PEOPLE v. MAGGARD (1982)

Defendant appeals from a judgment of conviction entered upon pleas of guilty to forcible oral copulation (count 9—Pen.Code, § 288a, subd. (c); ¹  forcible rape (count 10—§ 261, subd. 2;  attempted forcible oral copulation (count 14—§ 664, § 288a, subd. (c));  forcible oral copulation (count 19—§ 288a, subd. (c);  forcible oral copulation (count 23—§ 288a, subd. (c));  forcible rape (count 24—§ 261, subd. 2) and forcible sodomy (count 25—§ 286, subd. (c)).  The defendant admitted use of a deadly weapon in the commission of the crimes alleged in counts 10, 19 and 25.²

The trial court designated count 10 as the principal term and sentenced defendant to the upper term of eight years plus one year consecutively for the weapons enhancement.   Sentence on the remaining counts was as follows:  count 9—upper term of eight years, consecutively;  count 14—middle term of three years, concurrently;  count 19—upper term of eight years consecutively plus one year consecutively for weapons enhancement, 8 months of the enhancement term stayed;  count 23—the upper term of eight years consecutively;  count 24—the upper term of eight years, consecutively;  and count 25—the upper term of eight years consecutively plus one year consecutively for weapons enhancement, 8 months stayed.   Defendant's aggregate unstayed term amounts to 49 years, eight months.

Defendant appeals contending the trial court erred in (1) refusing to institute mentally disordered sex offender (MDSO) proceedings;  (2) in failing to state reasons for imposing full consecutive terms pursuant to section 667.6, subdivision (c), rather than Penal Code section 1170.1;  (3) in failing to state adequate reasons for imposing full consecutive terms pursuant to section 667.6, subdivision (c);  and (4) in imposing a sentence that is both violative of law and a denial of equal protection because of the absence of uniform sentencing criteria to guide the trial court in sentencing defendant to separate, consecutive terms pursuant to Penal Code section 667.6, subdivision (c).   For reasons herein stated, we affirm the judgment.

Facts

Counts 9 and 10:  On June 23, 1980, defendant accosted Debbie S. at the door of her apartment and pulled her into the apartment with a knife at her throat.   He demanded money, ripped her clothes off, and dragged her around the apartment holding onto her hair.   He then put a pillow case over her head and attempted forcible oral copulation through the cloth.   Failing this, he forced her to her knees and forced her to orally copulate him.   He then raped her, during which he threatened to kill her with the knife if she resisted.

Count 14:  On July 26, 1980, defendant was waiting near the home of Janet B. when she returned from shopping.   Defendant followed her into the house, threatened her with a knife and demanded and received money.   He forced her to remove her clothes and asked if she liked oral copulation.   She then attempted to flee pursued by defendant, who dropped the knife.   Janet recovered it, a struggle ensued during which Janet's hands were cut by the knife.   She released the knife and defendant fled out the front door.

Count 19:  On August 4, 1980, when Holly W. returned from shopping defendant was waiting in her home.   He forced her to the floor, put adhesive tape over her eyes and bound her hands behind her with nylon hose, threatening to kill her if she moved.   After taking $115.00 from her purse, defendant grabbed her by the back of the head, forced his penis into her mouth and completed the act of oral copulation by ejaculating on her face and mouth.   He then left after placing her face down on the bed and warning her not to move.

Counts 23, 24, and 25:  On August 7, 1980, Bonnie L. returned home from shopping.   Defendant, armed with a knife, accosted Bonnie at her doorway, placed a knife at her throat and forced his way inside.   He ordered her to her knees in the hallway, bound her hands behind her with nylon stockings and placed adhesive tape over her eyes.   After trying to force her to drink liquor, he knocked her down.   He then pulled her up and kissed her several times.   He next slapped her, ripped off her blouse, cut off her brassiere and scraped the knife along her chest.   This conduct was followed by acts of forcible oral copulation, rape and sodomy.

I

 Defendant initially contends the trial court abused its discretion in failing to adjourn criminal proceedings and conduct a hearing to determine if he were a mentally disordered sex offender.  (Welf. & Inst.Code, § 6302.)   We disagree.

 In the case of certain adult offenders,³ the decision to institute MDSO proceedings lies within the sound discretion of the trial court.  (People v. Jackson (1963) 59 Cal.2d 375, 380, 30 Cal.Rptr. 329, 381 P.2d 1;  People v. Morgan (1956) 146 Cal.App.2d 722, 724–725, 304 P.2d 138;  People v. Goldstein (1981) 126 Cal.App.3d 550, 562, 178 Cal.Rptr. 894.)   Even a defendant determined to be a mentally disordered sex offender who could benefit by treatment has no “right” to such treatment.  (People v. Oglesby (1977) 67 Cal.App.3d 34, 38, 135 Cal.Rptr. 640.)  “[¶] It is held the trial court may in its discretion reject such mentally disordered sex offender proceedings when there is no medical or psychiatric evidence of sexual psychopathy (People v. Westbrook (1964) 62 Cal.2d 197, 205–206 [41 Cal.Rptr. 809, 397 P.2d 545];  People v. Barnett (1946) 27 Cal.2d 649, 657 [166 P.2d 4] ), or there appears to be no realistic chance of successful treatment as a mentally disordered sex offender (People v. Vallez (1978) 80 Cal.App.3d 46, 57 [143 Cal.Rptr. 914] ), or there is only the accused's expressed belief that he is such an offender (People v. Smith (1950) 100 Cal.App.2d 162, 165–166 [223 P.2d 82] ), or where the court reasonably concludes that appropriate treatment would be available within the more secure state prison system (People v. Preciado (1981) 116 Cal.App.3d 409, 412 [172 Cal.Rptr. 107]).”  (People v. Goldstein, supra, 126 Cal.App.3d at p. 562, 178 Cal.Rptr. 894.)

Before the court in this case was a defendant who had spent 16 of the prior 20 years incarcerated in state prison on a variety of sexually and nonsexually related offenses.   Also before the court were numerous psychiatric reports and evaluations prepared by employees of the Department of Corrections chronicling the defendant's participation in extensive psychiatric counseling and group and individual therapy.   The court was led to the ineluctable conclusion the psychotherapeutic treatment had been singularly unsuccessful in the past and there was no realistic chance of success in the future.   Implicit in the court's finding of excessive criminality is the finding that if the defendant possessed the capacity to benefit from any treatment, the state prison would be a more appropriate place for the administration of such treatment.   The court's findings are supported by substantial evidence and we find no abuse of discretion in its refusal to institute MDSO proceedings.  (People v. Vallez (1978) 80 Cal.App.3d 46, 57, 143 Cal.Rptr. 914;  People v. Goldstein, supra, 126 Cal.App.3d at p. 562, 178 Cal.Rptr. 894.)

II

 Defendant next contends the trial court erred in imposing full consecutive sentences pursuant to section 667.6, subdivision (c) ⁴ without stating reasons for sentencing pursuant to that section rather than section 1170.1, subdivision (a), which provides for one-third consecutive terms.

 The imposition of consecutive sentences is a sentence choice for which reasons must be stated.  (See People v. Bejarano (1981) 114 Cal.App.3d 693, 704, 173 Cal.Rptr. 71, and cases cited therein.)   However, we do not perceive that the discretionary choice to impose a full consecutive sentence pursuant to section 667.6, subdivision (c), is a distinct and separate sentencing choice requiring recitation of additional reasons.   However more severe the consequences may be for a defendant, a decision to impose consecutive sentences pursuant to section 667.6, subdivision (c), is a decision no different in kind than other consecutive sentencing decisions.

 Assuming arguendo that the decision to impose full consecutive terms pursuant to section 667.6 is a sentencing choice separate from the decision to sentence consecutively and one for which reasons must be articulated, the trial court stated reasons.   The consecutive terms were expressly imposed pursuant to section 667.6 and the reasons given were necessarily the reasons for sentencing under that section.

III

Aside from defendant's arguments that the trial court failed to state reasons for consecutive sentencing particularly applicable to section 667.6, subdivision (c), defendant further contends that the reasons the court did state were erroneous.

 The trial court stated reasons for consecutive sentencing without stating separate reasons for each consecutive term.   This was not necessary.   Section 1170, subdivision (b), does not prohibit the use of the same facts as reasons for the imposition of more than one consecutive sentence.  (People v. Bejarano (1981) 114 Cal.App.3d 693, 705, 173 Cal.Rptr. 71.)   Moreover, the trial court purported to impose each and every consecutive term pursuant to the discretion granted by section 667.6, subdivision (c).   As the defendant concedes, no reasons were required for imposition of consecutive sentences as to those counts involving separate victims.   Consecutive sentences are mandatory pursuant to section 667.6, subdivision (d).   Nothing else need be pled or proven and the trial court is deprived of any choice except to impose full, consecutive terms.  (See People v. Stought (1981) 115 Cal.App.3d 740, 742–743, 171 Cal.Rptr. 501.)

The court recited the following reasons for imposing consecutive terms for counts 9, 19, 23, 24, and 25:  (1) the convictions for which sentences were to be imposed were numerous (rule 425(a)(5));  (2) the crimes and their objectives were predominantly independent of each other (rule 425(a)(1));  and (3) the crimes involved separate acts of violence and threats of violence (rule 425(a)(2).   The trial court gave as an additional reason for counts 9, 19, and 23 the fact that the crimes were committed at different times and places rather than being committed so close in time as to indicate one period of aberrant behavior (rule 425(a)(3)).

 Both parties agree that because section 667.6, subdivision (d), mandates full consecutive terms for the crimes against separate victims, no reasons had to be stated in support of imposition of consecutive sentences for counts 19 and 23.   But defendant argues the court erred in stating reasons for imposing consecutive sentences for counts 19 and 23 when none was required.   We agree that the court need not have stated reasons, but we fail to see in what way defendant has suffered prejudice.   This was mere surplusage and does not require remand for deletion.

 Defendant concedes that the crimes committed were numerous but asserts the other two reasons recited by the trial court are inapplicable to the defendant's crimes.   Relying on dicta in People v. Lee (1980) 110 Cal.App.3d 774 at page 784, 168 Cal.Rptr. 231, defendant contends that all the crimes for which he was sentenced consecutively contained force or threat of force as one of their elements and therefore the court erroneously utilized an element of the crime as a fact supporting consecutive sentences.  Lee, supra, is inapposite in that it suggested that because the violence in forcible rape might be considered an element of the crime, the fact of violence may not be used as a factor in imposing the upper term as such use is expressly forbidden by rule 441(d).   Here the court used the fact of violence not to impose the upper term but to impose consecutive sentences.   There is no statute or rule prohibiting such use.   Moreover the Legislature has determined some crimes, by the very nature of their elements, warrant the imposition of full consecutive terms (Pen.Code, § 667.6, subds. (c) and (d)).   We find no error in the court's consideration of the violence of the defendant's acts in its decision to impose consecutive sentences.

 Defendant also contends that nothing in the record supports the court's finding that the objectives of the multiple crimes committed against single victims were predominantly independent objectives.   We find the record discloses substantial evidence in support of the trial court's finding and reject defendant's contention.  (People v. Kilpatrick (1980) 105 Cal.App.3d 401, 415, 164 Cal.Rptr. 349.)

Finally, defendant contends the absence of Rules of Court particularly applicable to section 667.6, subdivision (c) renders the imposition of his sentences unlawful because such rules are required by section 1170.3 and the imposition of sentence in the absence of such rules denies defendant his right to equal protection.

Defendant's assertion is premised on the theory that section 1170.3 is applicable to sentences imposed pursuant to section 667.6, subdivision (c), and therefore the Judicial Council is required to adopt rules to guide trial courts in determining whether to sentence under section 667.6, subdivision (c), or 1170.1, subdivision (a).

Penal Code section 1170.3 states “The Judicial Council shall seek to promote uniformity in sentencing under Section 1170, by:  [¶](a) The adoption of rules providing criteria for the consideration of the trial judge at the time of sentencing regarding the court's decision to:  [¶] ․ (3) Impose concurrent or consecutive sentences.”

Initially, we observe that by its express terms, section 1170.3 applies only to sentences imposed pursuant to section 1170 and the statute was not amended in 1979 when section 667.6, subdivision (c), was enacted.

Section 667.6, subdivision (c), provides a sentence may be imposed under that section “In lieu of the term provided in Section 1170.1, ․”  (Emphasis added.)   This demonstrates a legislative intent to provide for a special consecutive term independent of that established by section 1170.1 and one not subject to the technical requirements of section 1170.3.⁵

 The adoption of new and additional sentencing criteria to assist the trial court in determining whether to sentence under 667.6, subdivision (c), is not mandated by section 1170.3.

 This does not mean that trial courts are not bound to exercise sound discretion based upon relevant criteria in determining whether to employ section 667.6, subdivision (c), in sentencing.   Trial courts are bound to exercise sound discretion in all matters relating to sentencing.  (People v. Giminez (1973) 14 Cal.3d 68, 72, 120 Cal.Rptr. 577, 534 P.2d 65.)   Section 1170, subdivision (c), requires the court to state on the record its reasons for its sentence choice.   The obvious objective of this requirement is to provide a meaningful appellate review of the exercise of sentencing discretion.   While the decision to impose consecutive sentences under section 667.6 rather than section 1170.1 does not constitute a “sentence choice” within section 1170, subdivision (c), consecutive sentencing under either section 667.6, subdivision (c), or section 1170.1 is subject to the provisions of 1170, subdivision (c).   In the case at bar, the trial court was guided by the criteria set forth in rule 425, Rules of Court, in its sentencing decision.   We deem that procedure appropriate.   The five factors set forth in rule 425 for consecutive sentencing are general and comprehensive.   Any additional criteria for determining whether to impose the full consecutive terms under section 667.6 would only be repetitive refinements of these relevant and significant factors.

In relying on the existing sentencing criteria, the trial court herein based its exercise of discretion on specific stated factors contained in relevant sentencing criteria and provided a record for a meaningful appellate review.

 Defendant's contention that he was denied equal protection is based on the fallacious premise he was somehow treated differently from other convicted felons subject to consecutive terms.⁶  The same standard of judicial discretion was employed in defendant's sentencing under section 667.6, subdivision (c), as would have been applied if the sentencing had been under section 1170.1.   The trial court used existing criteria, though not required by statute to do so, exercised its discretion and stated adequate reasons for its sentencing choice in the record.

The judgment is affirmed.

FOOTNOTES

1.   All further statutory references will be to the Penal Code unless otherwise indicated.

2.   Defendant was charged with a total of twenty-five counts of burglary, false imprisonment, robbery, attempted robbery, forcible oral copulation, attempted forcible oral copulation, rape, attempted rape and forcible sodomy, involving four different victims.

3.   Welfare and Institutions Code, section 6302 provides that “[w]hen 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 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.”  (Subd. (c);  emphasis added.)

4.   Section 667.6, subdivision (c) provides:  “In lieu of the term provided in Section 1170.1, a full, separate and consecutive term may be imposed for each violation of subdivision (2) or (3) of Section 261, Section 264.1, subdivision (b) of section 288, Section 289, or of committing sodomy or oral copulation in violation of Section 286 or 288a by force, violence, duress, menace or threat of great bodily harm whether or not the crimes were committed during a single transaction․”Subdivision (d) mandates full consecutive terms for separate victims, providing “[a] full, separate, and consecutive term shall be served for each violation of subdivision (2) or (3) of Section 261, Section 264.1, subdivision (b) of section 288, section 289, or of committing sodomy or oral copulation ․ by force, violence, duress, menace or threat of great bodily harm if such crimes involve separate victims ․”

5.   See People v. Stought (1981) 115 Cal.App.3d 740, 171 Cal.Rptr. 501, wherein this court held section 667.6, subdivisions (c) and (d) were not enhancements within the meaning of section 1170.1, subdivision (e).

6.   In People v. Karsai (1982) 131 Cal.App.3d 224, 243–244, 182 Cal.Rptr. 406, this court rejected the contention that the potential sentence under Penal Code section 667.6 is violative of equal protection.

CARR, Associate Justice.

PUGLIA, P. J., and SPARKS, J., concur.