition of the upper term.   The Attorney General contends the force used here on Mrs. S. went far beyond that necessary to commit forcible oral copulation.

 From the record, we view the trial court's analysis as follows:  (1) the great bodily injury facts—Mrs. S.'s broken rib—were the basis for the GBI enhancement and would otherwise merge with the “great violence” and “a high degree of cruelty” contemplated for an aggravated term, but (2) punching Mrs. S. in the face and later inflicting a beating in the restroom in the immediate presence of her minor child are far beyond the cruelty and violence necessary to accomplish a forcible sex crime.   These are sufficient articulable facts to support the giving of the aggravated term.  (See, e.g., People v. Hawk (1979) 91 Cal.App.3d 938, 154 Cal.Rptr. 773.)

3. Multiple victims in count five:

Citing People v. Powell (1980) 101 Cal.App.3d 513, 518–519, 161 Cal.Rptr. 803, Ferris argues section 667.6, subdivision (d), which requires sentences on count three (Tanya) and count five (Mrs. S.) run consecutive (because they involve different victims) bars the use of that same fact to aggravate count five.   After all, he argues, a consecutive sentence is an enhancement.   Ferris misreads Powell.   In Powell the precise holding was the trial judge “correctly did not use [the infliction of great bodily injury on the principal victim] as an aggravating factor since it was being recognized for enhancement pursuant to Penal Code section 12022.7.”  (Id., at p. 519, 161 Cal.Rptr. 803.)   However, the fact there were multiple victims of the robberies was properly considered in consecutive sentencing.  (Id., at p. 518, 161 Cal.Rptr. 803.)

A review of cases under the Determinate Sentencing Law (DSL) fails to produce any authority directly answering Ferris' contention.   To resolve this issue we must decide whether the Legislature intended a consecutive sentence to be considered an enhancement to a base term.   If so, section 1170, subdivision (b), prohibiting use of the same fact to both aggravate and enhance, applies.

The Legislature delegated rule making power under the DSL to the Judicial Council.   The council promulgated certain sentencing rules, including rule 405(c), California Rules of Court, defining “enhancement” as “an additional term of imprisonment added to the base term.”   The Advisory Committee Comment to this rule suggests consecutive prison terms are contemplated as enhancements.¹²  We are impressed also the Judicial Council was concerned with preventing double punishment emanating from the dual use of facts.  (See Cal. Rules of Court, rule 441.)

 We conclude where section 667.6 subdivision (d), mandates a full, separate and consecutive term for specified crimes involving a separate victim, that very fact—a separate victim—may not be used to aggravate the base term.   To hold otherwise would result in the same fact being used to both aggravate and enhance.

The Attorney General alternatively argues Mrs. S.'s son David was also a victim of count five.   On that basis we are asked to find the trial court permissibly ruled there were multiple victims.   It may be argued David was not the victim of the forced oral copulation because the sex acts were committed before he was brought into the restroom and he was never a witness to the sex act(s).   David, however, was a victim in the general sense.   First, he was the victim in count four (false imprisonment).   Second, he was a witness to his mother's further beating.

 Who is and who is not a victim of a particular crime is open to question.   Whether an individual is victimized as a result of the entire transaction we are better able to ascertain by considering the totality of circumstances on a case by case basis.   Here, David was necessarily terrorized in watching the defendant administer a blow to his mother in an effort to rob her of her ring, all within the confines of a small restroom.   The circumstance he was absent moments earlier when Ferris forced both his mother and sister to copulate him we find fortuitous and otherwise immaterial.   The several crimes here were committed in one continuous transaction.   We find David a victim of the entire criminal transaction.   Since Ferris received no enhancement for count two, the court could properly specify David as the “multiple victim” of count five for purposes of aggravating the base term.

4. Vulnerability of the three victims:

 When an element of the offense is that the victim be a minor, the trial court may not aggravate the prison term by finding the victim was particularly vulnerable simply because the victim is a minor.  (People v. Flores (1981) 115 Cal.App.3d 924, 927, 171 Cal.Rptr. 777.)   The victim's age alone, without more, in sex crimes on children does not support a finding of vulnerability.  (People v. Ginese (1981) 121 Cal.App.3d 468, 175 Cal.Rptr. 383.)   In the present case the prosecutor argued circumstances other than age to show the mother and daughter were particularly vulnerable.   Nonetheless, the trial court, in stating its reasons for the upper term, simply said:  “The victims were particularly vulnerable.   The crime involved multiple victims.”   The court did not expand on what it meant by “particularly vulnerable.”   Ferris assumes the reference is to the age of Tanya and/or David.

This court should attribute to the trial court powers of reason and analysis, allowing the judge to draw fair inferences from the facts and permitting the judge to state findings in conclusionary form.   Only where the record will not support a finding, or supports an impermissible finding, will the matter be remanded for resentencing.

 Here, we know the trial judge considered the preliminary hearing transcript, the probation report, and the prosecutor's oral comments.   Aside from the age of two of the three victims, all were confined to a small room from which they could not escape and were grabbed by the defendant.   Mrs. S. was particularly vulnerable because she was acting under the reasonable but mistaken impression the defendant had a weapon which would be used on her and/or her daughter.   Her vulnerability is further borne out by the fact she, beaten and bloodied, consented to oral copulation as the only way to protect her daughter from further humiliation.   The record supports the judge's finding.

The defendant was properly sentenced.

Judgment affirmed.

FOOTNOTES

FOOTNOTE.  

FN1. All statutory references in the first part of the opinion are to the Welfare and Institutions Code, unless otherwise specified..  FN1. All statutory references in the first part of the opinion are to the Welfare and Institutions Code, unless otherwise specified.

2.   At the times relevant in this case the subdivision read:  “When a person is convicted of a sex offense involving a child under 14 years of age and it is a felony, the court shall adjourn the proceeding or suspend the sentence, as the case may be, and shall certify the person for hearing and examination by the superior court of the county to determine whether the person is a mentally disordered sex offender within the meaning of this article.”  (Italics added.)

3.   Penal Code section 1203.065, subdivision (a).

4.   This section read in part:  “[T]his chapter [providing for MDSO examinations and hearings] shall not apply ․ to any person ineligible for probation under the Penal Code.”

5.   The trial judge in Brown also found the defendant an MDSO without a hearing on that issue.

6.   The probation report summarized evaluations by Drs. Anderson and Sharma under Evidence Code section 730 and Penal Code section 1026.   Ferris had originally entered a not guilty by reason of insanity plea, which plea was later withdrawn.   The evaluations concluded Ferris was not insane;  they did not address the defendant's MDSO status.

7.   For a contrary result see People v. Superior Court (Martin), 132 Cal.App.3d 658, 183 Cal.Rptr. 563 (2d Dist., Div. 2 [pet. denied Aug. 4, 1982] ).

8.   The defendant knows, or should know, even an MDSO has no “right” to a state hospital commitment.   In People v. Preciado (1981) 116 Cal.App.3d 409, 172 Cal.Rptr. 107, the court held it was permissible for a trial court to find a defendant to be an MDSO who might benefit from treatment but nonetheless merits a state prison commitment.

FN9. All statutory references in the remaining portion of the opinion are to the Penal Code, unless otherwise specified..  FN9. All statutory references in the remaining portion of the opinion are to the Penal Code, unless otherwise specified.

10.   See also section 1170, subdivision (b):  “․  The court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under Section ․ 12022.7 [infliction of great bodily injury].”

11.   We assume, as does the defendant, the trial judge's reference to “great bodily injury” throughout count five is the broken rib suffered by Mrs. S.   The Attorney General suggests, but does not argue, the scratches, nosebleed and other trauma might constitute “great bodily injury.”   That term means “a significant or substantial physical injury.”  (§ 12022.7, applicable to the term as used in § 12022.8, the enhancement allegation to count five.)

12.   Advisory Committee Comment reads:  “ ‘Enhancement.’   The facts giving rise to an enhancement, the requirements for pleading and proving those facts, and the court's authority to strike the additional term are prescribed by statutes.   See sections 667.5 (prior prison terms), 1170.1(a) (consecutive prison terms ), 12022 (being armed with a firearm or using a deadly weapon), 12022.5 (using a firearm), 12202.6 (excessive taking or damage), 12022.7 (great bodily injury) and 1170.1(e) and (g) (pleading and proof, authority to strike the additional punishment).”  (Deering's Cal.Codes, anno., p. 105;  italics added.)

MOON, Associate Justice.* FN* Assigned by the Chairperson of the Judicial Council.

COLOGNE, Acting P.J., and WIENER, J., concur.