P. v. Miranda

Filed 9/20/07 P. v. Miranda CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Mario Gonzalez Miranda appeals a judgment following conviction of three counts of residential burglary; forcible sodomy; forcible anal and genital penetration by a foreign object; two counts of attempted forcible sodomy; forcible oral copulation; forcible rape; and two counts of criminal threats, with findings of personal use of a deadly weapon, a prior serious felony conviction, and service of a prior prison term. (Pen. Code, 459, 286, subd. (c)(2), 289, subd. (a)(1), 664 & 286, subd. (c)(2), 288a, subd. (c)(2), 261, subd. (a)(2), 422, 667.61, 12022.3, subd. (a), 12022, subd. (b)(1), 667, subds. (b)-(i), 1170.12, subds. (a)-(d), & 667.5, subd. (b).)[1] We remand for resentencing regarding counts 6 and 7, but otherwise affirm.

FACTS AND PROCEDURAL HISTORY

Lazaro Burglary (count 1)

In the late evening of May 4, 2005, Alma Lazaro and her husband lay in bed. Alma heard noises in the living room of their apartment. The bedroom door opened, and a man with a white mask stood in the doorway. Alma called to her husband. The intruder ran toward a bedroom rented to a tenant. The tenant's window was open and the window screen torn. When the tenant returned home, he discovered that his wallet and money were missing. Approximately one week later, police officers executed a search warrant at Miranda's residence and found the tenant's wallet and identification.

Roque Burglary (count 2)

In the early morning of May 5, 2005, Liliana Roque awoke to the sound of her bedroom window and window blinds moving. She saw a man's hand reach through the window and attempt to unlock it. Liliana called to her boyfriend, and the noise stopped. Police officers later lifted fingerprints from the window. A fingerprint examiner opined that the fingerprints matched those of Miranda.

Criminal Offenses against the Does (counts 3-11)

During the evening of May 6, 2005, Jane and John Doe and their two children lay asleep in their bedroom. John awoke when an intruder moved a sharp object against his leg. The intruder demanded money while holding a knife against John. He also threatened the children.

When the Does informed the intruder that they had no money, he committed sexual offenses of sodomy, rape, and oral copulation against Jane. (Counts 4-9.) Afterward, he threatened to kill the family if they reported the crimes.

The Does drove to the police station and reported the crimes. Jane received a sexual assault medical exam that retrieved semen. DNA analysis later determined that Miranda was the semen donor.

Prior sexual assault evidence

During the early morning of August 21, 2002, Maria D. was awakened by an intruder as she slept. The intruder had a knife and committed several sexual acts against her. Eventually, Maria obtained his knife and escaped. DNA analysis linked Miranda to body fluids collected from Maria during a sexual assault examination. After two mistrials due to juror disagreement, Miranda pleaded guilty to making criminal threats with use of a deadly weapon.

Conviction and Sentencing

The jury convicted Miranda of residential burglary (three counts); forcible sodomy; forcible anal and genital penetration by a foreign object; attempted forcible sodomy; forcible oral copulation, forcible rape; and criminal threats (two counts). ( 459, 286, subd. (c)(2), 289, subd. (a)(1), 664 & 286, subd. (c)(2), 288a, subd. (c)(2), 261, subd. (a)(2), 422, 667.61, 12022.3, subd. (a), 12022, subd. (b)(1), 667, subds. (b)-(i), 1170.12, subds. (a)-(d), & 667.5, subd. (b).) The jury also found that Miranda personally used a deadly weapon during commission of the crimes pursuant to sections 667.61, 12022.3, subdivision (a), and 12022, subdivision (b)(1). The trial court did not expressly find that Miranda suffered a prior felony strike conviction and that he had served a prior prison term. ( 667, subds. (b)-(i), 1170.12, subds. (a)-(d), & 667.5, subd. (b).)

The trial court denied Miranda's motion to strike his prior serious felony conviction pursuant to People v. SuperiorCourt (Romero) (1996) 13 Cal.4th 497. It then sentenced him to 125 years' imprisonment plus an indeterminate sentence of 50-years-to-life. The trial court imposed upper-term sentences and full consecutive sentences for the sexual offenses. It also imposed a restitution fine, a parole revocation restitution fine, restitution payments to the victims, and an investigation fee.

During sentencing, the trial judge stated that Miranda should not "ever see the light of day" and that he "deserves the maximum sentence that is allowed by law." In imposing upper term and consecutive term sentences, the trial judge commented that Miranda possessed "absolutely no redeeming qualities whatsoever." The trial judge stated that he selected the upper terms because the crime involved great violence, great bodily injury, and threat of great bodily injury.

Miranda appeals and contends that the trial court erred by: 1) not instructing that section 667.61 requires that at the time he entered the Does' residence, he had the intent to commit an enumerated sexual offense; 2) imposing weapon use enhancements upon counts 5 through 11; 3) by not expressly finding that he suffered a prior strike conviction; 4) imposing full consecutive sentences for counts 6 and 7, attempted sodomy; and 5) imposing full consecutive upper-term sentences in violation of Cunningham v.California (2007) 549 U.S. -.

DISCUSSION

I.

Miranda argues that his sentence on count 4, imposed pursuant to section 667.61, is unauthorized because the trial court did not instruct that at the time he entered the Does' residence, he had the intent to commit an enumerated sexual offense. ( 667.61, subds. (c) & (d)(4).) He asserts that the trial court did not instruct on the specific intent required under the section 667.61 "one strike" law. (People v. Estrada (1997) 57 Cal.App.4th 1270, 1274-1275 [trial court shall instruct that jury must find defendant entered the premises with the intent to commit forcible rape in 667.61, subd. (d)(4) prosecution].)

The information filed against Miranda alleges two statutory violations of section 667.61: offenses committed during a burglary with the intent to commit an enumerated sexual offense ( 667.61, subd. (d)(4)); and enumerated sexual offenses committed during the commission of a burglary and with use of a deadly weapon ( 667.61, subds. (e)(2) & (e)(4).). The prosecutor argued and the trial court properly instructed concerning the latter violation. The jury expressly found the section 667.61, subdivisions (e)(2) and (e)(4), circumstances true. There is no error and Miranda has suffered no harm from a lack of instruction regarding the section 667.61, subdivision (d)(4), violation.

II.

Miranda contends that the trial court erred by imposing weapon-use enhancements on counts 5 through 11, because it imposed a one-strike sentence on count 4, relying upon weapon use as a statutory circumstance. ( 667.61, subd. (e)(4).) He claims that section 667.61, subdivision (f), and People v.Mancebo (2002) 27 Cal.4th 735, 741, preclude weapon-use enhancements ( 12022.3, subd. (a) & 12022, subd. (b)(1)) for counts 5 through 11.

Imposition of weapon-use enhancements upon counts 5 through 11 is proper because the trial court did not sentence those counts pursuant to the one-strike sentence law of section 667.61. People v. Mancebo, supra, 27 Cal.4th 735, held that the trial court may not impose weapon-use enhancements in addition to a one-strike sentence pursuant to section 667.61 if weapon use was a statutory circumstance pleaded and proved to invoke the one-strike sentence law. (Id., at p. 741.) "[S]ubdivision (f) of section 667.61 required that gun use, which was properly pled and proved, be counted toward the minimum number of circumstances necessary to establish a basis for the One Strike sentence. Hence, gun use could not serve as a ground for imposing enhancements under section 12022.5(a)." (Ibid.) The trial court was not precluded from imposing the weapon-use enhancements on counts 5 through 11 because it did not sentence Miranda to one-strike life terms on those counts pursuant to section 667.61.

III.

Miranda asserts that the trial court erred by sentencing him under the Three Strikes Law without expressly finding that he suffered a prior felony strike conviction. ( 1158 ["Whenever the fact of a previous conviction of another offense is charged in an accusatory pleading, and the defendant is found guilty of the offense with which he is charged, . . . the judge if a jury trial is waived, must unless the answer of the defendant admits such previous conviction, find whether or not he has suffered such previous conviction . . . ."]; People v.Eppinger (1895) 109 Cal. 294, 297-298 [failure to find on issue of prior conviction treated as acquittal].) He contends that his sentence must be vacated because a statement of a true finding of his prior conviction was overlooked by the court and counsel. (People v. Molina (1977) 74 Cal.App.3d 544, 550.)

We disagree. The trial court impliedly and sufficiently found that the prior felony conviction constituted a strike when it denied Miranda's motion to strike the prior conviction, and sentenced him applying strike sentencing rules. (People v.Chambers (2002) 104 Cal.App.4th 1047, 1050-1051 [trial court impliedly and sufficiently rendered true finding regarding firearm use allegation when it imposed a 10-year enhancement therefor].) Here is not a case where the trial court's silence implies an act of leniency. (In re Candelario (1970) 3 Cal.3d 702, 706; People v. Chambers, supra, 104 Cal.App.4th 1047, 1050.) A court minute order states that trial court found the prior serious felony strike conviction and the prison term prior to be true, defense counsel acknowledged during sentencing that "[t]he Court has found that the [prior felony conviction by plea] was valid, and the Court is planning on using it," and the trial court did impose sentence based upon strike sentencing rules. There is no miscarriage of justice and a remand for an express finding would be an exaltation of form over substance.

IV.

Miranda argues that the trial court erred by imposing full consecutive eight-year prison terms for counts 6 and 7, attempted sodomy. He points out that section 667.6, subdivision (c), does not apply to attempted crimes. (People v. Thomas (1990) 218 Cal.App.3d 1477, 1490 [attempted crimes are not within the ambit of 667.6, subd. (c)].) The Attorney General concedes and requests that we remand for resentencing.

V.

Miranda asserts that his sentence of full consecutive and upper-terms of imprisonment on counts 5, 6, 7, 8, and 9 violate his constitutional rights to a jury trial and to due process of law, pursuant to Cunningham v. California, supra, 549 U.S. -. He points out that the trial court stated these reasons for the selection of sentence: the crimes involved great violence, great bodily injury, the threat of great bodily injury or harm disclosing a high degree of cruelty, viciousness or callousness, use of a weapon, vulnerability of the victim, and the sophisticated and planned manner of commission of the crimes. Miranda adds that the trial court, not the jury, decided whether the sexual offenses were committed on "separate occasions" pursuant to section 667.6, subdivision (d).

In People v. Black (2005) 35 Cal.4th 1238, overruled on other grounds by Cunningham v. California, supra, 549 U.S. -, ("Black I"), our Supreme Court held that the trial court's decision to impose consecutive sentencing does not violate a defendant's right to a jury trial. In People v. Black (2007) 41 Cal.4th 799, 820-823 ("Black II") our Supreme Court reaffirmed its earlier holding and stated that "Cunningham does not call into question the conclusion we previously reached regarding consecutive sentences." (Id., at p. 823.) Imposition of consecutive sentences does not violate Miranda's constitutional rights to a jury trial and due process of law. (Ibid.)

Moreover, well-settled law establishes that recidivism is a traditional and permissible reason for increasing a defendant's sentence. (Black II, at p. 818.) The existence of a single aggravating sentencing factor is sufficient to render a defendant eligible for the upper-term of imprisonment. (Id., at p. 813.) It matters not that the sentencing court engages in additional factfinding. (Id., at pp. 812-813.) "[S]o long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury." (Id., at p. 813.)

During sentencing, the trial court's comments indicate that it had read the probation report. The probation report as well as the evidence at trial establishes that Miranda suffered convictions for petty theft, and later, for making criminal threats (the Maria D. incident). At the time of the present criminal offenses, Miranda was on parole.

Although the trial court did not refer to Miranda's recidivism as a reason to impose the upper term sentences, there is no doubt that it would do so if the matter were remanded. During sentencing, the trial judge stated that Miranda should never "see the light of day," that he "deserves the maximum sentence that is allowed by law," and that "he's shown no remorse at all, smirking on his face during the trial, smiling during the trial. . . . Incredible attitude . . . ." Under any standard of review, the trial court's reliance on other factors to impose upper-term sentences is harmless.

We reverse the judgment regarding counts 6 and 7 and remand for resentencing. The judgment is otherwise affirmed.

NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

YEGAN, J.

COFFEE, J.

Herbert Curtis III, Judge

Superior Court County of Ventura

______________________________

Raymond L. Girard, 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, Senior Assistant Attorney General, Susan Sullivan Pithey, Erika D. Jackson, Deputy Attorneys General, for Plaintiff and Respondent.

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[1] All statutory references are to the Penal Code unless stated otherwise.