Summary
In People v. Adame (Mar. 14, 2008, B193768) [nonpub.opn.], we affirmed his convictions, but vacated his 24-year sentence and remanded to the trial court for resentencing.
Summary of this case from People v. AdameOpinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. NA065832, Tomson T. Ong, Judge.
Cannon & Harris and Donna L. Harris, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels, Lance E. Winters and Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.
KLEIN, P. J.
Defendant and appellant, Jaime Adame, appeals from the judgment entered following his conviction, by jury trial, for rape of an incompetent person (two counts) and oral copulation of an incompetent person (Pen. Code, §§ 261, subd. (a)(1); 288a, subd. (g)). Sentenced to state prison for 24 years, Adame claims there was trial and sentencing error.
All further statutory references are to the Penal Code unless otherwise specified.
The judgment is affirmed in part and reversed in part.
BACKGROUND
Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206, we find the evidence established the following.
X.V. was 21 years’ old at the time of trial. Karen Simon, a special education teacher, had been teaching X.V. a life skills course for three and a half years. Simon testified X.V. was moderately to severely retarded, could not read and could not count past 10. Her mind functioned at the level of a kindergartner. She could not easily participate in or follow conversations. X.V. liked to play with dolls and her friends were young children. She had no concept of time. She did not understand the concepts of yesterday and tomorrow, or before and after. Simon did not think X.V. understood anything about sex.
X.V. lived at home with her mother, Alicia. Alicia testified X.V. can sometimes dress herself, but she cannot do buttons or zippers. She sometimes wets her pants. X.V. generally does not leave the house by herself. Although she walks to a store a block from the house, Alicia follows to make sure she’s okay. X.V. attends school and also does a volunteer job at the Veteran’s Hospital, but she is picked up and dropped off for these activities.
Defendant Adame is Alicia’s brother-in-law. According to Alicia, Adame “was always after” X.V. Alicia testified: “I don’t know what was going to happen, something was going to happen, I thought he was going to do something.” “[M]y sister and I saw him holding [X.V.’s] hand once. Other times he was after her.”
Alejandra Munoz, a clinical psychologist, had evaluated X.V. to determine if she qualified for the services of a Regional Center. Munoz testified X.V. did not seem able to follow conversations: “She had serious problems in both English or Spanish. The questions had to be very short for her to be able to fairly grasp the question. She often responded as if she had not understood the question.” Testing showed X.V. was “in the profoundly deficient range of functioning, in the communication and daily living skills and within the moderately deficient range of socialization skills.” Munoz testified that “in terms of judgment,” a normal five-year-old functions at a higher level than X.V.
X.V. testified. While referring to diagrams depicting male and female bodies, the prosecutor asked her the following questions:
“Q . . . Have you ever seen that on [a] man before?
“A Yes.
“Q Whose penis did you see?
“A Jaime.”
“Q . . . Where were you when you saw Jaime’s penis?
“A In a hotel.
“Q Do you know how you got to the hotel?
“A He drives in the hotel and take me in there.”
“Q . . . [H]ow did you know to go to the hotel?
“A Because somebody called us on the phone and he answer it was their friend.
“Q Somebody called you on the phone?
“A Uh-huh and it was a friend.
“Q That said they were a friend?
“A Yes.
“Q A friend of who?
“A A friend of me.
“Q Do you know who this was on the phone?
“A No.”
X.V. testified the caller told her to go outside. When she did, Adame arrived in a car and took her to a hotel. There, Adame told her to sit on the bed and take her clothes off. When she said no, he took her clothes off.
“Q And after he took your clothes off, what happened?
“A He put his thing in my body.
“Q Okay. Now, did he have any clothes on?
“A No.
“Q Could you see his penis?
“A Yeah.
“Q Now, can you come down to the pictures again, please. . . . [¶] . . . [¶] On the picture can you tell us what the thing is you are talking about?
“Q (Indicating) This. He put this in here.
“A Can you point to what this is, what the thing is?
“A Penis in the lady.”
X.V. also testified, again by pointing to the diagrams and answering questions, that Adame put his tongue on her vagina.
X.V. also testified Adame tried to get her alone with him on other occasions:
“Q . . . Did [the defendant] ever try to pick you up at school?
“A Yeah.
“Q Can you tell me about that[,] what happened?
“A First, he go to my job.
“Q He went to your job?
“A Yes. Yeah because I work in the VA Hospital and he went like this, are you going with me or not and I said no, I can’t go.
“Q Okay?
“A So I told my boss that was taking me to the work and he said and I go to the store and say I don’t want to go because I can’t go. I have to go with my teacher something, somebody and said okay, so I leave or what and you can leave because I’m not going with you.
“Q You told him that you weren’t going with him?
“A No.
“Q Did he ever try to come and pick you up at school?
“A Yeah, but Karen [Simon], my teacher, she told him no.”
Detective Louis Galvan testified about interviewing Adame. When he asked if Adame had noticed anything wrong about X.V., Adame said she attended a special school and “that her head wasn’t right.” When Galvan asked if Adame knew what “retarded” meant, Adame said X.V.’s “mind works, but not too good.” Adame said he once tried to take X.V. out of school: “He went to the school. The school personnel said that he could not remove her. He then went to the hospital where she works at, and he attempted to take her from the hospital. He was also told that he could not remove her from the hospital, that she would be returned to school and then the school would take her back to her home.”
Adame told Galvan he had sex with X.V. on two occasions. The first time, he used his cell phone to call her house. He asked her to meet him and she agreed. They met at a location about 15 minutes from her house and Adame took her to a motel. They had intercourse. Adame put his mouth on her breast and on her vagina. This happened in February or March 2004. On the second occasion, Adame did not have his cell phone with him, so he called X.V.’s house from a pay phone. A female voice answered, but he wasn’t sure if it was X.V., Alicia or his wife, so he hung up. He “didn’t want his wife to find out” what he was doing. There happened to be a woman walking down the street just then, so Adame offered her a couple of bucks to call the house and ask for X.V. Once X.V. was on the line, Adame took the phone back and asked her to meet him. They went to the same motel, had intercourse and X.V. put her mouth on Adame’s penis.
Adame did not testify or present any evidence in his own behalf.
CONTENTIONS
1. One of the rape convictions must be reversed because the corpus delicti was not established.
2. The trial court improperly imposed full-term consecutive sentences.
3. The trial court imposed aggravated and consecutive sentences that violated Cunningham.
DISCUSSION
1. There was sufficient evidence to establish the corpus delicti for the second rape.
Adame contends one of the two rape convictions must be reversed because the prosecution failed to properly establish the corpus delicti for two rapes. This claim is meritless.
a. Legal principles.
“In every criminal trial, the prosecution must prove the corpus delicti, or the body of the crime itself – i.e., the fact of injury, loss, or harm, and the existence of a criminal agency as its cause. In California, it has traditionally been held, the prosecution cannot satisfy this burden by relying exclusively upon the extrajudicial statements, confessions, or admissions of the defendant. [Citations.] Though mandated by no statute, and never deemed a constitutional guaranty, the rule requiring some independent proof of the corpus delicti has roots in the common law. [Citation.] California decisions have applied it at least since the 1860’s. . . . [¶] . . . This rule is intended to ensure that one will not be falsely convicted, by his or her untested words alone, of a crime that never happened. [Citations.]” (People v. Alvarez (2002) 27 Cal.4th 1161, 1168-1169, fn. omitted.)
“The California decisions have addressed the independent-proof requirement in various contexts. It has been held that the defendant may not be held to answer if no independent evidence of the corpus delicti is produced at the preliminary examination. [Citations.] At trial, the defendant’s extrajudicial statements have been deemed inadmissible over a corpus delicti objection absent some independent evidence of the crime to which the statements relate [citations], and we have said that the corpus delicti rule is one governing the admissibility of evidence [citations]. Whenever an accused’s extrajudicial statements form part of the prosecution’s evidence, the cases have additionally required the trial court to instruct sua sponte that a finding of guilt cannot be predicated on the statements alone. [Citations.] Finally, appellate courts have entertained direct claims that a conviction cannot stand because the trial record lacks independent evidence of the corpus delicti. [Citations.]” (People v. Alvarez, supra, 27 Cal.4th at pp. 1169-1170, fns. omitted.)
“The independent proof may be circumstantial and need not be beyond a reasonable doubt, but is sufficient if it permits an inference of criminal conduct, even if a noncriminal explanation is also plausible. [Citations.] There is no requirement of independent evidence ‘of every physical act constituting an element of an offense,’ so long as there is some slight or prima facie showing of injury, loss, or harm by a criminal agency. [Citation.] In every case, once the necessary quantum of independent evidence is present, the defendant’s extrajudicial statements may then be considered for their full value to strengthen the case on all issues. [Citation.]” (People v. Alvarez, supra, 27 Cal.4th at p. 1171.)
“We reemphasize that the quantum of evidence the People must produce in order to satisfy the corpus delicti rule is quite modest; case law describes it as a ‘slight or prima facie’ showing. [Citations.] This minimal standard is better understood when we consider that the purpose of the corpus delicti rule is ‘to protect the defendant against the possibility of fabricated testimony which might wrongfully establish the crime and the perpetrator.’ [Citation.] As one court explained, ‘Today’s judicial retention of the rule reflects the continued fear that confessions may be the result of either improper police activity or the mental instability of the accused, and the recognition that juries are likely to accept confessions uncritically.’ [Citation.] [¶] Viewed with this in mind, the low threshold that must be met before a defendant’s own statements can be admitted against him makes sense; so long as there is some indication that the charged crime actually happened, we are satisfied that the accused is not admitting to a crime that never occurred.” (People v. Jennings (1991) 53 Cal.3d 334, 368.)
b. Adame did not waive his corpus delicti claim.
The Attorney General contends Adame’s claim, that the corpus delicti of a second rape had not been shown, was waived because Adame failed to raise it in the trial court. The Attorney General’s claim is meritless.
The Attorney General bases his waiver claim on case law holding a defendant cannot complain, on appeal, that his extra-judicial statement had been admitted without proof of the corpus delicti, unless he objected in the trial court. But this reasoning no longer applies after the passage of Proposition 8 and the addition of section 28(d) to article 1 of the California Constitution. “It is undisputed that the corpus delicti rule is not a requirement of federal law, and it has no basis in California statutory law. [Citations.] Thus, to the extent the corpus delicti rule limits the admissibility of relevant evidence, it was abrogated by section 28(d).” (People v. Alvarez, supra, 27 Cal.4th at pp. 1173-1174.) “If otherwise admissible, the defendant’s extrajudicial utterances may be introduced in his or her trial without regard to whether the prosecution has already provided, or promises to provide, independent prima facie proof that a criminal act was committed. [¶] However, section 28(d) did not eliminate the independent-proof rule insofar as that rule prohibits conviction where the only evidence that the crime was committed is the defendant’s own statements outside of court. Thus, section 28(d) did not affect the rule to the extent it (1) requires an instruction to the jury that no person may be convicted absent evidence of the crime independent of his or her out-of-court statements or (2) allows the defendant, on appeal, directly to attack the sufficiency of the prosecution’s independent showing.” (Id. at p. 1180, italics added.)
The Attorney General principally relies on People v. Wright (1990) 52 Cal.3d 367, which involved a claim the prosecution had failed to establish the corpus delicti of attempted robbery before defendant’s confession was admitted. Wright held the claim had been waived for failure to object at trial and, in response to the defendant’s counter-assertion of ineffective assistance of counsel, Wright said: “[I]t may well be that counsel was aware of additional evidence of attempted robbery aside from defendant’s own statements, and did not wish to invite its presentation.” (Id. at p. 405.)
“Proposition 8 was adopted by the voters at the June 8, 1982 General Election. Among other things, it added section 28(d), entitled Right to Truth-in-Evidence, to article I of the California Constitution. This provision declares that ‘[e]xcept as provided by statute hereafter enacted by a two-thirds vote of the membership in each house of the Legislature, relevant evidence shall not be excluded in any criminal proceeding.’ [Citation.]” (People v. Alvarez, supra, 27 Cal.4th at pp. 1172-1173.)
The corpus delicti rule is, at its core, a sufficiency of the evidence requirement. As noted by Alvarez, this has been recognized by California courts going back to the 19th century. (See People v. Jones (1867) 31 Cal. 565, 570 [defendant entitled to directed verdict because corpus delicti had not been shown: “[T]here was no evidence of the corpus delicti of a character absolutely required by the law, and the Court should have so instructed the jury. It is not a question of weight of evidence, but of an entire want of evidence, as to one point, of a character essential to a conviction.”]; People v. Ward (1905) 145 Cal. 736, 740 [accord].)
What this means is that Adame did not waive his corpus delicti claim by failing to object below because, in general, “sufficiency of the evidence issues are never waived.” (People v. Parra (1999) 70 Cal.App.4th 222, 224, fn. 2; see People v. Rodriguez (1998) 17 Cal.4th 253, 262 [“defendant could not waive his right to challenge the sufficiency of the evidence on which the [Three Strikes] allegation was found true until it was found true and, then, only by failing to file a timely notice of appeal”]; People v. Cuccia (2002) 97 Cal.App.4th 785, 795 [“Attorney General incorrectly contends defendant waived any issue as to the sufficiency of the evidence by failing to move for acquittal after the prosecutor rested”].)
c. Corpus delicti of two rapes was established at trial.
However, although we conclude Adame has not waived his corpus delicti claim, we also conclude it is meritless.
Adame argues one of the two rape convictions “must be reversed because the prosecutor failed to present competent evidence of two separate incidents independent of appellant’s extra-judicial statements. The only evidence that appellant had sex with [X.V.] on more than one occasion came from appellant’s statements to Detective Galvan.”
We disagree. There is a “low threshold” (People v. Jennings, supra, 53 Cal.3d at p. 368) for establishing the corpus delicti requirement, evidence for which “is sufficient if it permits an inference of criminal conduct, even if a noncriminal explanation is also plausible.” (People v. Alvarez, supra, 27 Cal.4th at p. 1171.) For example, People v. Lara (1994) 30 Cal.App.4th 658, held the corpus delicti for driving without a license (Veh. Code, § 12500, subd. (a)) had been established even though the record indicated only that an officer “stopped a car that defendant was driving and asked if he had a driver’s license. Defendant gave a response but did not produce one. Although the evidence is slight, one reasonable inference” was that the defendant had been driving without a license. (People v. Lara, supra, at p. 676.)
This same “one reasonable inference” rule has been applied in sexual assault cases. In People v. Culton (1992) 11 Cal.App.4th 363, the defendant had been charged with 10 counts of sexually abusing a four-year-old girl. A pediatrician testified he found labial adhesions “of average density or thickness but [he] knew of no way to determine whether they occurred as a result of a single instance of traumatic inflammation or because of multiple trauma. The adhesions, however, were not inconsistent with multiple occasions of very vigorous or severe irritation of the vaginal area by very rough or prolonged hard rubbing.” (Id. at p. 369.) On appeal, the defendant claimed this testimony did not raise a reasonable inference the victim had been abused on more than one occasion. Culton rejected the claim, holding that, so long as the physical evidence was not inconsistent with the child having been sexually assaulted on multiple occasions, then the corpus delicti requirement had been satisfied.
Culton explained: “[A]lthough one may infer a plausible explanation that the multiple occasions of touching of the minor’s vaginal area was not pursuant to a criminal agency, we conclude that the trial court on the other hand could reasonably infer from Dr. Trenkle’s expert testimony that another plausible explanation was that a third party on different occasions lewdly and lasciviously touched the minor in the vaginal area by rubbing and manipulating it to such a degree that adhesions developed. [¶] Based on the foregoing discussion, we conclude that the People made a sufficient prima facie showing through Dr. Trenkle’s testimony from which the court reasonably inferred that as to each of the 10 charged offenses, the minor was harmed or injured by a lewd and lascivious touching by a third person.” (People v. Culton, supra, 11 Cal.App.4th at pp. 372-373, italics added.)
In People v. Robbins (1988) 45 Cal.3d 867, the six-year-old victim disappeared while walking home. His skeletal remains were found three months later and the most a medical examiner could determine was that death had been caused by a broken neck. On appeal, Robbins claimed the corpus delicti, for the special circumstance of murder during commission of a lewd act on a minor, had not been proved because there was no evidence of a sexual assault. Robbins rejected this claim: “[T]here was adequate evidence, apart from defendant’s admissions, that the alleged sexual offense occurred. Defendant was seen by one witness riding a motorcycle in the area of (and on the date of) the victim’s disappearance, and the victim was last seen by another witness riding a motorcycle with a man matching defendant’s description; no clothes were found at the scene of the crime; defendant’s own experts described his ‘primary diagnosis’ as pedophilia; his admission of similar sexual conduct as to the very similar Texas crimes was confirmed by scientific evidence; and finally, the physical evidence of the homicide lends reliability to other aspects of defendant’s confession, namely, his description of the lewd and lascivious conduct. In view of the nature of the offense and the circumstances of this case (i.e., the body was not discovered for some time, hence it was impossible to verify the sexual conduct by scientific evidence, and there were apparently no eyewitnesses to the crime) we do not believe the corpus delicti rule can be interpreted to call for more; the law does not require impossible showings.” (Id. at p. 886, italics added.)
After Robbins was decided, “the Penal Code was . . . amended to provide that the corpus delicti rule does not apply to felony-based special circumstances . . . .” (People v. Jennings, supra, 53 Cal.3d at p. 387, fn. 13.)
The case at bar is similar to Robbins in that the evidence showed X.V. did not have the cognitive ability to provide an accurate account of everything Adame had done to her, particularly with regard to chronology. X.V.’s testimony about a single sexual assault, which appears to have been the time Adame asked a passing stranger to call X.V.’s house, corroborated Adame’s police statement about the same event. This corroboration, in turn, lent reliability to Adame’s confession that there had been a second sexual encounter. Additional reliability was furnished by the testimony of X.V. and her mother, indicating that Adame had tried to gain access to X.V. on more than one occasion. As a result, we can be confident Adame described the second sexual encounter, not because of “improper police activity or [his] mental instability” (People v. Jennings, supra, 53 Cal.3d at p. 368), but because the second encounter actually took place. That is all the assurance the corpus delicti rule requires.
Hence, there was sufficient evidence, independent of Adame’s extra-judicial admissions, to establish the corpus delicti of two rapes.
2. Trial court improperly imposed full-term consecutive sentences.
Adame contends the trial court erred by imposing full-term consecutive sentences on counts 2 and 3. The Attorney General acknowledges this claim is meritorious.
After selecting count 1 as the base term, the trial court imposed full-term consecutive sentences on counts 2 (rape of incompetent person) and 3 (oral copulation of incompetent person), resulting in a total prison term of 24 years, consisting of 8 years for each of Adame’s three convictions. The parties assert the trial court was presumably acting under section 667.6, subdivision (d), which provides, in pertinent part: “A full, separate, and consecutive term shall be imposed for each violation of an offense specified in subdivision (e) if the crimes involve separate victims or involve the same victim on separate occasions.” However, although section 667.6, subdivision (e), lists both rape and oral copulation, it does not list either of the crimes committed by Adame: sexual intercourse and oral copulation with a person incapable of giving consent. (§§ 261, subd. (a)(1); 288a, subd. (g).)
Both section 261, subd. (a)(1) [rape], and section 288a, subd. (g) [illegal oral copulation], are only committed if the victim was “incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, and this is known or reasonably should be known to the person committing the act.”
The Determinate Sentencing Act (DSA), section 1170.1, subdivision (a), provides, in pertinent part, that the “subordinate term for each consecutive offense shall consist of one-third of the middle term of imprisonment prescribed for each other felony conviction for which a consecutive term of imprisonment is imposed . . . .” The middle term for each of Adame’s subordinate terms is six years (§§ 264, 288a, subd. (g)), one-third of which is two years. Hence, if the trial court did impose full-term consecutive sentences on counts 2 and 3 under the authority of section 667.6, those sentences were improper and must be vacated.
Subdivision (a) of section 1170.1 provides, in full: “Except as otherwise provided by law, and subject to Section 654, when any person is convicted of two or more felonies, whether in the same proceeding or court or in different proceedings or courts, and whether by judgment rendered by the same or by a different court, and a consecutive term of imprisonment is imposed under Sections 669 and 1170, the aggregate term of imprisonment for all these convictions shall be the sum of the principal term, the subordinate term, and any additional term imposed for applicable enhancements for prior convictions, prior prison terms, and Section 12022.1. The principal term shall consist of the greatest term of imprisonment imposed by the court for any of the crimes, including any term imposed for applicable specific enhancements. The subordinate term for each consecutive offense shall consist of one-third of the middle term of imprisonment prescribed for each other felony conviction for which a consecutive term of imprisonment is imposed, and shall include one-third of the term imposed for any specific enhancements applicable to those subordinate offenses.”
However, because we cannot be sure from the record why the trial court believed it had the power to impose these consecutive full-term sentences, and because there was another sentencing error as well (see discussion, infra), we will remand this case for resentencing. (See People v. Castaneda (1999) 75 Cal.App.4th 611, 614 [remand for resentencing proper where original sentence contained unauthorized enhancement]; People v. Stevens (1988) 205 Cal.App.3d 1452, 1455-1458 [remand for resentencing proper where original sentence violated “double-the-base-term” rule].)
4. Cunningham error.
Adame contends the trial court violated Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856, 166 L.Ed.2d 856], by imposing an upper term on count 1, and consecutive terms on counts 2 and 3, because the jury should have made the predicate factual determinations warranting these terms, not the trial court. This claim has merit as to the upper term, but not as to the consecutive terms.
a. Legal principles.
In Apprendi v. New Jersey (2000) 530 U.S. 466, 490 147 L.Ed.2d 435, the Supreme Court held: “Other 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.” In Blakely v. Washington (2004) 542 U.S. 296, 301159 L.Ed.2d 403, the court reiterated this rule and applied it to invalidate an enhanced sentence imposed under Washington’s determinate sentencing law, whose structure was somewhat akin to the triad structure of California’s Determinate Sentencing Law (DSL).
In People v. Black (2005) 35 Cal.4th 1238 (Black I), our Supreme Court held: “[T]he provisions of the California determinate sentence law simply authorize a sentencing court to engage in the type of factfinding that traditionally has been incident to the judge’s selection of an appropriate sentence within a statutorily prescribed sentencing range. Therefore, the upper term is the ‘statutory maximum’ and a trial court’s imposition of an upper term sentence does not violate a defendant’s right to a jury trial under the principles set forth in Apprendi [and] Blakely . . . .” (Id. at p. 1254.) However, Cunningham v. California, supra, 549 U.S. ___ [127 S.Ct. 856, 166 L.Ed.2d 856], overruled Black I, holding that the middle term under the DSL is “the relevant statutory maximum” (id. at p. 871) for Sixth Amendment purposes, and therefore, other than the fact of a prior conviction [or a fact admitted by the defendant], “any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence.” (Id. at pp. 863-864.)
b. Discussion.
Contrary to Adame’s argument, the trial court’s imposition of consecutive terms did not implicate the Sixth Amendment. “Cunningham . . . does not undermine our previous conclusion that imposition of consecutive terms under section 669 does not implicate a defendant’s Sixth Amendment rights.” (People v. Black (2007)41 Cal.4th 799, 821 (Black II.)
However, we do agree with Adame that the trial court violated Cunningham when it imposed the upper term on count 1. The trial court relied on two aggravating factors: that “[t]he manner in which the crime was carried out indicates planning, sophistication, or professionalism” (Cal. Rules of Court, rule 4.421(a)(8), and that “[t]he defendant took advantage of a position of trust or confidence to commit the offense” (Cal. Rules of Court, rule 4.421(a)(11)). The trial court justified those factors as follows: “There was at least some planning; having another woman call in order to be able to avoid detection; calling and then hanging up when somebody other than the victim answers the phone. [¶] There was – as the mother has described, there was even a measure of . . . following and stalking her, trying to create the right opportunity to be able to get her into a situation where he could carry out the incident or incidents at hand. [¶] I don’t think it’s professionalism, but I think there’s some planning and a certain level of sophistication.” “[D]efendant is the victim’s uncle by marriage. . . . And he took advantage of a position of trust, confidence to commit the offense.” The trial court concluded these two factors outweighed the single mitigating factor, that Adame had a relatively insignificant prior record.
According to the probation report, Adame had been convicted in 1983 for brandishing a firearm, and in 1992 for aiding and abetting an illegal entry into the United States. The trial court said this “insignificant criminal record . . . carries some weight, but not a significant weight.”
Imposition of the upper term on count 1 violated the Apprendi/Blakely rule because, as explained by People v. Sandoval (2007) 41 Cal.4th 825, 837-838: “None of the aggravating circumstances cited by the trial court come within the exceptions set forth in Blakely. . . . All of the aggravating circumstances cited by the trial court were based upon the facts underlying the crime; none were admitted by defendant or established by the jury’s verdict. We conclude, accordingly, that defendant’s Sixth Amendment rights were violated by the imposition of an upper term sentence.”
Apprendi/Blakely error is not reversible per se. (Washington v. Recuenco (2006) 548 U.S. 212 [165 L.Ed.2d 466].) “[W]e must determine whether, if the question of the existence of an aggravating circumstance or circumstances had been submitted to the jury, the jury’s verdict would have authorized the upper term sentence. . . . [I]f a reviewing court concludes, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury, the Sixth Amendment error properly may be found harmless.” (People v. Sandoval, supra, 41 Cal.4th at pp. 838-839.)
As our Supreme Court noted in Sandoval: “[T]o the extent a potential aggravating circumstance at issue in a particular case rests on a somewhat vague or subjective standard, it may be difficult for a reviewing court to conclude with confidence that, had the issue been submitted to the jury, the jury would have assessed the facts in the same manner as did the trial court. . . . Many of the aggravating circumstances described in the rules require an imprecise quantitative or comparative evaluation of the facts. For example, aggravating circumstances set forth in the sentencing rules call for a determination as to whether ‘[t]he victim was particularly vulnerable,’ whether the crime ‘involved a[] . . . taking or damage of great monetary value,’ or whether the ‘quantity of contraband’ involved was ‘large’ [citation].” (People v. Sandoval, supra, 41 Cal.4th at p. 840.)
We cannot conclude a jury would undoubtedly have found either of the two non-recidivism factors cited by the trial court. For instance, the Attorney General argues the jury “unquestionably would have found that that the crimes were carried out in a manner that indicates sophistication and planning” because “appellant admitted to police that he hung up the phone when someone besides [X.V.] answered, and he had someone else make one call to [her], in an attempt to lure [her] out of her home without [his] wife discovering what he was doing.” But one could just as well argue this episode showed how unsophisticated Adame had been: that a female pedestrian happened to walk by just then showed Adame had been lucky, not that he had planned well. As for Adame’s position of trust, the Attorney General argues, “Based on [X.V.’s] incompetence and appellant’s position as her uncle, the jury would have necessarily found that appellant took advantage of a position of trust in committing the crimes.” But, as the trial court properly acknowledged below, the incompetence factor was an element of the substantive crimes Adame committed, i.e., having sex with a person who was incapable of giving consent. The fact Adame was X.V.’s uncle counts for something, but there was no evidence showing he had any special access to her or particular emotional sway over her by virtue of their kinship relation.
Given the subjective nature of the aggravating factors relied on by the trial court in connection with count 1, and that the trial court appears to have improperly imposed full-term consecutive sentences on counts 2 and 3, we will vacate Adame’s sentence on all counts.
DISPOSITION
The judgment is affirmed in part and reversed in part. The convictions are affirmed. The sentence is vacated and the matter is remanded to the trial court for resentencing in conformity with this opinion.
We concur: CROSKEY, J. ALDRICH, J.