P. v. Pope

Filed 10/12/07 P. v. Pope CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

David E. Pope (Pope) appeals from a judgment entered after a jury found him guilty of two criminal offenses and the court sentenced him to consecutive terms. (Pen. Code,  667.6, subd. (d).)^[1] He contends that the imposition of consecutive sentences, without a relevant factual finding by the jury, violates his constitutional rights under Cunningham v. California (2007) 127 S.Ct. 856 (Cunningham).) He also contends the trial courts findings were insufficient for purposes of section 667.6, subdivision (d). We will affirm the judgment.

I. FACTS AND PROCEDURAL HISTORY
Pope was charged by information with three counts: oral copulation by force or fear ( 288a, subd. (c)(2)); sexual penetration with a foreign object, by force or fear ( 289, subd. (a)(1)); and rape by force or fear ( 261, subd. (a)(2)). The matter proceeded to trial by jury.

A. Evidence at Trial

As summarized in a previous appeal (appeal No. A097997), the evidence at trial included the following:

In brief, appellants daughter testified he raped her and penetrated her with his finger, while she was working at his pear ranch in 1994. Appellant acted under the pretext of conducting Touch for Health sessions with his daughter, in which he would take off her clothing and massage her. Appellant increasingly began to turn the massage sessions into sexual encounters, in which he massaged his daughter sexually and penetrated her with his finger, while she struggled to resist. He also told his daughter that she had a nice pussy and that he was going to fuck [her]. Appellant then put on a condom and raped his daughter.

Afterward, the victim telephoned her aunt and asked to be picked up. She left the pear ranch, never to return. The victim was embarrassed and did not initially want to report the rape, because she did not want anyone else to know. A few weeks after the incident, the victim told her aunt and her boyfriend. [Footnote omitted.]

About a year later, in August of 1995, the victim reported the rape to Lake County Deputy Sheriff Jim Samples. Samples in turn reported the matter to the local child protective services agency, which met the victim and her grandmother on August 10, 1995. Samples did not feel he could press the victim to come forward at that time with charges, unless she was ready to do so. Samples had made brief investigative notes, but these notes were lost or misplaced.

In the summer of 1999, the victim again approached law enforcement authorities regarding the rape. She had learned that appellant had sired another child, a daughter, and the victim did not want this child to also be abused by appellant. This time, the victim spoke with Deputy Mike Curran. She showed Curran her work ledger diary entries, and explained the significance of the notations HRM and HM. At trial, the victim explained that the letters HRM signified He Raped Me and HM meant Help Me.

Curran requested the victim to call appellant on a pretext, and she did so; the call was taped and a transcript was prepared. The victim also set up a meeting at a park at which she wore a wire to record the conversation surreptitiously. At the meeting however appellant brought an erasable writing tablet, and he wrote on it that the victim should write things down and not talk out loud. [] . . . [] 

Appellant testified in his own defense under questioning by his brother, an attorney. Appellant confirmed that he had given the victim instruction in the Touch for Health massage system. However, he denied there was any sexual content, adding that he and his daughter were always clothed except for the part of the body being massaged. Appellant acknowledged that sometimes the victim was wearing only underpants and a bra.

B. Jury Verdict and Sentence

In April 2001, the jury convicted Pope of the sexual penetration charge in count II ( 289, subd. (a)(1)) and the forcible rape charge in count III ( 261, subd. (a)(2)). The jury acquitted him as to count I.

In January 2002, Pope was sentenced to state prison for 12 years, based on the midterm of six years on count II and the midterm of six years on count III. The court ordered the two terms to run consecutively.

Pope appealed, and this court affirmed the judgment (appeal No. A097997) in August 2003.

In March 2005, Pope filed a petition for a writ of habeas corpus in the trial court, contending that the sentencing courts imposition of consecutive terms violated Blakely v. Washington (2004) 542 U.S. 296 (Blakely). He also argued that under section 667.6, subdivision (d), the court was required to state its reasons for imposing the sentences consecutively. In addition, Pope contended, a consecutive sentence required factual findings that could be made only by a jury.

In January 2006, the court rejected Popes Blakely argument but granted his habeas petition on other grounds and ordered that Pope be resentenced with a clearer indication of the basis for imposing consecutive terms.^[2]

On May 1, 2006, the court resentenced Pope to 12 years in state prison, again based on the midterm of six years on count II and the midterm of six years on count III, to be served consecutively. The court found that under section 667.6, subdivision (d), the sentences were to be served consecutively because the two acts of which Pope was found guilty were committed against the same victim on different occasions, in that they were sufficiently separate in time such that Pope had an opportunity to reflect on what he had done and refrain from reoffending.

This appeal followed.

II. DISCUSSION

Section 669 requires that when a person has been convicted of two or more offenses, the court must decide whether the terms are to run concurrently or consecutively. Under section 667.6, subdivision (d), the court may impose sentences consecutively if it finds that the offenses were committed on separate occasions. Section 667.6, subdivision (d) explains: In determining whether crimes against a single victim were committed on separate occasions under this subdivision, the court shall consider whether, between the commission of one sex crime and another, the defendant had a reasonable opportunity to reflect upon his or her actions and nevertheless resumed sexually assaultive behavior. Neither the duration of time between crimes, nor whether or not the defendant lost or abandoned his or her opportunity to attack, shall be, in and of itself, determinative on the issue of whether the crimes in question occurred on separate occasions. (See People v. Irvin (1996) 43 Cal.App.4th 1063, 1072 [sentencing court must give a factual explanation supporting its finding of separate occasions under

 667.6, subd. (d) ].)

A. Cunningham

Pope contends that his sentence violates the holding in Cunningham because the court imposed consecutive sentences based on a factual finding that the two offenses were committed against a single victim on separate occasions, and this factual finding must be made by the jury.

This issue was decided by our Supreme Court in People v. Black (2007) 41 Cal.4th 799 (Black), holding that neither Cunningham nor any relevant prior high court decision applies to the imposition of consecutive terms. (Id. at pp. 806, 820-823.) As the court in Black explained, the jurys verdict finding the defendant guilty of two or more crimes authorizes the statutory maximum sentence for each offense; although the sentencing court must state its reasons for its sentencing choice of consecutive terms, it need not make an additional factual finding implicating Cunningham. (Black, supra, at pp. 820-823.) We must and will follow our Supreme Courts precedent and reject Popes Cunningham argument. (Auto Equity Sales, Inc.v.Superior Court (1962) 57 Cal.2d 450, 455.)

B. Sufficiency of Courts Findings Under Section 667.6, Subdivision (d)

Pope also argues that the courts stated reasons for imposing the consecutive sentence under section 667.6, subdivision (d), do not comport with the language of the subdivision or with the requirements set forth in People v. Craft (1986) 41 Cal.3d 554 (Craft).

As mentioned, section 667.6, subdivision (d) requires the court to consider whether, between the commission of one sex crime and another, the defendant had a reasonable opportunity to reflect upon his or her actions and nevertheless resumed sexually assaultive behavior. In Craft, the court held that section 667.6, subdivision (d) applied only to offenses against the same victim between which the perpetrator temporarily lost or abandoned the opportunity to continue his attack. (Craft, supra, 41 Cal.3d at p. 561.) This holding in Craft, however, was expressly abrogated by the Legislature when it amended section 667.6 by adding that whether or not the defendant lost or abandoned his or her opportunity to attack was not in and of itself dispositive of whether the offenses took place on separate occasions. ( 667.6, subd. (d); People v. Jones (2001) 25 Cal.4th 98, 104, fn. 2.)

In the matter before us, the sentencing court gave the following reasons for its decision to impose the sentences consecutively: These two acts of which Defendant was found guilty are supported by substantial evidence of a sufficient separation in time, that the defendant following one had an opportunity to reflect on what he had done and refrained from having reoffended, and that therefore the application of the consecutive rule is applicable. end quote. And that further the charged time period for each count is different and the testimony of the victim was that these two acts occurred on different days. (Italics added.) This recitation of relevant facts supports the conclusion that Pope committed his crimes on two separate occasions for purposes of section 667.6, subdivision (d), and even that he temporarily lost or abandoned the opportunity to continue his attack before reoffending. Pope fails to persuade us that the courts statement of its reasons for imposing consecutive sentences was insufficient.

III. DISPOSITION
The judgment is affirmed.

NEEDHAM, J.

We concur.

JONES, P. J.

GEMELLO, J.

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^[1] Unless otherwise indicated, all statutory references are to the Penal Code.

^[2] The minute order granting the petition states: Findings at time of sentencing are insufficient for sentencing under 667.6(c), but are sufficient under 667.6(d). This court is unable to divine what code the sentencing judge was intending to say.