P.v. Medina

Filed 2/10/09 P.v. Medina CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Butte)

----

In the early morning hours of May 27, 2007, defendant Frank Anthony Medina, Jr., removed the air conditioning unit from the window of his 16-month-old daughters bedroom and entered the home belonging to his estranged spouse. Defendant raped his spouse twice, forcibly penetrated her vagina with a hairbrush and her anus with his finger, and forced her to orally copulate him. After ejaculating, he passed out on the couch. The victim escaped her home with her daughter and the police were contacted. Officers found defendant sleeping in the nude on the couch in the victims home. At the time of the offenses, defendant was on probation, after having been convicted of misdemeanor battery on the same victim, and had been ordered to have no contact with her.

An information charged defendant with two counts of spousal rape (Pen. Code, 262, subd. (a)(1)),[1] two counts of penetration with a foreign object by force and violence (finger and hair brush) ( 289, subd. (a)(1)), and one count of forcible oral copulation ( 288a, subd. (c)(2)). The complaint also charged defendant with disobeying a domestic relations court order, a misdemeanor. ( 273.6, subd. (a).)

In exchange for no state prison at the outset and dismissal of the sexual offenses with a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754 (Harvey), defendant entered a plea of no contest to an added charge of first degree burglary with intent to commit a rape, and that a person, other than an accomplice, was present ( 459). As a condition of probation, defendant was ordered to have no contact with the victim, to stay 400 yards away from her, and not to enter her home.[2]

A petition for violation of probation alleged that defendant violated the domestic violence restraining order on or about March 18, 2008, through March 20, 2008. The probation report reflects that defendant entered the victims home without permission, attempted to take her car, repeatedly telephoned her, and followed her when she left work. In admitting that he violated probation, defendant confirmed that he contacted the victim sometime between March 18 and March 20 in violation of the domestic violence restraining order.

The court denied continued probation and sentenced defendant to state prison for the upper term of six years.

Defendant appeals. He did not obtain a certificate of probable cause. ( 1237.5.)

We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief.

Defendant filed a supplemental brief, contending that the trial courts imposition of the upper term contravened Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856] (Cunningham). He argues the aggravating factor utilized by the trial court, that is, the dismissed charges with a Harveywaiver, must be found by a jury.[3] We reject defendants contention.

Defendant was sentenced on May 7, 2008, after section 1170 was amended to grant the trial court broad discretion to impose any term in the triad, that is, the low term, the midterm, or the upper term, by simply stating the reasons for its sentencing choice. (People v. Sandoval (2007) 41 Cal.4th 825, 850-851.)

In announcing its tentative decision to impose the upper term of six years, the court stated it found circumstances in aggravation outweigh those in mitigation. And aggravation includes basically all of the dismissed charges for which there is a factual basis. The court continued: This is probably one of the most egregious cases of spousal rape. Probably is the most egregious case of spousal rape that I have seen. Penetration by foreign object, a hair brush. He removed an air conditioning system from his daughters bedroom in order to gain access to the house in the face of a restraining order prohibiting him to have contact after a 243(e)(1) had been sustained. And now, in violation of probation, he has been stalking, entering the house, taking things from the house, essentially completely ignoring personal liberty and rights of his wife. The court also found that the crime involved great violence and that the victim was particularly vulnerable. In mitigation, the court noted that defendant had no prior significant record and that the current burglary offense was his first felony conviction.

Defense counsel requested that the court reinstate defendant on probation. Counsel noted that defendant admitted to violating probation based solely on the fact that he contacted the victim. However, counsel objected to a finding of stalking behavior as there had been no hearing on the stalking issue. Defense counsel argued that defendant was otherwise in full compliance with probation conditions. Defense counsel requested the midterm, object[ing] to the Court finding any facts in aggravation that were not found by a jury. Defense counsel suggested the aggravating factors cited by the probation report that were relied upon by the court were elements of the underlying offense, such as the use of a weapon, that is, the hair brush. The court interjected that it was not an element of first degree residential burglary. Defense counsel insisted it was, claiming that the first degree burglary charge was pled as with intent. Defense counsel noted it was defendants first felony conviction and claimed defendant was remorseful, notwithstanding the fact that he indicated that he does not have a personal recollection of the events.

The prosecutor requested that the court deny reinstatement on probation and impose the upper term, claiming the offense represented callousness on the part of the defendant and indicated planning. The prosecutor also noted that defendant took advantage of a position of trust. The prosecutor argued that defendant had a criminal record, and although not lengthy, it did not constitute a factor in mitigation.

After denying reinstatement on probation, the court imposed the upper term of six years, finding in aggravation that the crime did involve great violence, sexual acts, violent sexual acts, forcible; the victim was particularly vulnerable; the crime was premeditated, was callus [sic], and was planned. Defendant had to remove an air conditioning system from a wall in order to gain access to the house. He is aware that he was under restraining order at the time under 243(e)(1) conviction not to have contact with the victim. Notwithstanding that, he took advantage of her and entered the house. The court noted this was defendants first felony conviction.

The trial courts imposition of the upper term complied with the amended version of section 1170 and required no additional fact finding. The court set forth an adequate statement of reasons for its sentencing choice. We find no error.

In any event, the trial courts selection of the upper term did not violate defendants Sixth Amendment rights as discussed in Cunningham. Other than a prior conviction, the facts reflected by a jurys verdict, or those facts admitted by the defendant, any fact that increases the punishment for an offense beyond the statutory maximum, that is, the middle term, must be tried by a jury and proved beyond a reasonable doubt. (Cunningham, supra, 549 U.S.at pp. 274-275, 282-283, 288-289, 293 [166 L.Ed.2d at pp. 864-865, 869-870, 873, 876].) Defendants prior conviction in case No. SCR55029 for battery against the same victim and his violation of probation granted for that offense by breaking into his spouses home with the intent to commit rape were factors cited by the trial court. A single factor in aggravation is sufficient to expose defendant to the upper term. (People v. Black (2007) 41 Cal.4th 799, 813; People v. Osband (1996) 13 Cal.4th 622, 728.) Defendant was eligible for the upper term based on his prior conviction and his poor performance on probation granted for that offense. The fact that the trial court also stated other reasons for the upper term is of no moment. The trial courts imposition of the upper term did not violate defendants Sixth Amendment rights.

Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.

DISPOSITION

The judgment is affirmed.

RAYE , J.

We concur:

NICHOLSON , Acting P. J.

CANTIL-SAKAUYE , J.

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[1] All further statutory references are to the Penal Code.

[2] For the violation of probation in case No. SCR55029, misdemeanor battery against the same victim, the court ordered probation terminated as unsuccessful with credit for time served.

[3] In entering his plea, defendant agreed that the factual basis could be taken from police reports, probation reports, or other sources as deemed necessary. The facts recounted are taken from the probation report.