Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, George Gonzalez-Lomeli, Judge. Los Angeles County Super. Ct. No. BA280428.
Deborah L. Hawkins, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer and Edmund G. Brown, Attorneys General, Mary Jo Graves and Dane R. Gillette, Chief Assistant Attorneys General, Pamela C. Hamanaka, Assistant Attorney General, Michael R. Johnsen, Tita Nguyen and Steven E. Mercer, Deputy Attorneys General, for Plaintiff and Respondent.
MANELLA, J.
Rogelio Santivanes appeals from judgment entered following a jury trial in which he was convicted of three counts of kidnapping for carjacking, counts 1, 7 and 8 (Pen. Code, § 209.5, subd. (a)), three counts of kidnapping to commit robbery, counts 2, 9 and 10 (Pen. Code, § 209, subd. (b)(1)), two counts of second degree robbery, counts 4 and 5 (Pen. Code, § 211) and one count of misdemeanor sexual battery, count 6 (Pen. Code, § 243.4, subd. (e)(1)). On counts 1 and 7, he was sentenced to two consecutive prison terms of life with the possibility of parole. Sentence on the remaining counts was either stayed pursuant to Penal Code section 654 or ordered to run concurrently with the sentences imposed in counts 1 and 7. He contends the trial court erred when it sentenced him on counts 1 and 7 to consecutive terms based on facts not found by the jury, violating his federal constitutional rights to due process and trial by jury. For reasons explained in the opinion, we affirm the judgment and order the abstract of judgment corrected to reflect the proper sentence.
The court incorrectly stated the terms were “seven years to life.” By letter, we asked both parties to address whether the sentence was an illegal sentence. Both parties claimed appellant was properly sentenced and the reference to seven years was pursuant to Penal Code section 3046, setting the minimum term before eligibility for parole. Penal Code section 209.5, however, provides this crime shall be punished by imprisonment in the state prison for life with the possibility of parole. The sentence is an indeterminate sentence of life in prison but the Board of Prison Terms can, in its discretion, release the defendant on parole. (See Pen. Code, § 3046; People v. Jefferson (1999) 21 Cal.4th 86, 92-93.) In our disposition, we will order the abstract of judgment corrected to reflect appellant was sentenced on counts 1 and 7 to consecutive terms of life in prison with the possibility of parole.
FACTUAL AND PROCEDURAL SUMMARY
On March 17, 2005, at approximately 12:30 a.m., after leaving a friend’s 22nd birthday party at a hotel in downtown Los Angeles, Myra A., Jessica S. and Connie Al. were standing by Ms. Al.’s car when appellant grabbed Ms. A. from behind and pushed her towards the car. He pushed something, which she believed to be a gun, into her hip and said in an aggressive and violent manner, “Shut up or I will blow your brains out.” Ms. A. was terrified; it was “probably the most terrifying five seconds of [her] life.”
Appellant ordered all three women into the car, pushing Ms. A. into the back seat with him and commanding Ms. Al. to drive. Appellant told Ms. S. and Ms. Al. not to turn around and look at him and physically held Ms. A. down, with her face on his knees, not letting her move. Appellant first asked for the cell phones, I.D.’s and credit cards of Ms. Al. and Ms. S. and then for the car stereo. Appellant threatened to shoot Ms. A. in the head if the women did not comply. Appellant got very angry when the women could not take out the car stereo and then demanded they take out the rearview mirror; he continually threatened to shoot Ms. A.
Appellant asked the women if they had any money and when Ms. Al. and Ms. S. said they did not, he said, “Well, we’re going to have to work something out.” Ms. A. could not speak because she was so frightened. When Ms. A. started crying, appellant threatened to shoot her if she did not “shut up.” Ms. S. told appellant her friend’s life was “worth a lot” and offered to get money from an A.T.M. Appellant told the women if the police stopped the car, they were to say appellant was their cousin and they were all going to a party together, and that if they did not comply he would have no problem shooting them. While driving to the A.T. M., appellant insulted the women in an “aggressive” manner “like he meant it.” He called them whores, stating, “This is what you get for being whores out on the street.” He said, “This is what you deserve. This is like the worst nightmare you had ever had in your life. All your parents had ever warned you about is coming true tonight.” He said, “You deserve this.” He kept insulting them and calling them “whores” in Spanish. When they arrived at the A.T.M., they all got out of the car and appellant said if they tried to run away, he would have no problem shooting them. Appellant ordered Ms. A. to walk with him and hug him like he was her boyfriend and he continued to have the sharp object “jammed in [her] side.” Appellant demanded $1,000, but Ms. S. could only retrieve $400 because of the A.T.M. limit. Ms. Al. used her A.T.M. card and retrieved $200.
Appellant ordered the women back into the car and ordered Ms. Al. to start driving again. Appellant said he was avenging his sisters’ deaths because they had been murdered and raped and did not deserve it, but Ms. A. and her companions did. Appellant said, “[D]on’t think this is my first time doing this. . . . I’ve done it to other girls and they were just as stupid as you were.” Based on his tone of voice and the way he said these things, Ms. A. believed everything appellant was telling her and that her “life was at stake.” Appellant also said he had killed four times before and did not care. He wanted to go to jail to be with his brother. While Ms. A. had her head on appellant’s knees, he breathed down her neck, kissed her on the cheek and neck and cupped her breasts. He took her earrings and threw one of them out of the window.
Thereafter, appellant “broke down and . . . asked . . . if [they] would think it was funny if this was all a joke.” Appellant cried, said “here’s your money back” and asked for forgiveness for what he had done. When Ms. Al. and Ms. S. said to take the money, “consider it a gift from us, but just leave us alone, just leave the car,” appellant would not leave the car. Ms. S. refused to take the money back and because Ms. A. was so upset offered to switch places with her and sit in the back seat with appellant. Appellant let the women change places in the car and ordered Ms. Al. to drive.
After a while, appellant ordered Ms. A. and Ms. S. to switch places and his tone became aggressive again. Appellant threatened to shoot Ms. A. and her friends when she was outside of the car unless she came back inside. Appellant ordered Ms. Al. to drive north on the 101 Freeway and to drive fast. He said that if she slowed down he would maneuver the car himself and they would “crash and die right here.” Appellant made Ms. A. dial a phone number on Ms. S.’s cell phone and heard him say he had “‘these three whores with [him], and they’re so stupid, they’re doing everything I tell them to.’” He said, “‘They’re not like that stupid bitch from last time, Mary Lou, so just . . . get the black truck ready and we’ll take them to Texas tonight.’” Ms. A. thought “it was the end” that no one would be able to help them or find them.
Appellant told the women if they ever “turned [him] in,” he knew where they lived because of their I.D.’s and he had people working for him who would kill them. They drove for a total of approximately three hours until a police car pulled them over. The police spoke to them through a speaker and told Ms. Al. to turn off the ignition and throw the keys out of the window. The police then ordered each of the individuals to get out of the car with their hands in the air. When appellant got out of the car, he was arrested and $600 in cash and a mascara tube were recovered from his front pocket.
Ms. Al. had secretly called her boyfriend on her cell phone and asked appellant where he wanted her to drive. Her boyfriend heard what was happening and where they were driving and phoned the police with the information.
DISCUSSION
The court sentenced appellant in count 1, involving victim Jessica S., to life in prison with the possibility of parole. Similarly, he was sentenced to a consecutive life term for count 7, involving victim Connie Al. Sentences on the remaining counts were ordered to run concurrently or stayed. The court noted the crimes involved the threat of great bodily injury, planning and sophistication, and multiple victims. In mitigation, the court noted there was no indication of a prior record or that a weapon was involved.
Appellant contends his sentence violates his federal constitutional rights to due process and jury trial in that in choosing to impose consecutive sentences, the court relied on factors not found by a jury. (Blakely v. Washington (2004) 542 U.S. 296, 303; Apprendi v. New Jersey (2000) 530 U.S. 466, 490.) We disagree.
“[T]he Federal Constitution’s jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant. [Citations.]” (Cunningham v. California (Jan. 22, 2007, No. 05-6551) 549 U.S. ___ [127 S.Ct. 856, 860].) In Cunningham, “the high court held that California’s Determinate Sentencing Law violates a defendant’s Sixth and Fourteenth Amendment right to a jury trial to the extent it permits a trial court to impose an upper term based on facts found by the court rather than by a jury beyond a reasonable doubt.” (People v. Calhoun (2007) 40 Cal.4th 398, 406.) The rules of Blakely and Cunningham do not apply here, however. Appellant’s sentence was an indeterminate sentence of life in prison and not part of California’s determinate sentencing law. (See Blakely v. Washington, supra, 542 U.S. 296, 309; People v. Felix (2000) 22 Cal.4th 651, 659.) The effect of imposing consecutive life sentences merely increased the minimum time appellant would have to serve before being eligible for parole. There was no increase in the maximum statutory penalty which was imprisonment in the state prison for life with the possibility of parole.
In People v. Sengpadychith (2001) 26 Cal.4th 316, 324-326, our Supreme Court questioned what harmless error standard governed a trial court’s failure to instruct the jury on the “primary activities” element of the criminal street gang enhancement. It observed that under the decision of Apprendi v. New Jersey, supra, 530 U.S. 466, the answer depended on whether the enhancement provision increased the maximum possible penalty for the underlying crime. It noted, “This is what Apprendi teaches us: Except for sentence enhancement provisions that are based on a defendant’s prior conviction, the federal Constitution requires a jury to find, beyond a reasonable doubt, the existence of every element of a sentence enhancement that increases the penalty for a crime beyond the ‘prescribed statutory maximum’ punishment for that crime. [Citation.] Therefore, a trial court’s failure to instruct the jury on an element of a sentence enhancement provision (other than one based on a prior conviction), is federal constitutional error if the provision ‘increases the penalty for [the underlying] crime beyond the prescribed statutory maximum.’ [Citation.]” People v. Sengpadychith, supra, 26 Cal.4th 316, 326.) The court observed there was a category of felony offenses punishable by an indeterminate term of imprisonment for life and that the gang enhancement did not alter that term but merely increased the minimum period the defendant must serve before becoming eligible for parole. (Id. at p. 327.) For those felonies “the gang enhancement provision does not increase the life term for the underlying offense.” (Ibid.) Similarly, the imposition of consecutive life terms in the present case did not increase the life term but only increased the minimum time appellant was required to serve before he became eligible for parole; thus the principles of Blakely and Cunningham do not apply.
Moreover, even assuming the trial court committed Blakely and Cunningham error by imposing consecutive life sentences, the error was harmless beyond a reasonable doubt. (See Washington v. Recuenco (2006) 548 U.S. ___ [126 S.Ct. 2546].) In People v. Calhoun, supra, 40 Cal.4th at p. 406, our Supreme Court observed Cunningham was not implicated when the trial court, relying in part on multiple victims, sentenced a defendant to upper terms on two counts of gross vehicular manslaughter and two counts of reckless driving causing bodily injury. The Court reasoned that the jury had necessarily found there were multiple victims. The reasoning of Calhoun is applicable here. Appellant was convicted of two counts of kidnapping for carjacking. The victim in count 1 was Jessica S. and the victim in count 7 was Connie Al. The jury necessarily found there were multiple victims and this factor was properly used to impose consecutive sentences. Additionally, the evidence was overwhelming that appellant threatened great bodily injury. Appellant did not contest the circumstances of the crimes and the jury heard no evidence otherwise. The defense was that the victims were overreacting, that appellant was not in his right mind and that he was not a person to be taken seriously. Under these circumstances, we can say that no reasonable jury would fail to find appellant threatened great bodily injury. While the court also noted the crimes demonstrated planning and sophistication, there is no reasonable possibility that had the court not considered that factor, the sentence would have been different. (See People v. Sayres (2007) 150 Cal.App.4th 1040, 1045-1046; People v. Lozano (2007) 150 Cal.App.4th 1304, 1309.)
DISPOSITION
The judgment is affirmed. The trial court is directed to amend the abstract of judgment to reflect that appellant was sentenced on counts 1 and 7 to consecutive prison terms of life with the possibility of parole. The trial court is directed to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
We concur: EPSTEIN, P. J., SUZUKAWA, J.