P. v. Zepeda

Filed 11/1/07 P. v. Zepeda 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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)

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Defendant Cecelia Antionette Zepeda entered a negotiated plea of guilty to dissuading a witness by force or threat (Pen. Code,  136.1, subd. (c)(1)‑‑count 6)^[1]and being an accessory after the fact ( 32‑‑count 7), and was sentenced to an aggregate term of four years eight months in state prison, consisting of the upper term of four years on count 6, and a consecutive eight months (one-third the middle term) on count 7.

On appeal, defendant claims (1) the trial court erred in refusing to stay her sentence on count 7 under section 654; (2) imposition of the upper term on count 6 violates the Sixth Amendment under Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham); and (3) the trial court erred in imposing the upper term by relying in part on two facts that are elements of one of the offenses to which she pleaded guilty.^[2] We shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND^[3]

Defendants brother was a suspect in two shootings that left a father paralyzed and his 17-year-old son dead. A few days after the shootings, defendant drove her brother from California to her home in Oregon, where he lived for the next year or so. Defendant was not cooperative or forthright during the investigative process and threatened witnesses and their families . . . if they provided information to law enforcement about the shootings.

DISCUSSION

I

At the sentencing hearing, defendant argued her sentence on count 7 (being an accessory after the fact) must be stayed pursuant to section 654 because the facts in this case are interrelated. As far as the dissuading [a witness by force or threat] and the accessory after a fact, you cant segregate them out. The People disagreed, explaining that the accessory after the fact offense constitutes a whole course of conduct and not threats. That course of conduct involves removing [herself] and her brother, the suspect, from California to Oregon, and also then lying to the police. The trial court agreed and denied defendants request to stay her sentence, explaining that the accessory after the fact offense is a whole course of conduct, not just threats that are encompassed in the dissuading a witness offense.

On appeal, defendant argues the trial court erred in refusing to stay her sentence on count 7 (being an accessory after the fact) because it arose out of the same course of conduct as the dissuading a witness offense and was guided by the same intent and objective‑‑help[ing] her brother . . . escape justice. We disagree.

Section 654, subdivision (a) provides in relevant part that [a]n 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.

Although section 654, subdivision (a) literally proscribes only multiple punishment for multiple convictions arising from a single act or omission, it has been extended to a course of criminal conduct wherein multiple violations are incident to an accuseds single criminal objective. (People v. Beamon (1973) 8 Cal.3d 625, 638.) However, a course of conduct divisible in time, although directed to one objective, may give rise to multiple violations and punishment. (Id. at p. 639, fn. 11, italics added.) Thus, a finding that multiple offenses were aimed at one intent and objective does not necessarily mean that they constituted one indivisible course of conduct for purposes of section 654. (People v. Kwok (1998) 63 Cal.App.4th 1236, 1253.) This is particularly so where the offenses are temporally separated in such a way as to afford the defendant opportunity to reflect and to renew his or her intent before committing the next one, thereby aggravating the violation of public security or policy already undertaken. (People v. Gaio (2000) 81 Cal.App.4th 919, 935.)

Whether the crimes constitute an indivisible course of conduct is a question of fact for the trial court, and its findings will not be disturbed on appeal if they are supported by substantial evidence. (People v. Osband (1996) 13 Cal.4th 622, 730-731.)

Here, there is substantial evidence to support a finding that defendants course of conduct was divisible in time. Indeed, defendant does not dispute . . . that she both threatened witnesses and helped her brother move to Oregon or that she may have had time to reflect. Because the record reflects, and defendant concedes, that the acts that constituted the offenses of dissuading a witness and being an accessory after the fact were separated by periods of time in which reflection was possible, the court did not err in failing to stay defendants sentence on count 7 (being an accessory after the fact) pursuant to section 654. (People v. Gaio, supra, 81 Cal.App.4th at p. 935; People v. Kwok, supra, 63 Cal.App.4th at p. 1253.)

II

Defendant claims the trial courts decision to impose the upper term for count 6 violated [her] Sixth Amendment right to a trial by jury because it was based on factual determinations that [the court] itself made by a preponderance of the evidence rather than those that a jury made beyond a reasonable doubt. We disagree.

The United States Supreme Court held in Cunningham, supra, 549 U.S. at page ___ [166 L.Ed.2d at p. 873] that under Californias determinate sentencing law, the middle term is the statutory maximum which a judge may impose solely based on the facts reflected in the jury verdict or admitted by the defendant. Thus, except for a prior conviction, any fact that increases the penalty for a crime beyond the middle term must be tried to the jury and proved beyond a reasonable doubt. (Cunningham, at p. ___ [166 L.Ed.2d at p. 873], overruling People v. Black (2005) 35 Cal.4th 1238 (Black I) on this point, vacated sub nom.Black v. California (2007) 549 U.S. ___ [167 L.Ed.2d 36].)

Applying Cunningham, in People v. Black (2007) 41 Cal.4th 799, 816 (Black II), our Supreme Court recently held that imposition of the upper term does not infringe upon the defendants constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendants record of prior convictions.

As a preliminary matter, we reject the Peoples assertion that defendant forfeited the issue because she did not raise it in the trial court. Defendant was sentenced on October 5, 2006. Before that, on June 20, 2005, our Supreme Court had decided Black I, which held that a defendant does not have a right to have a jury determine aggravating factors used to impose the upper term. (35 Cal.4th at p. 1244.) Black I was controlling law at the time of defendants sentencing. Defendant was not required to make a futile objection. It is pointless to require a defendant to ask a trial court to overrule a decision of the California Supreme Court. (Moradi-Shalal v. Firemans Fund Ins. Companies (1988) 46 Cal.3d 287, 292, fn. 1.)

Turning to the merits, in deciding to impose the upper term on count 6 (dissuading a witness), the trial court cited the following [c]ircumstances in aggravation as proven by a preponderance of the evidence: threat of great bodily harm, threatened witnesses who might cooperate with law enforcement, a course of planning and prior planning that indicates criminal sophistication, and [defendant] was on probation at the time of these offenses.

As noted above, the right to a jury trial does not apply to the fact of a prior conviction. (Black II, supra, 41 Cal.4th at p. 818.) A defendants probationary status falls within the prior conviction exception. (Cf. United States v. Corchado (10th Cir. 2005) 427 F.3d 815, 820; United States v. Fagans (2d Cir. 2005) 406 F.3d 138, 141-142.) Indeed, in Black II, the court rejected the defendants contention that a jury must determine whether [his prior convictions] are numerous or increasingly serious (41 Cal.4th at p. 819), explaining that such a determination require[s] consideration of only the number, dates, and offenses of the prior convictions alleged, which is quite different from the resolution of issues submitted to a jury, and is one more typically and appropriately undertaken by a court (id. at p. 820). A similar undertaking is required to ascertain a defendants probationary status. Moreover, defendant was not entitled to have her probationary status proved beyond a reasonable doubt. (Ibid., fn. 9.) Accordingly, the trial courts reliance on defendants probationary status did not run afoul of the Sixth Amendment.

The trial courts reliance on additional factors is of no consequence. A defendants constitutional right to a jury trial is not violated by the trial courts imposition of the upper term sentence where at least one aggravating factor was established by means that satisfy the requirements of the Sixth Amendment. (Black II, supra, 41 Cal.4th at pp. 815-816.) Because defendants probationary status renders her eligible for the upper term, she was not legally entitled to the middle term, and [her] Sixth Amendment right to [a] jury trial was not violated by imposition of the upper term sentence on count 6 (dissuading a witness). (Black II, at p. 820.)^[4]

DISPOSITION

The judgment is affirmed.

BUTZ , J.

We concur:

SIMS , Acting P.J.

HULL, J.

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

^[2] This court previously determined defendant did not need a certificate of probable cause to raise the section 654 and Cunningham issues on appeal. (See Jan. 25, 2007 order denying application to seek belated certificate of probable cause in trial court.)

^[3] The facts are taken from the probation report, which defendant stipulated could be used to establish the factual basis for her plea.

^[4] Because we conclude defendants probationary status rendered her eligible for the upper term, we need not address her additional contention that the trial court erred in imposing the upper term by relying in part on two facts (other than her probationary status) that are elements of one of the offenses to which she pleaded guilty.