Opinion
E063892
06-27-2017
THE PEOPLE, Plaintiff and Respondent, v. QUENTIN BERNARDE FRAZIER, Defendant and Appellant.
Kyle D. Smith, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra and Kamala D. Harris, Attorneys General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Kathryn A. Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FVI1402426) OPINION APPEAL from the Superior Court of San Bernardino County. John M. Tomberlin, Judge. Affirmed. Kyle D. Smith, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra and Kamala D. Harris, Attorneys General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Kathryn A. Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
Defendant and appellant Quentin Bernarde Frazier, a longtime drug dealer, threatened, assaulted, and robbed one of his clients because he believed he was owed money for drugs. As the victim lay injured on the ground, defendant fired multiple gunshots from his car.
Following a jury trial, defendant was convicted of second degree robbery (Pen. Code, § 211; count 1); assault with a firearm (§ 245, subd. (a)(2); count 2); criminal threats (§ 422, subd. (a); count 3); possession of a firearm by a felon (§ 29800, subd. (a)(1); count 4); assault by means likely to produce great bodily injury (§ 245, subd. (a)(4); count 5); discharge of a firearm with gross negligence (§ 246.3, subd. (a); count 6); and possession of a controlled substance (Health & Saf. Code, § 11350; count 7). In the commission of counts 1 and 2, the jury also found true that defendant personally used a firearm (Pen. Code, § 12022.53, subd. (b) (count 1); § 12022.5, subds. (a) & (d) (count 2)). The jury further found true that defendant personally inflicted great bodily injury (§12022.7, subd. (a)) in the commission of counts 1, 2, and 5.
All future statutory references are to the Penal Code unless otherwise stated.
Defendant was sentenced to a total term of 18 years in state prison with credit for time served as follows: the upper term of five years on count 1, plus an additional 10 years for the firearm use enhancement, plus an additional three years for the great bodily injury enhancement; concurrent two-year terms on counts 3, 4, and 6; and a concurrent one-year term on count 7. Sentences on counts 2 and 5 along with the additional terms for the attendant enhancement allegations on those counts were imposed but stayed pursuant to section 654.
Defendant challenges only his sentence in this appeal. He claims the trial court erred in imposing concurrent multiple punishments under section 654 on counts 3, 4, and 6, as he was entitled to a jury determination on that issue under Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi). We reject defendant's contention and affirm the judgment.
II
FACTUAL BACKGROUND
The victim was a frequent drug user and defendant was his drug dealer. Prior to the incident, the victim received drugs from defendant but did not pay for them, as he believed defendant was giving him the drugs as payment for a debt.
On June 21, 2014, defendant called the victim multiple times and left him threatening voicemails. Later that night, defendant and his girlfriend drove to the victim's home and waited for the victim. When the victim returned and parked his car in the driveway, defendant exited his car, ran up to the victim, and hit him on the side of his head with a gun, causing his head to bleed. After the victim fell to the ground, defendant stomped on the victim's wrist. Defendant then reached into the victim's pockets and took his wallet and cell phone. Defendant ran back to his car after his girlfriend called out, "that's enough." As defendant drove away, he fired three shots in the victim's direction.
About four or five hours after the incident, the victim called 911 and reported it. When officers arrived, they observed injuries to the victim's face and arm, and called an ambulance for the victim. The victim's arm was placed in an orthopedic cast at the hospital.
A week later, on June 28, 2014, officers arrested defendant. During the arrest, officers searched defendant's home and found suspected cocaine and a scale in his bedroom.
III
DISCUSSION
Defendant believes the Sixth Amendment right to a jury trial attaches to a decision whether to stay a sentence under section 654, because it involves a factual determination as to whether the defendant harbored more than one objective or intent for each convicted offense. He cites Apprendi, supra, 530 U.S. 466, 490, in which the high 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."
Section 654, subdivision (a), provides that "[a]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." The statute " 'prohibits multiple punishment for the same "act or omission," ' " and requires the trial court to " 'stay execution of sentence on the convictions for which multiple punishment is prohibited.' " (People v. Correa (2012) 54 Cal.4th 331, 337 (Correa); accord, People v. Kelly (2016) 245 Cal.App.4th 1119, 1130 (Kelly).) Its purpose "is to ensure that a defendant's punishment will be commensurate with his culpability." (Correa, supra, at p. 341; accord, Kelly, supra, at pp. 1130-1131.)
" 'It is [the] defendant's intent and objective, not temporal proximity of his offenses, which determine whether the transaction is indivisible.' [Citation.] ' "The defendant's intent and objectives are factual questions for the trial court; [to permit multiple punishments,] there must be evidence to support [the] finding the defendant formed a separate intent and objective for each offense for which he was sentenced." ' " (People v. Capistrano (2014) 59 Cal.4th 830, 886; accord, People v. Deegan (2016) 247 Cal.App.4th 532, 541-542, 545 (Deegan).)
"We review under the substantial-evidence standard the court's factual finding, implicit or explicit, of whether there was a single criminal act or a course of conduct with a single criminal objective." (People v. Moseley (2008) 164 Cal.App.4th 1598, 1603 (Moseley); accord, Deegan, supra, 247 Cal.App.4th at p. 545 & fn. 4.) "[W]e review the trial court's conclusions of law de novo." (Moseley, supra, at p. 1603.)
Defendant argues that under Apprendi, supra, 530 U.S. 466, he had a federal constitutional right to a jury determination of his intent and objectives and the trial court exceeded its authority when it made those factual determinations pursuant to section 654. (Deegan, supra, 247 Cal.App.4th at pp. 547-548.) Defendant's contentions have been repeatedly rejected.
In People v. Black (2005) 35 Cal.4th 1238 (Black I), the California Supreme Court held that Apprendi and its progeny do not apply to the decision whether to impose concurrent or consecutive sentences, under either section 654 or section 669. (Black I, supra, at pp. 1261-1264.) Cunningham v. California (2007) 549 U.S. 270 (Cunningham), which abrogated Black I with respect to imposition of upper term sentences, says nothing about consecutive terms. In People v. Black (2007) 41 Cal.4th 799 (Black II), the California Supreme Court reaffirmed its conclusion in Black I, that imposition of consecutive terms under section 669 does not implicate a defendant's Sixth Amendment rights. (Black II, supra, at pp. 820-823.)
Section 669 provides, in pertinent part: "When a person is convicted of two or more crimes, . . . the second or other subsequent judgment upon which sentence is ordered to be executed shall direct whether the terms of imprisonment . . . shall run concurrently or consecutively. . . . [¶] . . . 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." (§ 669.) By contrast, a court acts in excess of its jurisdiction and imposes an unauthorized sentence when it fails to stay execution of a sentence if required to do so by section 654. (People v. Hester (2000) 22 Cal.4th 290, 295.) --------
Although the court did not explicitly discuss section 654, in deciding that Cunningham did not call into question Black I's conclusion regarding consecutive sentences, it stated: "The determination whether two or more sentences should be served in this manner is a 'sentencing decision[] made by the judge after the jury has made the factual findings necessary to subject the defendant to the statutory maximum sentence on each offense' and does not 'implicate[] the defendant's right to a jury trial on facts that are the functional equivalent of elements of an offense.' (Black I, supra, 35 Cal.4th at p. 1264.)" (Black II, supra, 41 Cal.4th at p. 823.) The quoted portion of Black I specifically addressed section 654, and the weight of California authority holds that the Apprendi rule is not applicable to decisions made under that statute. (See, e.g., Deegan, supra, 247 Cal.App.4th at pp. 546-550; People v. McCoy (2012) 208 Cal.App.4th 1333, 1340 (McCoy); People v. Morelos (2008) 168 Cal.App.4th 758, 770 (Morelos); People v. Retanan (2007) 154 Cal.App.4th 1219, 1229; People v. Solis (2001) 90 Cal.App.4th 1002, 1021-1022; People v. Cleveland (2001) 87 Cal.App.4th 263, 269-271 (Cleveland).)
In Oregon v. Ice (2009) 555 U.S. 160 (Ice), the United States Supreme Court addressed the application of Apprendi and its progeny—decisions "rooted in the historic jury function [of] determining whether the prosecution has proved each element of an offense beyond a reasonable doubt"—to "a sentencing function in which the jury traditionally played no part: When a defendant has been tried and convicted of multiple offenses, each involving discrete sentencing prescriptions, does the Sixth Amendment mandate jury determination of any fact declared necessary to the imposition of consecutive, in lieu of concurrent, sentences?" (Ice, supra, 555 U.S. at p. 163.) The court observed that most states follow the common-law tradition of entrusting the question of concurrent versus consecutive sentences to trial courts' unfettered discretion, while in others, sentences for multiple offenses are presumed to run consecutively, although sentencing courts may order concurrent terms upon finding cause therefor. The Supreme Court concluded that neither scheme runs afoul of the Sixth Amendment. (Id. at pp. 163-164.) In Oregon and still other states, however, trial courts' discretion is constrained in that they are required to find certain facts before imposing consecutive, rather than concurrent, sentences. The Supreme Court held, "in light of historical practice and the authority of States over administration of their criminal justice systems, that the Sixth Amendment does not exclude Oregon's choice." (Id. at p. 164.)
In reaching this conclusion, the high court rejected the defendant's argument that he was entitled to concurrent sentences absent the factual findings required by Oregon law: "[T]he scope of the constitutional jury right must be informed by the historical role of the jury at common law. [Citation.] It is therefore not the case that . . . the federal constitutional right attaches to every contemporary state-law 'entitlement' to predicate findings." (Ice, supra, 555 U.S. at p. 170.) The court went on to state: "It bears emphasis that state legislative innovations like Oregon's seek to rein in the discretion judges possessed at common law to impose consecutive sentences at will. Limiting judicial discretion to impose consecutive sentences serves the 'salutary objectives' of promoting sentences proportionate to 'the gravity of the offense,' [citation], and of reducing disparities in sentence length, [citation]. All agree that a scheme making consecutive sentences the rule, and concurrent sentences the exception, encounters no Sixth Amendment shoal. To hem in States by holding that they may not equally choose to make concurrent sentences the rule, and consecutive sentences the exception, would make scant sense. Neither Apprendi nor our Sixth Amendment traditions compel straitjacketing the States in that manner." (Ice, supra, at p. 171.)
In Cleveland, supra, 87 Cal.App.4th 263, the court explained that "section 654 is not a sentencing 'enhancement.' On the contrary, it is a sentencing 'reduction' statute. Section 654 is not a mandate of constitutional law. Instead, it is a discretionary benefit provided by the Legislature to apply in those limited situations where one's culpability is less than the statutory penalty for one's crimes. Thus, when section 654 is found to apply, it effectively 'reduces' the total sentence otherwise authorized by the jury's verdict. The rule of Apprendi, however, only applies where the nonjury factual determination increases the maximum penalty beyond the statutory range authorized by the jury's verdict." (Cleveland, supra, at p. 270, italics omitted.)
Similarly, in Deegan, supra, 247 Cal.App.4th 532, the court concluded "Apprendi does not apply to determinations made by a trial court under section 654 because that statute entails sentencing reduction rather than a sentencing enhancement." (Id. at p. 547.) In support of its conclusion, the Deegan court analyzed prior state and federal case law, including Ice. (Id. at pp. 547-550.) The court explained: "First, we agree with our Fifth District colleagues that Black I states the law of California with respect to the Sixth Amendment and findings of fact for purposes of applying section 654. (See People v. Morelos[, supra,] 168 Cal.App.4th [at p.] 770 . . . [holding Black I obliged it to reject 6th Amend. challenge to trial court finding under § 654 that multiple crimes did not arise from indivisible transaction].)" (Deegan, supra, at p. 549.)
"Second, while Oregon v. Ice involved a consecutive/concurrent sentencing scheme, its analysis supports the holdings in Cleveland and Solis and the dictum in Black I. We so conclude because both section 654 and the statute the court upheld in Oregon v. Ice deal with sentencing for multiple offenses rather than sentencing for a single discrete crime—a factor that was key to the Supreme Court's decision. (See Oregon v. Ice, supra, 555 U.S. at pp. 167, 168 [distinguishing Apprendi and its progeny 'involv[ing] sentencing for a discrete crime, not—as here—for multiple offenses different in character or committed at different times'].) Both address sentencing functions in which the jury traditionally has played no part. (Oregon v. Ice, at pp. 163, 168 [specification of regime for administering multiple sentences has long been considered prerogative of state legislatures]; see also People v. Benson (1998) 18 Cal.4th 24, 38 . . . [discussing history of § 654].) Both limit a trial court's discretion by requiring judicial factfinding, and the facts the court is required to find are similar. And finally, while the Oregon statute involved a decision whether to sentence consecutively or concurrently, and section 654 involves imposing a stay of execution of a sentence, the latter is a judicially devised remedy that is similar in practical effect to concurrent sentencing. (See People v. Jones (2012) 54 Cal.4th 350, 353 . . . [noting 'little practical difference between imposing concurrent sentences . . . and staying sentence'])." (Deegan, supra, 247 Cal.App.4th at pp. 549-550.)
"These authorities lead us to conclude neither the California Supreme Court nor the United States Supreme Court would hold Apprendi applies to trial courts' findings of facts under section 654." (Deegan, supra, 247 Cal.App.4th at p. 549.) Nonetheless, defendant, at great lengths, argues that all of the cases rejecting this exact issue have been wrongly decided and should not be followed. Defendant has offered no convincing rationale persuading us to depart from these authorities finding Apprendi does not apply to a trial court's determination of the defendant's intent and objective under section 654. (Accord, Deegan, supra, at pp. 549-550; McCoy, supra, 208 Cal.App.4th at p. 1340; Morelos, supra, 168 Cal.App.4th at p. 770.) We therefore conclude the trial court's imposition of concurrent sentences on counts 3, 4, and 6 did not infringe defendant's jury trial right.
IV
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: McKINSTER
Acting P. J. SLOUGH
J.