P. v. Servin

Filed 12/17/08 P. v. Servin CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Merced County. Ronald W. Hansen, Judge.

Richard L. Rubin, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Lloyd G. Carter, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant Candido Juares Servin broke into a series of homes and committed sexual assaults and other crimes against women and girls he found inside. A jury found him guilty of 19 charges and the court imposed an aggregate sentence of 106 years two months to life. He challenges his sentence on several grounds. We modify the judgment to stay, pursuant to Penal Code section 654, an eight-month sentence for false imprisonment. The judgment is affirmed as modified.

FACTUAL AND PROCEDURAL HISTORIES

The crimes took place in the spring of 2005 in the town of Atwater, where Servin lived with his wife and two small daughters. On March 5, 2005, a man broke into the home of 19-year-old L.P. on Grove Avenue, near Servins house, at 4:00 or 5:00 a.m. L.P. was sleeping in her bed with her eight-month-old daughter. When she awoke, the man put a knife to her throat and told her in Spanish to be quiet. He touched her breasts, forced her to the floor, placed his fingers inside her vagina, and placed his mouth on her vagina. He threatened to hurt the baby if L.P. called the police. Then he demanded that she masturbate him. When she refused and pulled her hand from his grasp, he masturbated himself. Someone made noise in the bathroom. The man covered L.P.s mouth with his hand and said he would kill the baby if L.P. did not keep quiet. He also said that if she ever told anyone, he could harm her or her daughter. Finally, the man fled. L.P. could not identify the man, but police found Servins fingerprints on the window through which he entered.

On March 15, 2005, again entering through a window, a man broke into the home of 15-year-old Y.C., which was also on Grove Avenue, two blocks from L.P.s home. Y.C. awoke and found the man in her room. When she sat up, he pushed her down and said in Spanish that she should shut up or he would kill her. Y.C. turned on a light and screamed. Y.C.s two sisters, who were in the same bed, also screamed. The man fled. He was wearing a black baseball cap and red sweater; Y.C. thought he was about five feet four inches tall, Hispanic, and with a medium build. She thought Servin looked like the man, but was not sure. Servin later told police he had a black cap.

On April 22, 2005, a man broke into the home of 29-year-old M.A. on Olive Avenue. The man entered through a window. M.A. had three children, the youngest of whom, a five-year-old, was sleeping in her bed with her. When M.A. awoke and asked the man why he was there, he brandished a knife and told her in Spanish to be quiet or he would kill her. He ordered her to lie down, then removed her pants and underwear and put his fingers in her vagina. Next, he put his mouth on her vagina. He then lay on the floor and directed M.A. to lie on top of him. He placed his penis inside her vagina. He removed his penis and ordered M.A. to lie on the floor. He got on top of her and inserted his penis in her vagina again. After this, the man masturbated. Before leaving, the man removed M.A.s cordless telephone from his pants, where he had placed it earlier, wiped it with something, and threw it on the bed. Finally, he left through the window. Days later, the man appeared outside M.A.s window after midnight and apologized. M.A. identified Servin as the man who raped her. DNA from semen found on M.A.s underwear and body was tested and found to be Servins.

On May 10, 2005, at 1:00 or 2:00 a.m., a man broke into the home of 18-year-old E.G. on Elm Avenue. Elm Avenue is two blocks away from Olive Avenue. E.G. was in bed with her 14-year-old sister. She woke up to find the man rubbing her vaginal area through her pants. Moving a hand to a pocket as if to reach for a weapon, he told her in Spanish he would silence or kill her if she did not cooperate. While the sister pretended to be asleep, the man got into the bed, tried to unbutton E.G.s bra, and tried to make her touch his penis with her hand. She asked him why he was doing this to her and told him she was a virgin and a Jehovahs Witness. He apologized. Persuaded that he was not going to hurt her, she finally said she would call for help if he did not leave. He left by the window through which he had entered. E.G. identified Servin as the man who broke into her room. She said her level of certainty that it was him was nine on a scale of one to 10.

On May 19, 2005, at about 2:00 a.m., a man broke into the home of G.C. on Olive Avenue. He entered through a window. G.C. lived with her 23-year-old daughter and 19-year-old son. G.C. was lying awake in bed with the lights off when, after she heard a noise in the kitchen, a strange man opened the door to her bedroom and walked in. He was holding a knife and told her in Spanish that she should be quiet and keep the lights off or he would kill her. G.C. got up and turned on a light. The man ran toward her, approaching within about a foot and a half, then turned, ran out of the room, and fled from the house through a door. G.C. identified Servin as the man who broke into her house.

Sometime after midnight on June 3, 2005, two residents, Marguerite Padilla and Carlos Flores, were standing outside their house on Willow Street. They had locked themselves out of their car at a restaurant in town; a friend had brought them home. They called a tow truck and were preparing to return to the restaurant in their other car to meet it. As she was about to get in the car, Padilla heard a noise in the rose bushes separating her yard from her neighbors yard, looked down, and saw a man lying on the ground among the bushes about a foot away from her. The neighbors had a teenage daughter. Padilla screamed, the prowler ran, and Flores tackled him. Padilla called the police, who came and arrested the prowler, who turned out to be Servin. A red baseball hat, a pair of scissors, and a pair of wire cutters were on the ground near where Flores tackled him.

After police read Servin his Miranda rights, he agreed to be interviewed. The interview was tape-recorded. Servin first denied involvement in the crimes, but then admitted to breaking into five homes, touching women who lived in them, and having sex with one of the women against her will. He denied using force, making threats, or having a knife. Next, prompted by police, Servin wrote a letter apologizing for having frightened his victims. Finally, he agreed to accompany detectives as they drove around town to each of the crime scenes. In a recorded conversation, he admitted breaking into each home, having sex with M.A., and touching L.P.

The district attorney filed a 20-count information, including several sentence-enhancement allegations:

Servin testified at the jury trial. He denied that he had any knowledge of the crimes before the police interviewed him and claimed he confessed because a detective threatened him, saying he could go home if he confessed but would go to prison otherwise.

Count seven, tampering with a telephone, was dismissed on the Peoples motion. The jury found defendant guilty of the remaining 19 counts. It also found all the enhancement allegations true except those set forth in connection with counts two, three, four, five, nine, and 10 under Penal Code section 667.61, subdivision (e)(2).^[1] Those allegations were made as alternatives to those made under section 667.61, subdivision (d)(4), which were among the allegations the jury found true.

Based on the jurys findings under section 667.61, the court imposed consecutive sentences of 25 years to life each for the rape of M.A. (count two) and the forcible sexual penetration of L.P. (count nine). For those counts, the court also imposed enhancements of four years each under section 12022.3, subdivision (a), for knife use. For the second rape of M.A. (count three), the forcible sexual penetration of M.A. (count four), the forcible oral copulation of M.A. (count five), and the forcible oral copulation of L.P. (count 10), the court imposed consecutive sentences of six years (the full middle term) each. To each of those, it added an enhancement of four years under section 12022.3, subdivision (a), for knife use. For the attempted sexual battery of L.P. (count 11), the court imposed a consecutive sentence of six months, equal to one-third of the middle term. It imposed the three-year middle term, to run consecutively, for the attempt to dissuade L.P. from testifying (count 13). For the burglaries in counts 14, 15 and 16, the court imposed consecutive sentences of one year four months each, equal to one-third of the middle term. Finally, the court imposed a consecutive sentence of eight months, equal to one-third of the middle term, for the false imprisonment (count 18). Sentences for the remaining counts (one, six, eight, 12, 17, 19 and 20) and enhancements were stayed. The aggregate sentence was 106 years two months to life.

DISCUSSION

I. Blakely/Cunningham: consecutive sentences

The court chose to impose consecutive sentences for counts four (forcible sexual penetration of M.A., with weapon enhancement, 10 years); five (forcible oral copulation of M.A., with weapon enhancement, 10 years); 10 (forcible oral copulation of L.P., with weapon enhancement, 10 years); 11 (attempted sexual battery of L.P., six months); 14 (burglary of home of G.C., one year four months); 15 (burglary of home of E.G., one year four months); and 18 (false imprisonment of E.G., eight months). Servin argues that these consecutive sentences contravene Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and Cunningham v. California (2007) 549 U.S. 270 (Cunningham) because the decision to impose them was not supported by facts admitted by him or found by the jury.

In People v. Black (2005) 35 Cal.4th 1238, 1263 (Black I), our Supreme Court held that Blakely does not apply to a trial courts decision to impose consecutive sentences. In People v. Black (2007) 41 Cal.4th 799, 821 (Black II), the court reaffirmed this conclusion, stating that it was not undermined by Cunningham even though Cunningham abrogated Black I on the issue of upper terms. The Black II court examined section 669, which provides that a court imposing sentence for two crimes must decide whether they are to run concurrently or consecutively; if it fails to do so, they are to run concurrently. The court held that these provisions do not require the sentencing court to make any factual findings before imposing consecutive sentences and do not create a presumption in favor of concurrent sentences. This means Blakely and Cunningham have no application to consecutive sentences imposed under section 669, for those cases held that if state law requires a factual finding as a prerequisite to the imposition of a sentence, the facts in question must be found by the jury or admitted by the defendant or must consist of prior convictions. (Black II, supra, 41 Cal.4th at pp. 822-823.) As authoritatively interpreted by the California Supreme Court, the California statute does not require any factual finding as a prerequisite to the imposition of consecutive sentences. There is no presumption and the decision is discretionary with the sentencing court.^[2]

Servin acknowledges that we are compelled to follow Black II. He raises the issue only to preserve it for later review. We hold there was no error in the imposition of these consecutive sentences.

II. Full-term consecutive sentences for multiple sex crimes

Counts four and five charged forcible sexual penetration and forcible oral copulation of M.A., whom Servin also forcibly raped. Count 10 charged forcible oral copulation of L.P., whom Servin also forcibly sexually penetrated. Citing section 667.6, subdivisions (c) and (d), the court imposed full-term consecutive sentences for counts four, five and 10; it did not apply section 1170.1, subdivision (a), which would have called for consecutive sentences equal to one-third of the middle term. Servin says this was error.

The court cited subdivisions (c) and (d) of section 667.6 as alternatives, indicating that either one would support the sentence. Subdivision (c) provides that, [i]n lieu of the term provided in Section 1170.1, a full, separate, and consecutive term may be imposed for each enumerated sex offense if the crimes involve the same victim on the same occasion. (Italics added.) This gives the court a discretionary power to impose full-term consecutive sentences even where it finds that multiple sex acts resulting in multiple convictions had no interval between them and therefore were parts of a single occasion. Subdivision (d) provides that [a] full, separate, and consecutive term shall be imposed for each enumerated offense if the crimes involve separate victims or involve the same victim on separate occasions. (Italics added.) That language mandates full-term consecutive sentences where the multiple sex acts are sufficiently separated in time to constitute separate occasions.

Servin first argues that the sentences contravened Blakely and Cunningham. This is so, he contends, regardless of whether the court was relying on its discretionary authority under section 667.6, subdivision (c), or acting pursuant to the mandate of subdivision (d). Either way, according to Servin, the Sixth Amendment as interpreted in Blakely and Cunningham demanded facts admitted by him or found by the jury as a basis for full-term consecutive sentences; there were no such facts.

With respect to section 667.6, subdivision (c), the California Supreme Courts reasoning about consecutive sentences in Black II applies here. Subdivision (c) simply says the court may impose full-term consecutive sentences; it requires no factual findings and creates no presumptions. Just as with the decision under section 669, the decision here is within the trial courts discretion. Since no factual findings are necessary to the imposition of full-term consecutive sentences under the statute, the question of whether any factual findings must be made by the jury or admitted by the defendant does not arise. Blakely and Cunningham therefore are inapplicable.

As part of his Blakely/Cunningham argument, Servin refers to the state-law requirement that a court imposing sentence under section 667.6,subdivision (c), must state reasons for doing so on the record. (People v. Belmontes (1983) 34 Cal.3d 335, 347-348.) It is not clear, either in his opening brief or in his reply brief, whether Servin intends to assert a failure in this regard as an independent theory of state-law error or only as support for his claim of Blakely/Cunningham error arising from a failure to rely on facts found by the jury or admitted by the defendant. Because Servin never clearly asserts this as an independent theory under state law, we will not address it as such. Further, even if he clearly had made an independent state-law argument on these grounds, his omission of an objection in the trial court to its failure to state adequate reasons for a discretionary sentencing choice waived any error of that kind. (People v. Scott (1994) 9 Cal.4th 331, 353.)

We need not consider whether Servins Blakely/Cunningham argument is well-taken with respect to the separate-occasion findings under section 667.6, subdivision (d). The trial court relied on the two subdivisions as alternative bases; its reliance on subdivision (c) was both valid and sufficient on its own. Likewise, we need not consider Servins argument that the court erred under state law in applying subdivision (d) because there was insufficient evidence to support a finding of separate occasions.

III. Section 654

Servin committed three crimes against E.G.: First degree burglary (count 16), misdemeanor sexual battery (count 17), and false imprisonment (count 18). The court stayed the sentence for misdemeanor sexual battery and imposed consecutive terms of one year four months for burglary and eight months for false imprisonment. Servin argues that, because the offenses had a single criminal objectivei.e., to sexually assault E.G.the court ought to have stayed the sentence for false imprisonment pursuant to section 654. We agree.

Section 654, subdivision (a), provides:

An 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.

This statute bars multiple punishment not only for a single criminal act but for a single indivisible course of conduct in which the defendant had only one criminal intent or objective. (People v. Bauer (1969) 1 Cal.3d 368, 376; In re Ward (1966) 64 Cal.2d 672, 675-676; Neal v. State of California (1960) 55 Cal.2d 11, 19.) We review under the substantial-evidence standard the courts factual finding, implicit or explicit, of whether or not there was a single criminal act or a course of conduct with a single criminal objective. (People v. Coleman (1989) 48 Cal.3d 112, 162; People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1408.) As always, we review the trial courts conclusions of law de novo. (Hill v. City of Long Beach (1995) 33 Cal.App.4th 1684, 1687.)

Many cases have held that the objective of a burglary is not divisible from the burglars objective in committing crimes once inside the building. (See, e.g., People v. Miller (1977) 18 Cal.3d 873, 886 [sentence for assault with deadly weapon stayed under  654 where burglar entered store and committed robbery and assault inside], overruled on other grounds in People v. Oates (2004) 32 Cal.4th 1048, 1067, fn. 8; People v. McElrath (1985) 175 Cal.App.3d 178, 191 [burglary sentence stayed under  654 where burglar entered house with intent to rape and did rape victim]; People v. Collins (1963) 220 Cal.App.2d 563, 578-579 [burglars sentences for theft and assault with deadly weapon set aside where he committed those offenses after entering house with intent to commit theft].) In cases reaching the opposite result, the second crime has generally been connected with some concrete occurrence, such as an escape or flight, on the basis of which a new objective could be imputed. (See, e.g., People v. McGahuey (1981) 121 Cal.App.3d 524, 528-529 [after completing burglary, fleeing burglar threw hatchet through window at victim as victim telephoned police; stay of sentence for assault not appropriate under  654 because assault was motivated by new objective, escape]; People v. Vidaurri (1980) 103 Cal.App.3d 450, 463-464, 465-466 [after completing burglary, fleeing burglar assaulted security guards in parking lot; stay of sentences for assaults not called for].)

In light of these precedents, we do not see a sufficient evidentiary basis for the courts implicit finding of separate objectives here. Servin broke into E.G.s home, entered her room, and woke her up by committing a sexual battery. Then he committed false imprisonment by threatening to kill her if she failed to cooperate. Next, he got in E.G.s bed and tried to continue to commit sex offenses against her. She rebuffed him. They talked. After he had been in the room for 30 to 45 minutes, she told him to leave. He left. There is little doubt that the objective of the burglary was to commit sex offenses against the woman inside and that the original purpose of the false imprisonment also was to commit sex offenses against her. The People argue that, after Servin decided to desist from committing sex offenses against E.G., but before he left, the purpose of the false imprisonment evolved into that of preventing E.G. from fleeing or going for help while he continued to talk to her. We do not think, however, that Servins decision to stop committing sex crimes while not yet leaving the house can be seen as giving rise to a new objective for the false imprisonment. He simply abandoned his original objective and then, sometime later, left.

The People cite People v. Saffle (1992) 4 Cal.App.4th 434, in which the defendant, holding a knife, and having sexually assaulted the victim, forbade her to answer a knock at the door, which he believed to be the police. (Id. at p. 437.) This court held that section 654 did not bar separate punishments for false imprisonment and the sex offenses. Here, once the sexual offenses were completed, Saffles objective changed, we stated. He was no longer interested in fulfilling a sexual objective; he was seeking to prevent [the victim] from reporting the incident. (Id. at p. 440.) This holding does not support the imposition of separate sentences for burglary and false imprisonment in the present case. Here the false imprisonment arose from the intent to commit sex offenses, and, unlike Saffle, Servin did not commit an additional act to effectuate the false imprisonment after he had completed a sex offense and desisted from committing additional sex offenses.

We will modify the judgment to stay the eight-month sentence imposed for count 18. In light of this, it is unnecessary to address Servins argument that the court contravened Blakely and Cunningham by failing to order a stay under section 654 in the absence of jury findings or admissions by the defendant that would establish multiple objectives.

IV. Cruel and/or unusual punishment

Servin argues that his sentence violates the prohibitions on cruel and unusual punishments in the federal Constitution (U.S. Const., 8th Amend.) and [c]ruel or unusual punishment in the California Constitution (Cal. Const., art. I,  17). He says it is obvious that the sentence is grossly disproportionate to [his] crimes and personal circumstances . We disagree.

Under the California Constitution, punishment is cruel or unusual if, although not cruel or unusual in its method, it nevertheless is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity. (In re Lynch (1972) 8 Cal.3d 410, 424, fn. omitted.) The cruel-and-unusual-punishment clause of the Eight Amendment of the federal Constitution also includes a narrow proportionality principle that applies to noncapital sentences. (Ewing v. California (2003) 538 U.S. 11, 20.) A determination of whether a punishment is cruel or unusual because of disproportionality may be made based on an examination of the nature of the offense and the offender, with particular regard to the degree of danger both present to society. (In re Lynch, supra, 8 Cal.3d at p. 425; see also People v. Weddle (1991) 1 Cal.App.4th 1190, 1196.) With respect to the offense, we consider the totality of the circumstances in the case at bar . (People v. Dillon (1983) 34 Cal.3d 441, 479.) With respect to the offender, we consider his individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind. (Ibid.) A proportionality analysis can also take account of punishments imposed for similar or greater crimes in other cases in California and other jurisdictions. (People v. Ruiz (1996) 44 Cal.App.4th 1653, 1661.)

Servin first argues that section 667.61, the so-called One Strike law, under which the court imposed the mandatory terms of 25 years to life for counts two and nine, is unconstitutional on its face because it does not recognize significant gradations of culpability depending on the severity of the current offense and it fails to take mitigating factors into consideration. As Servin acknowledges, essentially the same argument has been rejected by Court of Appeal panels in People v. Alvarado (2001) 87 Cal.App.4th 178, 200-201 and People v. Estrada (1997) 57 Cal.App.4th 1270, 1280. We agree with the reasoning of those cases, which is, in brief, that section 667.61 does not indiscriminately mete out the same punishment to a broadly defined class of offenses; rather, it singles out crimes of sexual violence, and sex crimes against children, committed under specifically enumerated circumstances, such as occurring in the course of a first degree burglary. (People v. Estrada, supra, at p. 1280.) The statute expresses the Legislatures zero tolerance toward the commission of sexual offenses against particularly vulnerable victims. (People v. Alvarado, supra, 87 Cal.App.4th at pp. 200-201.)

Next, Servin argues that his sentence of 106 years two months to life was grossly disproportionate because there were mitigating circumstances and there are more serious crimes that can result in shorter sentences. As mitigating circumstances, he mentions that his prior criminal record was minor; he partially admitted guilt and expressed remorse in his police interview and apology letter; the victims were not physically wounded; his mother died when he was five years old; he had only a fourth-grade education; he is married; he has young children; and he had been steadily employed as a dairy worker since 2002. He points out that a first degree murderer can be sentenced to 25 years to life, a second degree murderer can be sentenced to 15 years to life ( 190, subd. (a)), and the upper term for continuous child molestation is 16 years ( 288.5).

These considerations do not show the 106-years-to-life sentence to be grossly disproportionate to the 19 offenses Servin committed. Servin is a violent serial home-invasion sex offender whose crime spree included breaking into a mothers home in the middle of the night, threatening her with death and raping her repeatedly at knifepoint while her child lay nearby. Though no other crime is as serious as murder, it is far from obvious that one who commits a single murder is more dangerous than one who burglarizes five homes (counts one, eight, 14, 15 and 16) and commits six violent sex offenses inside them (counts two, three, four, five, nine and 10), and who was preparing to invade a sixth home when he was caught.

Servins contrition at the police station is no indication of a lack of future dangerousness, for he also expressed contrition to his victims even as his spree continued. At trial, he denied responsibility. The other mitigating circumstances Servin discusses do not show that the sentence was grossly disproportionate. Separating Servin permanently from society is not cruel or unusual.

DISPOSITION

The judgment is modified to stay, pursuant to section 654, the sentence for count 18, false imprisonment of E.G. on May 10, 2005. As modified, the judgment is affirmed. The trial court shall modify the abstract of judgment and forward it to the appropriate authorities.

_____________________

Wiseman, Acting P.J.

WE CONCUR:

_____________________

Levy, J.

_____________________

Hill, J.

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^[1]Subsequent statutory references are to the Penal Code.

^[2]It follows that, even if the question currently under review by the United States Supreme Court in State v. Ice (Or. 2007) 170 P.3d 1049, certiorari granted under the name of Oregon v. Ice (2008) ___ U.S. ___ (128 S.Ct. 1657), is answered in the affirmative, Blakely and Cunningham will have no application to consecutive sentences imposed under section 669. The question in Ice is limited to [w]hether the Sixth Amendment, as construed in Apprendi v. New Jersey [(2000) 530 U.S. 466], and [Blakely], requires that facts (other than prior convictions) necessary to imposing consecutive sentences be found by the jury or admitted by the defendant. (Oregon v. Ice, supra, ___ U.S. ___ [128 S.Ct. 1657].) According to the California Supreme Court, California law does not deem any facts beyond those supporting the convictions to be necessary to imposing consecutive sentences, so the constitutional question of who must find them does not arise.