P. v. Ramirez

Filed 5/26/05 P. v. Ramirez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
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.
JOSEPH JAMES RAMIREZ,
Defendant and Appellant.
H027409
(Santa Clara County
Super. Ct. No. CC108884)
A jury convicted appellant Joseph Ramirez of two counts of lewd act on a child by
force (Pen. Code, § 288 subd. (b), counts one and two); sexual battery by unlawful
restraint (Pen. Code, §§ 242/243.4 subd. (a), count five); and sexual penetration by force
(Pen. Code, § 289, subd. (a)(1), count six). As to counts one, two and six, the jury found
true an allegation that appellant committed an offense specified in Penal Code section
667.61, subdivision (c) against more than one victim. 1 (See case number H024606.)
Appellant appealed his conviction and his initial sentence of 45 years to life in
state prison. In an unpublished opinion, (H024606 filed January 6, 2004), we reversed
appellant's conviction on count six, reduced the conviction on count five to a
misdemeanor and remanded the case to the trial court for resentencing.
1 We have taken judicial notice of the record in case number H024606.

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On April 8, 2004, the trial court resentenced appellant to a total term of 16 years in
state prison on counts one and two, consisting of the upper term of eight years on count
one and a full, consecutive term of eight years on count two. In addition, the court
imposed a concurrent county jail term of six months on count five and a $200 restitution
fine. The court granted custody credits of 449 days consisting of 391 actual days and 58
days of Penal Code section 4019 conduct credits.
Appellant filed a timely notice of appeal on April 28, 2004.
In this appeal after resentencing, appellant contends that the trial court's imposition
of full, separate, and consecutive terms for counts one and two violates Blakely v.
Washington (2004) 542 U.S. — [124 S.Ct. 2531] (Blakely). In addition, appellant
contends that the trial court erred by failing to recalculate and update his custody credits
to the date of resentencing. The Attorney General concedes that appellant is entitled to
have his custody credits recalculated. We find sentencing error in this case for the
reasons outlined in this opinion and remand to the trial court for resentencing.
Briefly, we recite the facts of this case as they pertain to this appeal.
Facts
Counts One and Two
During 2000 and part of 2001, 13-year-old Francis lived in San Jose with her older
sister, her brothers and her aunt Jenny. In addition, Jenny's daughter Candy, a
granddaughter Pamela, and appellant, lived in the house. The house had four bedrooms.
Francis and her sister shared a room and slept in bunk beds. Appellant had the bedroom
next to theirs.
Francis testified to an incident that occurred when she and her older sister were
alone with appellant in the house. Her sister was in the bathroom cleaning her shoes
when appellant called Francis into his bedroom and told her to lie on the bed. Appellant
was already on the bed, lying on his right side. He was wearing his clothes. Francis lay
on her right side in front of appellant. Appellant "scooted" her closer to him with his left

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hand, placed his right had over her mouth and told her not to say anything. Appellant's
erect penis touched her "butt" through the outside of her clothes. The touching stopped
when the doorbell rang and Francis got up to answer the door.
On another day, appellant called Francis into the bedroom again. This time, lying
on his right side he used his left hand to put a blanket over her month, told her not to say
anything, and then put his right arm over her waist and began pulling her closer to him.
Francis felt appellant start to do the same things as he had done on the previous occasion.
Then, he touched her "private parts" with his hand. Appellant's fingers touched Francis's
back and stomach as he tried to go under the front of her pants.
Discussion
Full Term Consecutive Sentences
In sentencing appellant to the eight years on count one and the consecutive eight
years on count two, the trial court stated that it was "using the upper term since the
factors in aggravation outweigh those in mitigation."
In a supplemental probation report, the probation officer made the following
recommendation. "As the defendant committed Multiple Violent Sexual Acts, which also
occurred on separate occasions, a full, separate and consecutive terms [sic] shall be
imposed as to each remaining count, pursuant to Section 667.6 (d) of the Penal Code. As
the defendant's actions involved violent conduct, which indicates a serious danger to
society, it is respectfully recommended the defendant serve an aggravated term of 16
years in the California Department of Corrections."
The probation report notes three factors in aggravation: First, "[t]he crime
involved great violence, great bodily harm, threat of great bodily harm, or other acts
disclosing a high degree of cruelty, viciousness, or callousness." Second, [t]he defendant
took advantage of a position of trust or confidence to commit the offense." Finally, "[t]he
defendant has engaged in violent conduct, which indicates a serious danger to society."
The one factor in mitigation is noted as "[t]he defendant has no prior record, or an

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insignificant record of criminal conduct, considering the recency and frequency of prior
crimes."
Appellant filed a Statement in Mitigation in which he asked the court to grant him
probation or impose the lower term for one violation of Penal Code section 288,
subdivision (b) and run the remaining counts concurrently.
At the resentencing hearing, the prosecutor agreed with the probation officer's
recommendation that the court impose upper terms on counts one and two. Defense
counsel argued that the probation officer had used faulty logic in recommending the
upper term. He pointed out that appellant did not have a prior criminal record.
In reply, the trial court noted that the "probation officer indicates that the
defendant committed multiple violent sexual acts, namely the two counts. This also
occurred on separate occasions. And the probation officer, therefore, is recommending
the upper term since the defendant's actions involve violent conduct which indicated a
serious danger to society."
Defense counsel argued that the probation officer's recommendation was based on
the "illegal dual use of facts." In addition, counsel argued that the court should impose
the lower term because defendant did not have a prior criminal conviction. Further,
counsel urged the court to consider that the "crimes could be viewed as committed so
closely in time and place as to indicate a single period of aberrant behavior."
The court sentenced defendant, stating: "In this matter, it is ordered that probation
be denied in view of the nature and circumstances of the case. [¶] As to Counts 1 and 2,
it is the judgment of the Court that the defendant be committed to the State Department of
Corrections as to Count 1 for the upper term of eight years; and as to Count 2, for the
upper term of eight years. [¶] Those terms to run consecutively to the sentence in --
Count 2 to run consecutive to the sentence imposed as to Count 1. [¶] The Court is using
the upper term since the factors in aggravation outweigh those in mitigation."

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Relying on Blakely, supra, 542 U.S. — [124 S.Ct. 2531], defendant argues that the
court erred by imposing full, separate and consecutive terms as to counts one and two and
by electing to impose the upper term because the factual determination necessary to make
such section applicable to his sentence was not tried to, and found true by a jury.
The Attorney General counters that defendant has forfeited his claims by failing to
object below, Blakely does not apply to consecutive sentencing, and any error in
sentencing defendant to aggravated terms was harmless beyond a reasonable doubt.
Initially, we note that the effect of Blakely on California's Determinate Sentencing
Law is pending before our Supreme Court. 2 Pending resolution of these issues by the
Supreme Court, we will undertake a determination of whether Blakely applies under the
circumstances presented here. We begin by addressing the forfeiture/waiver issue.
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
2 The Supreme Court has granted review in two cases involving Blakely issues.
People v. Towne, review granted July 14, 2004, S125677and People v. Black, review
granted July 28, 2004, S126182. In addition, the court has granted review on a grant and
hold basis for Towne or Black or both in several cases including 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; People v. Lemus (2004)
122 Cal.App.4th 614, review granted Dec. 1, 2004, S128771; People v. Jaffee (2004) 122
Cal.App.4th 1559, review granted Jan. 26, 2005, S129344 and People v. Ackerman
(2004) 124 Cal.App.4th 184, review granted Feb. 23, 2005, S130086.

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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, (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. (Id. at p. 353.)
Before Apprendi v. New Jersey (2000) 530 U.S. 466, 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 on 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.)
We note that defense counsel strenuously objected to the imposition of aggravated
terms, arguing that the probation officer's recommendation rested on faulty logic.
Furthermore, defense counsel urged that the court impose concurrent sentences.

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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.) "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.)
Furthermore, since Blakely was decided after defendant's sentencing hearing,
defendant cannot be said to have entered a knowing and intelligent waiver of his right to
a jury trial on the aggravating factors.
Accordingly, we will address defendant's claims on the merits.
Blakely and Apprendi
In Blakely, supra, 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 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, 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. 2535.)

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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.
(Blakely, supra, 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, 124 S.Ct. at p. 2536.) The court explained, "the '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. 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. 2538, fn. omitted.) The court concluded that the defendant's
sentence was invalid because it depended on a judicial finding of deliberate cruelty.
(Ibid.)
Consecutive Sentences for Counts One and Two
Essentially, defendant contends that the maximum sentence that could be imposed
would be the middle term of six years for count one, plus a concurrent term of six years

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for count two. He argues that concurrent terms are the presumptive maximum sentence
in this state.
In this case, it appears that the court sentenced defendant under Penal Code section
667.6, subdivision (d), which mandates consecutive sentences if the court finds that
certain enumerated sex crimes were committed against the same victim on separate
occasions.3 Although the court did not expressly cite to Penal Code section 667.6,
subdivision (d) when imposing sentence, both the prosecution and the Probation Report
stated that the section applied and urged the court to sentence under that code section.
Defendant argues that because the court's finding that counts one and two occurred
on separate occasions operated to increase his sentence beyond the presumptive
maximum sentence, Blakely establishes that he was deprived of his constitutional right to
a jury trial when the court made the determination to sentence him under Penal Code
section 667.6 subdivision (d).
Defendant's argument does not persuade us. 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, 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
3 Relevant to this case, Penal Code section 667.6 subdivision (d) states: "(d) A full,
separate, and consecutive term shall be served for each violation of . . . subdivision (b) of
Section 288, . . . . on the victim or another person if the crimes involve separate victims
or involve the same victim on separate occasions."

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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
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.)
Furthermore, "[w]hile there is a statutory presumption in favor of the middle term
as the sentence for an offense ([Pen. Code] § 1170, subd. (b)), there is no comparable
statutory presumption in favor of concurrent rather than consecutive sentences for
multiple offenses except where consecutive sentencing is statutorily required." (People v.
Reeder (1984) 152 Cal.App.3d 900, 923.)
Moreover, in People v. Groves, supra, 107 Cal.App.4th 1227 (Groves), the trial
court imposed consecutive terms for two counts of forcible oral copulation pursuant to
Penal Code section 667.6, based on its finding that the oral copulations occurred on
separate occasions. (See Cal. Rules of Court, rule 4.425(a)(1).) The defendant argued
that the "imposition of these two consecutive terms without a jury finding that the
offenses occurred on separate occasions violated his federal constitutional rights to a jury
trial and to due process. [Citations.]" (Groves, supra, at p. 1230, fn. omitted.)

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The Groves court held the imposition of consecutive terms under Penal Code
section 667.6 "does not constitute an increase in the maximum possible sentence."
(Groves, supra, at p. 1231.) Therefore, due process did not require that the finding of
separate occasions be made beyond a reasonable doubt, and Apprendi did not require that
a jury rather than the trial court make the finding. (Id. at pp. 1231-1232.)
We see no reason to depart from the holding of Groves in light of Blakely.
Accordingly, we reject defendant's challenge to the imposition of consecutive sentencing
under Penal Code section 667.6, subdivision (d).
The Aggravated Terms
Defendant contends that Blakely applies to the imposition of the upper terms on
counts one and two.
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).)
As noted above, 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, 124 S.Ct. at p. 2537, italics omitted.)
Accordingly, we must determine whether any of the factors the trial court used to
impose the upper terms violates Blakely. To be in harmony with Blakely, the
Constitution requires a jury trial on any fact that "the law makes essential to the

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punishment," other than the fact of a defendant's prior conviction. (Blakely, supra, 124
S.Ct. at p. 2537 and fn. 5, also p. 2540.)
Applying this standard here, we conclude that the trial court could not rely on any
of the cited factors as a basis for imposing the upper term sentences. As noted above,
impliedly the court relied on three factors. These factors are that the crime involved great
violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high
degree of cruelty, viciousness, or callousness; the defendant took advantage of a position
of trust or confidence to commit the offense; and the defendant engaged in violent
conduct, which indicates a serious danger to society. None of these factors were found
by the jury, or admitted by the defendant.
In accordance with the analysis of Blakely, the trial court was required to afford
appellant the right to a jury trial before relying on the cited factors as aggravating factors
supporting the imposition of the upper term. Remand for resentencing is the appropriate
remedy. (Blakely, supra, 124 S.Ct. at p. 2543.)
Custody Credits
When the court sentenced defendant the first time on June 7, 2002, the court
granted custody credits of 449 days, consisting of 391 actual days and 58 conduct days.
At the resentencing hearing on April 28, 2004, the court once again granted custody
credits of 449 days, consisting of 391 actual days and 58 conduct days.
Defendant argues that he was entitled to have his custody credits updated. The
Attorney General concedes the issue. We agree.
Having modified defendant's sentence on remand, the trial court "was obliged, in
its new abstract of judgment, to credit him with all actual days he had spent in custody,
whether in jail or prison, up to that time." (People v. Buckhalter (2001) 26 Cal.4th 20,
37.)
Accordingly, at resentencing, the court should update and credit defendant with
the actual days he has spent in custody since the first sentencing hearing.

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Disposition
The judgment is reversed. The case is remanded to the lower court for the limited
purpose of resentencing in a manner consistent with this opinion; and recalculation of
defendant's custody credits.
_____________________________
ELIA, J.
WE CONCUR:
_____________________________
RUSHING, P. J.
_____________________________
PREMO, J.

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