P. v. Patton

Filed 2/10/05 P. v. Patton CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
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ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
RICHARD NELSON PATTON,
Defendant and Appellant.
H027044
(Santa Clara County
Super. Ct. No. CC262233)
Appellant pleaded no contest to two counts of committing a lewd or lascivious act
on a child by force, violence, menace or fear (Pen. Code, § 288, subd. (b)(1), counts one
and two) and two counts of committing a lewd or lascivious act on a child under the age
of 14 (Pen. Code, § 288, subd. (a), counts three and four).1 In addition, appellant
admitted that as to counts two and four the victim was under the age of 14 and that he had
substantial sexual contact with the victim within the meaning of Penal Code section
1203.066, subdivision (a)(8).
On October 8, 2003, the court sentenced appellant to a total term of 17 years
consisting of the upper term of eight years for count one; a consecutive lower term of
1 It appears that appellant entered an open plea recognizing that the maximum
sentence would be 26 years in state prison and the minimum would be six years.

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three years for count two; a consecutive mid-term of six years for count three and a
concurrent mid-term of six years for count four.
On March 23, 2004, we granted appellant relief from default for failure to file a
timely notice of appeal. Appellant filed a notice of appeal on March 26, 2004.
On appeal, appellant raises one issue. He contends that the trial court's decision to
sentence him to the upper term on count one and to a consecutive term for count three
"violates the Supreme Court's recent decision in Blakely v. Washington because the trial
court relied on sentencing factors not necessarily admitted by [his] nolo contendere plea."
Factual Background 2
Appellant began molesting his daughter, Jane Doe, when she was in the fourth
grade. Appellant made Jane take off her clothes and get on top of him because he was
going to teach her about sex. Appellant was naked. He put his hands on Jane's buttocks
to move her on his body and told her to continue doing it until it felt good. Jane did not
remember if appellant's penis was erect on any of these of occasions.
In early September 2001, Jane's mother was in New Jersey. Appellant was "really
drunk" and told Jane that if she did not have sex with him or hold his penis, he would
commit suicide by hanging himself with a noose that was set up in the garage. Jane
refused to have sex with her father. Appellant walked towards the garage and locked
himself inside. Jane screamed and told appellant that she was going to wake her brother,
who was sleeping in the house. When the door opened, Jane saw that appellant had
started to hang himself. Jane " 'lifted' " appellant back onto the ladder. Thereupon,
appellant got down. Appellant took Jane to his bedroom. He took off his clothes and
told Jane to remove her clothes. Jane did not want to take off her clothes, but appellant
threatened to kill himself if she refused. Appellant made Jane hold his penis and squeeze
2 Since appellant entered his plea before a preliminary hearing, the facts are taken
from the probation report.

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it. He touched her vagina and breasts with his hands. Then he got on top of her and
rubbed his penis over her entire body. Appellant touched her vagina with his penis, but
did not penetrate her. This went on all night. Anytime that Jane refused to cooperate,
appellant threatened to kill himself. For that reason Jane felt pressured to do as he said.
A few days after September 11, 2001, appellant apologized to Jane. Then, he took
off his pants and made Jane look at his penis. Appellant told Jane that he wanted her to
feel comfortable. Later, in the living room, appellant told Jane he was going to take his
blood pressure with a blood pressure cuff. He took off his pants again, put the blood
pressure cuff on his arm and made Jane hold his penis. He said that his blood pressure
was low. Then, appellant put the blood pressure cuff on Jane's arm and took her blood
pressure while he touched her bare vagina. He told Jane that her blood pressure was
high.
In July 2002, appellant tried to show Jane how to give herself a breast
examination. Appellant reached under her shirt and began rubbing her breasts.
In sentencing appellant to a total term of 17 years, the court stated that it had
arrived at 17 years as follows: "Count 3 it's the midterm of six years. Count 4, the
midterm of six years concurrent for a total term of six years per 1170.1 of the Penal
Code. Consecutive to that referring to Count 1 the aggravated term of eight years
consecutive to the six. Count 2, three years, the mitigated term consecutive for a total
term of 17 years."
The trial court gave the following reasons for imposing the aggravated term on
count one and a consecutive sentence on count two. As to count one, the court stated that
the "events occurred repeatedly over a period of approximately four years. There are
virtually no mitigators, they were all aggravators in this matter as to Count 1. The victim
was incredibly vulnerable pursuant to [California Rules of Court] rule 4.421A1, this
crime involved acts disclosing a high degree of cruelty and callousness. How a father can
do this repeatedly to his daughter is incredibly callous. [¶] A3, the victim was very

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vulnerable. The child was the daughter of this man. He threatened suicide on several
occasions if she didn't comply, made her under incredible pressure. [¶] A7, other counts
which are consecutive sentences could have been imposed for which concurrent sentence
was imposed. [¶] And clearly, A11, defendant took advantage of a position of trust or
confidence with his daughter."
With respect to the consecutive sentence on count two, the court stated that it was
because the defendant "had the same victim, separate occasions which requires
mandatory full time consecutive sentencing."
Discussion
Appellant contends that the trial court's decision to sentence him to the upper term
on count one and to a consecutive sentence on count three violated his right under
Blakely v. Washington (2004) 542 U.S. ___ [124 S.Ct. 2531] (Blakely) to have his
sentence based only on facts found by the jury.3
Appellant concedes that Penal Code section 667.6, subdivision (d) mandates
consecutive terms for counts one and two. Accordingly, he does not contest that part of
his sentence.
The Attorney General argues that appellant has forfeited his claims of Blakely
error by failing to object at sentencing based on Apprendi v. New Jersey (2000) 530 U.S.
466 (Apprendi).4 In addition, the Attorney General contends that Blakely does not apply
3 From the record, it appears that the trial court imposed sentence on count three and
ordered appellant to serve a consecutive sentence on count one. However, the abstract of
judgment reflects that count one is the principal term and the sentence on count three was
to run consecutive to count one.
4 At issue in Apprendi was an enhancement under New Jersey law that could
potentially double the maximum sentence for firearm possession from 10 to 20 years if a
trial judge found a hate crime by the preponderance of the evidence. (Apprendi, supra,
530 U.S. at pp. 468-469.) The defendant admitted two counts of firearm possession and
another offense under a plea bargain that his maximum sentence could be 20 years for
two counts of firearm possession unless the court found a hate crime, in which case the
maximum would be 30 years. (Id. at p. 470.) The defendant reserved the right to

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to California's determinate sentencing law or the choice between consecutive and
concurrent terms, and that any error is subject to harmless error analysis under Chapman
v. California (1967) 386 U.S. 18. Alternatively, the Attorney General argues that if there
was error, the prosecution should be allowed to seek a jury determination on the
aggravating factors, or re-determination of the entire sentence.
In Blakely, supra, __ U.S. __ [124 S.Ct. 2531], the United States Supreme Court
held that a sentence that exceeded the statutory maximum of the standard range for the
offense based on factual findings that were made by the court, rather than by a jury, or
that were admitted by the defendant, violated the defendant's Sixth Amendment right to
trial by jury. (Id. at p.___ [124 S.Ct. at pp. 2536-2538].)
The defendant in Blakely pleaded guilty to second degree kidnapping involving
domestic violence and the use of a firearm. The facts admitted in his plea, standing
alone, supported a maximum sentence of 53 months under Washington law. (Blakely,
supra, __ U.S. __ [124 S.Ct. at pp. 2534-2535].) Washington law provides that the court
may impose a sentence above the standard range if the court finds substantial and
compelling reasons justifying the exceptional sentence. After hearing the victim's
description of the ordeal, the court imposed a 90-month sentence on the ground that the
defendant had acted with "deliberate cruelty," one of the statutorily enumerated grounds
for departing from the standard sentencing scheme. (Id. at p. ___ [124 S.Ct. at p. 2535].)
Faced with a more than three-year increase in his sentence, the defendant objected.
Thereafter, the trial court conducted a three-day bench trial on the issue of deliberate
cruelty and concluded that there were sufficient facts to support its initial finding.
challenge the constitutionality of the enhancement statute. After an evidentiary hearing
on the enhancement, the court imposed an enhanced term of 12 years on one possession
count with concurrent terms on the remaining counts. (Id. at p. 471.) The United States
Supreme Court explained that historically judges had little discretion to determine a
sentence after a jury verdict, although there was some discretion "in imposing sentence
within statutory limits in the individual case." (Apprendi, supra, 530 U.S. at p. 481.)

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(Blakely, supra, __ U.S. __ [124 S.Ct. at pp. 2535-2536].) The defendant appealed,
arguing that this sentencing procedure deprived him of his federal constitutional right to
have a jury determine beyond a reasonable doubt all facts legally essential to his
sentence.
The United States Supreme Court agreed and reversed. The court applied the rule
of Apprendi, supra, 530 U.S. at page 490, which provides: " 'Other than the fact of a
prior conviction, any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.' "
(Blakely, supra, __ U.S. __ [124 S.Ct. at p. 2536].) The court explained, "[T]he 'statutory
maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on
the basis of the facts reflected in the jury verdict or admitted by the defendant.
[Citations.] In other words, the relevant 'statutory maximum' is not the maximum
sentence a judge may impose after finding additional facts, but the maximum he [or she]
may impose without any additional findings." (Id. at p. ___ [124 S.Ct. at p. 2537].)
Summarizing previous cases on this issue, the court explained that "[w]hether the judge's
authority to impose an enhanced sentence depends on finding a specified fact . . . , one of
several specified facts . . . , or any aggravating fact (as [in Blakely]), it remains the case
that the jury's verdict alone does not authorize the sentence. The judge acquires that
authority only upon finding some additional fact." (Id. at p. ___ [124 S.Ct. at p. 2538],
fn. omitted.) The court concluded that the defendant's sentence was invalid because it
depended on a judicial finding of deliberate cruelty. (Ibid.)
Initially, we note that the issues of whether Blakely precludes a trial court from
making findings on aggravating factors in support of an upper term sentence, and
Blakely's effect on the trial court's decision to sentence consecutively, are currently under
review by the California Supreme Court in People v. Towne, review granted July 14,
2004, S125677 (Towne) and People v. Black, review granted July 28, 2004, S126182

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(Black).5 Pending resolution of these issues by the Supreme Court, we must undertake a
determination of whether Blakely applies under the circumstances presented here. We
begin by addressing the forfeiture/waiver issue.
The Attorney General argues that appellant forfeited his claim of Blakely error by
failing to object on Apprendi grounds at the time of sentencing.
The term "waiver" has been applied both to the intentional relinquishment of a
known right and the forfeiture of a claim by failing to timely assert it. (People v.
Saunders (1993) 5 Cal.4th 580, 590, fn. 6.) " ' "The purpose of the general doctrine of
waiver is to encourage a defendant to bring errors to the attention of the trial court, so that
they may be corrected or avoided and a fair trial had . . . ." ' (People v. Walker (1991) 54
Cal.3d 1013, 1023 . . . .) ' "No procedural principle is more familiar to this Court than
that a constitutional right," or a right of any other sort, "may be forfeited in criminal as
well as civil cases by the failure to make timely assertion of the right before a tribunal
having jurisdiction to determine it." [Citation.]' (United States v. Olano (1993) [507 U.S.
725].)" (Id. at p. 590, fn. omitted.)
In People v. Scott (1994) 9 Cal.4th 331, 351, 353 (Scott), the California Supreme
Court held that a defendant's failure in the trial court to challenge the imposition of an
aggravated sentence based on erroneous or flawed information waived the issue on
appeal. The Scott court reasoned that its waiver rule was necessary to facilitate the
prompt detection and correction of errors in the trial court, thereby reducing the number
of appellate claims and preserving judicial resources.
5 In addition, the court has granted review on a grant and hold basis for Towne or
Black or both in People v. Sykes (2004) 120 Cal.App.4th 1331, review granted Oct. 20,
2004, S127529; People v. Vonner (2004) 121 Cal.App.4th 801, review granted Oct. 20,
2004, S127824; People v. Ochoa (2004) 121 Cal.App.4th 1551, review granted Nov. 17,
2004, S128417; People v. Sample (2004) 122 Cal.App.4th 206, review granted Dec. 1,
2004, S128561; and People v. Lemus (2004) 122 Cal.App.4th 614, review granted Dec. 1,
2004, S128771.

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Consistently, before Blakely, California courts and numerous federal courts held
that there was no right to a jury trial in connection with a court's imposition of
consecutive sentences. (See e.g. People v. Groves (2003) 107 Cal.App.4th 1227, 1230-
1231; U.S. v. Harrison (8th Cir. 2003) 340 F.3d 497, 500; U.S. v. Lafayette (D.C. Cir.
2003) 337 F.3d 1043, 1045-1050; U.S. v. Hernandez (7th Cir. 2003) 330 F.3d 964, 982.)
Similarly, before Apprendi, California courts had expressly rejected the argument
that there was any right to a jury trial on sentence aggravating factors (apart from death
penalty cases under Pen. Code, § 190.3). California has conferred statutory rights to jury
trial on enhancements (Pen. Code, § 1170.1, subd. (e)) and the issue of "whether or not
the defendant has suffered" an alleged prior conviction. (Pen. Code, § 1025, subd. (b); cf.
§ 1158.) However, the California Supreme Court characterized these statutory rights as
"limited" in People v. Wiley (1995) 9 Cal.4th 580, 589 (Wiley). Relying on McMillan v.
Pennsylvania (1986) 477 U.S. 79, 86, Wiley stated that there was no federal or state
constitutional right to a jury determination of "the truth of prior conviction allegations
that relate to sentencing." (Wiley, supra, 9 Cal.4th at p. 586.) Wiley explained: "[T]he
ability of courts to make factual findings in conjunction with the performance of their
sentencing functions never has been questioned. From the earliest days of statehood, trial
courts in California have made factual determinations relating to the nature of the crime
and the defendant's background in arriving at discretionary decisions in the sentencing
process . . . ." (Ibid.)
Accordingly, even if appellant had objected to the imposition of the aggravated
term, it would not have achieved the purpose of the prompt detection and correction or
error in the trial court. "Reviewing courts have traditionally excused parties for failing to
raise an issue at trial where an objection would have been futile or wholly unsupported by
substantive law then in existence. [Citations.]" (People v. Welch (1993) 5 Cal.4th 228,
237-238.)

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Notwithstanding the foregoing, Blakely observed, "nothing prevents a defendant
from waiving his Apprendi rights." (Blakely, supra, 124 S.Ct. at p. 2541.) In this case,
appellant entered an open plea. That is, he pleaded no contest to all charges with the
understanding that his maximum sentence could be as much as 26 years. In so doing,
appellant waived his right to a jury trial. However, since Blakely was decided after
appellant's sentencing hearing, appellant cannot be said to have entered a knowing and
intelligent waiver of his right to a jury trial on the aggravating factors.
Consecutive Sentences
Neither Blakely nor Apprendi purports to create a jury trial right to a determination
as to whether to impose consecutive sentences. Both Blakely and Apprendi involved
convictions for a single count. The imposition of consecutive sentences was not at issue
in Blakely and there is no indication that Blakely was intended to apply to consecutive
sentences. (Blakely, supra, __ U.S. __ [124 S.Ct. at pp. 2534-2536]; Apprendi, supra,
530 U.S. at pp. 476-483, 489, fn. 15, 490.)
Moreover, in Apprendi, Associate Justice John Paul Stevens explained the jury
trial right at issue: "We do not suggest that trial practices cannot change in the course of
centuries and still remain true to the principles that emerged from the Framers' fears 'that
the jury right could be lost not only by gross denial, but by erosion.' [Citation.] But
practice must at least adhere to the basic principles undergirding the requirements of
trying to a jury all facts necessary to constitute a statutory offense, and proving those
facts beyond [a] reasonable doubt." (Apprendi, supra, 530 U.S. at pp. 483-484, fn.
omitted.) The consecutive sentencing decision does not involve the facts "necessary to
constitute a statutory offense." (Id. at p. 483.) In fact, the consecutive sentencing
decision can only be made once the accused has been found beyond a reasonable doubt to
have committed two or more offenses. This fully complies with the Sixth Amendment
jury trial and Fourteenth Amendment due process clause rights. While those facts that
affect the appropriate sentence within the range of potential terms of incarceration for

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each offense are subject to Blakely and Apprendi, numerous courts have held that
Apprendi does not apply to the decision to impose consecutive sentences. (United States
v. Harrison, supra, 340 F.3d 497, 500; United States v. Lafayette, supra, 337 F.3d 1043,
1049-1050; United States v. Davis (11th Cir. 2003) 329 F.3d 1250, 1254; United States v.
Lott (10th Cir. 2002) 310 F.3d 1231, 1242-1243; United States v. White (2d Cir. 2001)
240 F.3d 127, 136; People v. Groves, supra, 107 Cal.App.4th at pp. 1230-1231.)
The Upper Term Sentence
Under California's determinate sentencing law, "[w]hen a judgment of
imprisonment is to be imposed and the statute specifies three possible terms, the court
shall order imposition of the middle term, unless there are circumstances in aggravation
or mitigation of the crime. . . ." (Pen. Code, § 1170, subd. (b).)
The Blakely court explained that when a judge's authority to impose a particular
sentence depends on the finding of one or more additional facts, "it remains the case that
the jury's verdict alone does not authorize the sentence. The judge acquires that authority
only upon finding some additional fact." (Blakely, supra, 124 S.Ct. at p. 2538.) This
does not comport with constitutional principles. (Id. at p. 2539.) In California, the
middle term is the maximum penalty that a court may impose without making additional
findings of fact. Thus, this is "the maximum sentence a judge may impose solely on the
basis of the facts reflected in the jury verdict or admitted by the defendant." (Blakely,
supra, ___ U.S. at p. ___ [124 S.Ct. at p. 2537], italics omitted.)
A violation of Penal Code section 288, subdivision (a) is punishable by three, six
or eight years in state prison. Thus, the trial court could have chosen either count three or
count four as the principal term and imposed six years. In addition, a violation of Penal
Code section 288, subdivision (b) is punishable by three, six or eight years in state prison.
Counts one and two were both violations of Penal Code section 288, subdivision (b), but,
pursuant to Penal Code section 667.6 subdivision (d), full term consecutive sentences
were mandatory on counts one and two.

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The aggregate term of imprisonment for all convictions "shall be the sum of the
principal term, the subordinate term, and any additional term imposed for applicable
enhancements . . . ." (Pen. Code, § 1170.1, subd. (a).) The crimes charged in counts one
and two (Pen. Code, § 288, subd. (b)) are violent sex crimes committed on different
occasions against the same victim and are governed by Penal Code section 667.6,
subdivision (d). Since they are governed by Penal Code section 667.6, subdivision (d),
they may not be used as components of a term calculated under section 1170.1, either as a
principal term or as a subordinate term. (People v. Pelayo (1999) 69 Cal.App.4th 115,
125.) As noted above, the court imposed sentence on count three (the principal term) and
was required to run counts one and two as full, separate, and consecutive terms pursuant
to Penal Code section 667.6, subdivision (d).
Appellant, ignoring the sentence imposed orally by the judge, implicitly has
argued that the court chose the sentence on count one, a violation of Penal Code section
288, subdivision (b), as the principal term and ran the sentence on count three, a violation
of Penal Code section 288, subdivision (a), consecutively. In fact, the abstract of
judgment reflects such a state of affairs. Ordinarily we would be able to correct the
abstract of judgment on our own motion to reflect that count three is the principal term
and counts one and two are to run consecutively. However, at sentencing, the court
aggravated count one and mitigated count two. A defendant subject to Penal Code
section 667.6, subdivision (d) must be sentenced in a manner that does not dilute the
impact of full, consecutive terms of imprisonment. (People v. Pelayo, supra, 69
Cal.App.4th at p. 125.) The court was required under section 667.6, subdivision (d) to
impose full term consecutive sentences. Thus, even if we were to correct the abstract of
judgment to reflect the sentence as pronounced orally, appellant's sentence would be an
unauthorized sentence. Although we may correct an unauthorized sentence at any time
(People v. Dotson (1997) 16 Cal.4th 547, 554, fn. 6), because the trial court found some

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mitigating factors in this case, we feel compelled to return the matter to the lower court
for resentencing.
On resentencing, the trial court should calculate the appropriate terms for counts
three and four under section 1170.1, making the necessary discretionary choices
concerning the length of the principal term (keeping Blakely in mind) and consecutive
versus concurrent sentences. The terms selected should be added to the full term,
consecutive sentences imposed for counts one and two.
Disposition
The matter is remanded to the trial court for resentencing. In all other respects, the
judgment is affirmed.
______________________________
ELIA, J.
WE CONCUR:
_____________________________
RUSHING, P. J.
_____________________________
PREMO, J.

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