Opinion
NOT TO BE PUBLISHED
Mendocino County Super. Ct. No. SCTM-CRCR-05-67785-002
Lambden, J.
A jury found James Bruce Reiff guilty, as charged, of five sexual offenses against his 15-year-old niece, S., and the court sentenced him to a 10-year prison term consisting of an eight-year upper term for rape of an intoxicated person (count one, Pen. Code, §§ 261, subd. (a)(3), 264), a consecutive two years as one-third the middle term (§ 1170.7, subd. (a)) for penetration of an intoxicated person with a foreign object (count four; § 289, subd. (e)), and stayed terms for counts of lewd or lascivious acts with a child age 14 or 15, statutory rape, and penetration of one under age 16 with a foreign object (counts two, three & five; §§ 288, subd. (c)(1), 261.5, subd. (d), & 289, subd. (i)).
All statutory references are to the Penal Code unless otherwise indicated.
Reiff appeals claiming a need for sentence reduction or resentencing due to a violation of his federal jury trial rights under Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham), in that the court, in choosing the upper term for count one, utilized aggravating factors not admitted or found true by a jury. We reject his arguments and affirm.
BACKGROUND
All counts involve the night of January 23, 2005, which S. spent at Reiff’s home, also the home of Reiff’s wife Nancy (S.’s maternal aunt) and his 17-year-old daughter Emily. Nancy retired to her room for the night, after an argument with Reiff about letting Emily drink. This left the other three together.
The girls watched a video in a guest bedroom where S. would stay the night, and Reiff was in and out of the room. He supplied them with marijuana, gave S. two shots of what looked to her like tequila, cautioning her not to let Emily see, and drank liquor himself. It was a school night, and when the video was over, Emily went to her own bedroom for the night, leaving S. and Reiff in the guest bedroom. Emily was having sinus congestion and, after Emily left, Reiff told her he had something to give her for it. He left the room and returned with some white powder on a small plate. It looked like crushed pills. At Reiff’s direction, S. ingested it by putting two or three dabs of it onto her tongue with a wet finger. She did not suspect that it was anything dangerous or unusual, and it did not look like crystal methamphetamine, a drug she had used before. This was before but near 11:00 p.m.
Feeling at first just awkward, S. got into the bed in the room and soon felt calm, dizzy, “out of body, mind,” and really tired. She fell asleep without seeing Reiff leave the room. The next thing she knew, she found herself naked on the bed, on her back, feeling “cloudy” and with no recollection of undressing. Reiff was naked and on top of her, rubbing his penis and pelvic region over her lower body, vagina and buttocks. She tried to push him away but was too weak to move. He said things like: “Does it feel good?”; “Isn’t it big?” and “Isn’t it nice?” She lacked a clear recollection afterward, but thought he put his penis into her vagina and pressed his fingers on or into her vagina. She recalled at one point being on her stomach and Reiff wiping something off her back and then bending over to wipe or rub the floor. She had no idea what time this was. She awoke the next morning, late for school, still naked, her clothes on the floor next to the bed, and sore around her vagina. The door was closed, and Reiff was no longer in the room.
S. dressed briefly before undressing again to shower. After her shower, as she began to remember what had happened, Reiff entered the bathroom with coffee for her and kissed her near the mouth. No one else seemed to be in the house, and Reiff acted as if nothing had happened. He drove her to school, where, traumatized and upset, S. disclosed the incident to a school counselor that morning. She was given a sexual assault examination at a hospital that afternoon.
A police detective then interviewed S. early that evening and, near midnight, conducted a warrant search of Reiff’s home, seizing liquor and marijuana, a marijuana bong, a tube of sexual lubricant, prescription medication not in Reiff’s name, and the bedsheets from the guestroom. Reiff’s blood alcohol level near 2:40 a.m. was 0.15 percent. Stains on the bottom bedsheet and each of two pair of panties S. wore right after the assault were analyzed and found to contain seminal fluid and DNA profiles matching Reiff and S. The panties also tested positive for blood. Absence of sperm in a vaginal swab from S. was consistent with the stipulated fact that Reiff had had a vasectomy. Blood drawn from her showed the presence of lidocaine, a local anesthetic that, if ingested as S. described, can produce drowsiness, dizziness, and then central nervous system effects such as unconsciousness. “Date rape” drugs such as Flunitrazepam and gamma hydroxybutyrate (GHB) can also cause such dizziness and drowsiness. The latter drugs were not detected, but GHB would not have been detected in a blood sample drawn, as was S.’s, beyond 12 hours from ingestion.
Implicitly disbelieved by the jury was testimony suggesting that S. made up the assault to get rid of Reiff, and that the DNA found on the bedsheet was due to Reiff and Nancy having sex there a few days before S. slept over. Also disbelieved was Reiff’s account, from a taped police interview, of S. coming on to him wearing only panties, undressing and French kissing him and touching his penis, but without him ever touching or penetrating her vagina.
At sentencing the court made these comments pertinent to its selection of an upper term on count one, citing provisions of the California Rules of Court: “In aggravation, the court is considering the following factors: Rules 4.421[(a)(3) and (a)(11)], the defendant and victim—he did place the victim in a vulnerable situation because of her age and relationship, as well as the special knowledge that he did have of her, and did take advantage of a position of trust based on those same factors. I am considering those factors jointly. I’m weighing them jointly. [¶] I do find and do give some weight to 4.421[(a)(8)], the manner in [which] the crime was committed does appear to the court that some sophistication was involved. [¶] I’m also giving some weight to 4.421[(b)(4) and (5)] in that he was on summary probation at the time this offense occurred and the probation was unsuccessful. [¶] . . . [¶] The probation report does not find any mitigating factors. The defense argues that there is a mitigating factor under rule 4.423[(b)(1)] in that the defendant does have an insignificant record of criminal conduct. I agree . . . . The only conviction [Veh. Code, § 23152, subd. (a)], driving under the influence, a misdemeanor, occurred on February 22nd of ’03. I do find that is a mitigating circumstance and entitled to some weight. [¶] . . . [¶] Weighing the circumstances in aggravation against the circumstances in mitigation, I find the circumstances in aggravation outweigh the circumstances in mitigation and impose the aggravated term of eight years.”
DISCUSSION
Reiff’s claim of federal jury trial right deprivation was initially raised in a brief filed after the federal high court in Cunningham had held our determinate sentence law (DSL) unconstitutional, thus overruling a contrary state high court decision in People v. Black (2005) 35 Cal.4th 1238 (Black I). Since then, however, our state high court has further explored Cunningham error in People v. Black (2007) 41 Cal.4th 799 (Black II) and the question of prejudice for such error in the companion case of People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval). These developments allow us to resolve most of Reiff’s arguments by resort to the ultimate pronouncements in Black II and Sandoval.
Black II establishes that we need find only one aggravating factor that satisfies the federal jury trial right: “[U]nder the DSL, the presence of one aggravating circumstance renders it lawful for the trial court to impose an upper term sentence. [Citations.] The court’s factual findings regarding the existence of additional aggravating circumstances may increase the likelihood that it actually will impose the upper term sentence, but these findings do not themselves further raise the authorized sentence beyond the upper term. . . . Accordingly, judicial factfinding on those additional aggravating circumstances is not unconstitutional.” (Black II, supra, 41 Cal.4th at p. 815.) “[I]mposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (Id. at p. 816.) This is dispositive of Reiff’s claim in this case, for he does not dispute the evidentiary support for any of the factors cited by the court at sentencing. He only claims that his federal jury trial right was violated.
Key here are the court’s findings that Reiff was on probation at the time of these offenses and had performed poorly on probation. These were not facts found true by the jury or admitted by Reiff, but we hold that they fell within the exception for factfinding “based upon the defendant’s record of prior convictions.” (Black II, supra, at p. 816.) Under that exception, often called the Almendarez-Torres exception after the lead case establishing it (Almendarez-Torres v. United States (1998) 523 U.S. 224), “the right to a jury trial does not apply to the fact of a prior conviction. [Citations.] ‘[R]ecidivism . . . is a traditional, if not the most traditional, basis for a sentencing court’s increasing an offender’s sentence.’ ” (Black II, supra, at p. 818.) The exception is broadly interpreted “to include not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions.” (Id. at p. 819.)
The fact that Reiff was on probation was discernible by examining the records of his conviction. In fact, the matter was undisputed. His poor performance on probation evidently referred to his instant offenses, which were, of course, established by the jury in this case. Reiff argues for a narrow interpretation of the exception so that his probation status must be decided by a jury. His only direct authority, however, is Court of Appeal precedent rendered uncitable by the grant of review by our Supreme Court.
Our high court stands poised to decide this question in cases currently in its docket (People v. Towne (S125677), to be argued April 2, 2008; People v. Hernandez (S148974); People v. Prado (S148914)). We adhere for now to reasoning that a defendant’s parole status and poor performance fall within the exception. “[T]he exception to the jury trial right for prior convictions, ‘is not limited simply to the bare fact of a defendant’s prior conviction, but extends as well to the nature of that conviction, thereby permitting sentencing courts to determine whether the prior conviction is the type of conviction (for example, a conviction of a “violent” felony) that renders the defendant subject to an enhanced sentence.’ (People v. McGee (2006) 38 Cal.4th 682, 704.) As the McGee court explained, ‘Apprendi [Apprendi v. New Jersey (2000) 530 U.S. 466] distinguishes between “sentence enhancements that require factfinding related to the circumstance of the current offense, such as whether a defendant acted with the intent necessary to establish a ‘hate crime’—a task identified by Apprendi as one for the jury—and the examination of court records pertaining to a defendant’s prior conviction to determine the nature or basis of the conviction—a task to which Apprendi did not speak and ‘the type of inquiry that judges traditionally perform as part of the sentencing function.’ [Citation.]” [Citation.]
“Here, the factors that supported imposition of the upper term sentence were recidivism related: appellant’s status as a parolee and his prior unsatisfactory performance on parole. These factors can be determined by reference to ‘court records’ pertaining to appellant’s prior convictions, sentences and paroles. The mere recitation of his dates of conviction and releases on parole [citation] demonstrate, as a matter of law, that he committed new offenses while on parole. Thus he performed poorly on parole. [Citation.] No trial court or jury could rationally find otherwise. As a result, these factors fall within the Apprendi exception to the jury trial right. The trial court did not violate appellant’s Sixth Amendment rights by imposing the upper term without these findings by a jury.” (People v. Yim (2007) 152 Cal.App.4th 366, 370-371.)
Probation status and performance appear to be no different for purposes of the exception, particularly because Black II, decided a month following Yim, clarified that only one proper aggravating factor is needed to avoid the constitutional problem. (Black II, supra, 41 Cal.4th at p. 813; Sandoval, supra, 41 Cal.4th at p. 838.) Thus, here, the mere fact that Reiff was on probation—indisputably a matter discernible from court records of his conviction (People v. Guess (2007) 158 Cal.App.4th 283, 302; People v. Jones (2007) 157 Cal.App.4th 580, 601)—suffices to defeat the constitutional claim, without regard to the poor-performance factor.
The parties debate whether the court’s reliance on parole status and poor performance can be considered separate factors if we accept that the poor-performance finding was based on nothing more than commission of the new offenses. However, since Reiff claims only federal constitutional error based on denial of a jury trial right, rather than abuse of discretion in the court’s weighing process, we see no need to enter that thicket. Also unnecessary to discuss are arguments in supplemental letter briefs on a semantic point, whether the court, by citing parole status and performance, referred to “recidivism,” and on whether it is overly broad to characterize the Almendarez-Torres exception as a “recidivism” exception. The exception and the court’s stated reasons are what they are; we need only hold that the reliance falls within the Almendarez-Torres exception, whatever we might call it.
Alternatively, any constitutional error would be harmless under the reasoning of Sandoval. “[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.” (Sandoval, supra, 41 Cal.4th at p. 839.) Reiff concedes that, “under Sandoval, . . . it appears that a jury would have found that [he] was on probation at the time of the offenses,” but contends that Sandoval incorrectly decided the test of prejudice. He also contends that Black II was incorrectly decided. He concedes that we are bound to follow Black II and Sandoval (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455); he raises the arguments, he explains, “to preserve his right to federal review.”
DISPOSITION
The judgment is affirmed.
We concur: Kline, P.J.,Haerle, J.