P. v. Sutton

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Filed 4/12/07 P. v. Sutton CA4/2
Opinion following rehearing
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
MARTEL ANTWONE SUTTON,
Defendant and Appellant.
E038982
(Super.Ct.No. FSB 037526)
OPINION
APPEAL from the Superior Court of San Bernardino County. Arthur Harrison,
Judge. Affirmed with directions.
Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant
and Appellant.
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson,
Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General,
Ronald A. Jakob and Jennifer A. Jadovitz, Deputy Attorneys General, for Plaintiff and
Respondent.

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Defendant Martel Antwone Sutton broke into Jane Doe’s home (the victim) and
hit her repeatedly with a frying pan when she discovered him in her home in the middle
of the night. Defendant then robbed and raped the victim in her home. When done
raping the victim, defendant noticed a shed in the victim’s backyard, locked her in the
shed, and drove off in the victim’s car.
Defendant appeals from judgment entered following jury convictions for first
degree burglary (count 1; Pen. Code, § 459)1; assault with a deadly weapon (count 2; §
245, subd. (a)(1)); forcible oral copulation (count 3; § 288A, subd. (c)(2)); forcible rape
(count 4; § 261, subd. (a)(2)); false imprisonment (count 6; § 236); kidnapping (count 7;
§ 207, subd. (a)); robbery (count 8; § 211); and unlawful taking of a vehicle (count 9;
Veh. Code, § 10851, subd. (a)). The jury acquitted defendant of count 5, attempted
forcible sodomy (§§ 286, subd. (c)(2), 664). As to counts 1, 2, 3, 4, 6, 8, and 9, the jury
found true that defendant used a deadly weapon (i.e., a frying pan) and found true as to
all convicted offenses that defendant personally inflicted great bodily injury (GBI). (§§
12022, subd. (b)(1), 12022.7, subd. (a), and 12022.8.) The court sentenced defendant to
an aggregate indeterminate prison term of 22 years 4 months plus a consecutive term of
25 years to life.
Defendant contends his conviction for false imprisonment should be reversed
because false imprisonment is a lesser included offense of kidnapping, and his conviction
for assault with a deadly weapon (count 2) should be reversed because it is a lesser
1 Unless otherwise noted, all statutory references are to the Penal Code.

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included offense of robbery. Defendant also contends the trial court erred in imposing
the weapon use enhancement as to count 2 because weapon use is an element of count 2;
imposing the GBI enhancement on the rape offense because the GBI factor was used in
imposing the one-strike law; failing to stay the GBI enhancement imposed on count 3
(forcible oral copulation) because the GBI enhancement was imposed on count 4 (rape);
sentencing defendant for kidnapping and robbery in violation of section 654, the multiple
punishment bar; and imposing upper terms and consecutive sentences in violation of
Blakely v. Washington (2004) 542 U.S. 296 (Blakely).
We agree, as do the People, that the trial court erred in imposing the weapon use
enhancement as to count 2 (assault with a deadly weapon) and the GBI enhancement as
to count 4 (rape), and accordingly, direct the trial court to strike these enhancements. The
trial court also erred in imposing upper terms on counts 1, 3 and 7, based on factors
requiring a jury trial under Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct.
856] (Cunningham). Defendant’s sentence is thus reversed and the matter is remanded
for resentencing as to counts 1, 3 and 7. In all other regards, we reject defendant’s
contentions and affirm the judgment.
1. Factual Background
On December 27, 2002, at 2:00 a.m., defendant turned off the victim’s electrical
power at her residence and entered her home through a window. According to
defendant’s recorded statement given to the police, he intended to take the victim’s
money and car. The victim was awakened by a noise and walked to the kitchen to get a
flashlight because her bedroom light was not working. While in the kitchen, she saw

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defendant and screamed. Defendant hit her on the head with a frying pan two or three
times, causing her to become dizzy. Defendant said he wanted her keys and money. The
victim gave defendant her keys and went to the dining room to look for her money.
Defendant told her, “Get your money, or I’ll hit you again.” The victim gave defendant
her wallet. Defendant took the money out of the victim’s wallet. According to
defendant’s recorded statement, he had dumped everything out of the victim’s purse
before the victim woke up.
Also, according to defendant’s recorded statement, defendant decided to rape the
victim after he hit her with the pan and took her to the back bedroom. After taking the
victim’s money, he said, “What about the room in the back?” Defendant and the victim
walked to the back room. On the way, defendant ripped the phone off the wall and told
the victim to take off her clothes and lay down. She did what defendant told her to
because she was afraid. The victim lay on the bed in the back bedroom. Defendant hit
her several times in the head and face with the pan.
As defendant began pulling off the victim’s nightgown and panties, she felt as if
she would pass out. She resisted defendant’s attempts to pull her legs apart and asked
why defendant kept hitting her. Defendant replied, “You won’t hold still.” The victim
then passed out. Defendant admitted during his statement to the police that he raped the
victim.
When the victim regained consciousness, she was lying on the floor and defendant
was behind her. He told her to sit up and forced her up. He put his penis in her mouth
and said, “Is that the best you can do?,” and threw the victim’s nightgown to her. After

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she put it on, defendant and the victim walked down the hall. As they walked, defendant
asked the victim, “What is that little house in the back?” She said it was her shed.
Defendant said he was going to put her in it and he walked her out to the shed. He then
locked her inside the shed and left.
According to defendant’s recorded statement, defendant began to drive away and
then realized he had dropped his wallet and went back to the victim’s house to retrieve it.
After he returned, he brought the victim a glass of water. In response to the victim asking
when she could call for help, he said at “2:00” and locked her in the shed again. About
10 minutes later the victim heard defendant drive away in her car.
The victim called out for assistance and pounded on the shed. Finally, the police
arrived around 7:00 a.m. and released the victim from the shed. She told the police
someone had raped her and had stolen her keys and money.
The victim sustained injuries to her face, including bruising, loose teeth, and facial
fractures requiring her jaw to be wired closed for about two months. She also sustained
trauma to her vagina, including extensive bleeding.
The next day defendant was arrested while in possession of the victim’s car. After
waiving his Miranda rights, defendant admitted to the charged offenses, with the
exception of sodomy.
2. Convictions for Kidnapping and False Imprisonment
Defendant argues that defendant’s conviction for false imprisonment, count 6,
must be reversed because it is a lesser-included offense to kidnapping charged in count 7.
The two offenses were charged as separate offenses.

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The People assert that defendant was properly convicted of both kidnapping and
false imprisonment because the offenses involved separate and distinct acts. During the
trial, the prosecutor confirmed, upon the court’s inquiry, that the prosecution was electing
to base its false imprisonment charge on the victim’s confinement in the back bedroom
and the kidnapping charge on defendant’s subsequent act of taking the victim out to the
shed. The prosecutor also argued this during closing argument.
False imprisonment is a lesser included offense to kidnapping. (People v. Magana
(1991) 230 Cal.App.3d 1117, 1120-1121.) “Every person who forcibly, or by any other
means of instilling fear, steals or takes, or holds, detains, or arrests any person in this
state, and carries the person . . . into another part of the same county, is guilty of
kidnapping.” (§ 207.) In contrast, false imprisonment is “the unlawful violation of the
personal liberty of another.” (§ 236.) (People v. Ross (1988) 205 Cal.App.3d 1548,
1553-1554.) Unlike kidnapping, false imprisonment does not include the element of
asportation. But both offenses require a nonconsensual detention or confinement of the
victim.
Even though false imprisonment is a lesser included offense to kidnapping, a
defendant may be convicted of both offenses if they are committed as separate and
independent acts; that is, if the intent to commit false imprisonment manifested itself in
conduct which was materially different from the kidnapping. In People v. Ratcliffe
(1981) 124 Cal.App.3d 808, 820, in which a false imprisonment conviction was reversed
as a lesser included offense of the kidnapping offense, the court concluded there was no
question that the primary criminal objective of the defendant in committing the

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kidnapping was to commit false imprisonment. The court explained that “If both the
false imprisonment count and kidnapping count relate to the same act, double conviction
as well as double punishment is prohibited. [Citations.]” (People v. Ratcliffe, supra, 124
Cal.App.3d at p. 820.) In Ratcliffe, unlike the case at bench, the false imprisonment was
related to the same act as the kidnapping.
Defendant’s reliance on People v. Magana, supra, 230 Cal.App.3d 1117, for the
proposition false imprisonment in the instant case was a lesser included offense of
kidnapping is misplaced. In Magana the false imprisonment and kidnap charges arose
from the same acts. The defendant forced the victim to walk with him through a park,
tied her to a tree, raped her, and then forced her to walk with him for another 15 minutes
in the park until she escaped upon encountering police officers. The same continuous
course of conduct served as a basis for the kidnap and the false imprisonment. (Magana,
supra, at pp. 1120-1121.) Furthermore, in Magana, the court did not consider whether
the kidnapping and false imprisonment (tying the victim to a tree) were separate offenses
since the respondent on appeal conceded that the false imprisonment conviction must be
stricken as a lesser included offense to the kidnapping.
Here, the false imprisonment and kidnapping were discrete acts. Defendant first
falsely imprisoned the victim in the back bedroom for the purpose of raping her. When
he was done and he and the victim were walking down the hallway, defendant noticed the
shed outside and asked the victim, “What is that little house out in back?” When she told
him it was her shed, he formed the new intent of taking her outside to the shed and
locking her inside it. These unrefuted facts provide substantial evidence that the false

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imprisonment offense and subsequent kidnapping were separate offenses, in which
defendant formed a new intent to kidnap the victim, after completing the false
imprisonment offense.
Because sufficient evidence in the record supports the trial court’s finding the two
offenses were separate, defendant’s convictions for both offenses should not be disturbed
on appeal. (People v. Ratcliffe, supra, 124 Cal.App.3d at pp. 815-816.)
3. Convictions for Assault with a Deadly Weapon and Robbery
Defendant contends his conviction for assault with a deadly weapon (count 2)
must be reversed because it is a lesser included offense of robbery. He argues that since
multiple convictions may not be based on necessarily included offenses (People v.
Pearson (1986) 42 Cal.3d 351, 355), his conviction for assault with a deadly weapon
must be reversed because the jury found true the robbery enhancements that defendant
committed robbery while using a deadly weapon and caused great bodily injury (§§
12022, subd. (b)(1) and 12022.7, subd. (a)).
We reject defendant’s argument because assault with a deadly weapon is not a
lesser included offense of robbery. The California Supreme Court held in People v.
Wolcott (1983) 34 Cal.3d 92, 99, that, “because a defendant can commit robbery without
attempting to inflict violent injury, and without the present ability to do so, robbery does
not include assault as a lesser offense. The addition of an allegation that defendant used a
firearm within the meaning of Penal Code section 12022.5 does not alter this
conclusion.” (Wolcott, supra, at p. 100.)

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The Wolcott court reasoned in part that California courts have consistently stated
that such firearm enhancements do not prescribe a new offense but are merely additional
punishment for an offense in which a firearm is used. (People v. Wolcott, supra, 34
Cal.3d at p. 100.) The Wolcott court added, “But even if California could constitutionally
consider enhancement allegations as part of the accusatory pleading for the purpose of
defining lesser included offenses, we see no reason to adopt that course. . . . [¶] . . . [¶]
We conclude that under the statutory definitions of robbery, assault, and use of a firearm,
the offense of assault with a deadly weapon is not a lesser included offense in a charge of
robbery with a ‘use’ enhancement.” (People v. Wolcott, supra, 34 Cal.3d at pp. 101-
102.)
Defendant argues that the United States Supreme Court in Apprendi v. New Jersey
(2000) 530 U.S. 466, implicitly overruled Wolcott’s holding that enhancements are not to
be considered in determining a lesser included offense. Defendant acknowledges this
issue is currently before the California Supreme Court in People v. Sloan (2005) 126
Cal.App.4th 1148 (review granted June 8, 2005) and urges this court to disregard
Wolcott. But until our high court overrules Wolcott, this court will follow Wolcott. Thus
defendant’s conviction for assault with a deadly weapon will stand. (Auto Equity Sales,
Inc. v. Superior Court (1962) 57 Cal.2d 450, 455-456.)
4. Deadly Weapon Enhancement Imposed and Stayed on Count 2
Defendant argues, and the People agree, that the weapon use enhancement (§
12022, subd. (b)(1)) found true as to count 2 (assault with a deadly weapon) must be
stricken. We agree. Personal use of a deadly weapon is an element of the offense of

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assault with a deadly weapon and therefore the trial court erred in staying the
enhancement. It must be stricken from count 2.
5. GBI Enhancement Imposed and Stayed on Count 4
Defendant asserts, and the People agree, the court erred in imposing and staying a
GBI enhancement (§ 12022.8) on count 4 (forcible rape). Both parties agree the
enhancement should be stricken from count 4, but for different reasons. Defendant
argues that since the GBI factor was used in sentencing defendant under the one-strike
law, section 667.61, subdivision (a), the GBI enhancement cannot also be imposed under
section 12022.8.
The People correctly note that the GBI factor was not considered in sentencing
defendant under the one-strike law. However, since the section 12022.8 enhancement
was imposed as to count 3 (forcible oral copulation), it cannot also be imposed as to
count 4. We agree. The section 12022.8 GBI enhancement must be stricken from count
4.
6. GBI Enhancement Imposed on Count 3
Defendant contends the GBI enhancement (§ 12022.8) as to count 3 (forcible oral
copulation) must be stayed because the trial court used GBI to impose a one-strike
sentence in connection with count 4. Defendant argues that under section 654, he cannot
be punished more than once for GBI. We disagree. There was no dual use of the GBI
enhancement.
As noted in the preceding section, GBI implicitly was not used as a factor in
imposing a one-strike sentence as to count 4. Section 667.61, subdivision (a), mandates a

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25-year-to-life sentence for a defendant who commits forcible rape, among other
specified sexual crimes (§ 667.61, subd. (c)), under at least two circumstances
enumerated in subdivision (e). Such circumstances include committing the offense
during a burglary, personally inflicting GBI, and personally using a deadly weapon. (§
667.61, subd. (e)(2), (3), and (4)) In the instant case, defendant committed forcible rape
while committing a burglary and using a dangerous or deadly weapon (i.e., a frying pan).
Since the one-strike sentence imposed on count 4 could be imposed based on the
burglary and dangerous weapon factors, the GBI enhancement can be imposed on count 3
without invoking the multiple punishment prohibition under section 654,2 and need not
be stayed. The trial court’s oversight in not stating that it did not rely on GBI in
imposing the one-strike sentence on count 4, if error, is harmless.
7. Sentencing on Count 7 (Kidnapping)
Defendant contends his sentence for kidnapping must be stayed under section 654
because his kidnapping and robbery convictions arose out of a continuous course of
conduct and therefore he cannot be punished both for offenses.
In discussing section 654, the court in People v. Alvarado (2001) 87 Cal.App.4th
178, explained that “Section 654 is intended to ensure that punishment is commensurate
with a defendant’s criminal culpability. [Citations.] It expressly prohibits multiple
sentences where a single act violates more than one statute. . . . (See, e.g., Neal v. State
2 We note the issue of whether the multiple punishment bar of section 654 applies
to sentence enhancements is currently pending before the California Supreme Court in
People v. Palacios, S132144, review granted May 11, 2005, 28 Cal.Rptr.3d 645.

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of California (1960) 55 Cal.2d 11, 19.) [¶] Section 654 also prohibits multiple sentences
where the defendant commits different acts that violate different statutes but the acts
comprise an indivisible course of conduct engaged in with a single intent and objective.
(Neal v. State of California, supra, 55 Cal.2d at p. 19.) ‘If all of the offenses were
incident to one objective, the defendant may be punished for any one of such offenses but
not for more than one.’ (Ibid.) Thus, in legal effect, different acts that violate different
statutes merge under the perpetrator’s single intent and objective and are treated as if they
were a single act that violates more than one statute. [¶] If, on the other hand, in
committing various criminal acts, the perpetrator acted with multiple criminal objectives
that were independent of and not merely incidental to each other, then he may be
punished for the independent violations committed in pursuit of each objective even
though the violations were parts of an otherwise indivisible course of conduct.
[Citation.]” (Alvarado, supra, at p. 196.)
Whether defendant maintained multiple criminal objectives is a question of fact
for the trial court. We must uphold such a finding if there is substantial evidence to
support it. (People v. Porter (1987) 194 Cal.App.3d 34, 37-38.) The trial court is given
broad latitude in determining whether section 654 is applicable. (People v. Hutchins
(2001) 90 Cal.App.4th 1308, 1312.) When considering whether there has been an abuse
of discretion in imposing multiple punishment, this court “‘must “view the evidence in a
light most favorable to the respondent and presume in support of the [sentencing] order
the existence of every fact the trier could reasonably deduce from the evidence.”’”
(Hutchins, supra, at pp. 1312-1313.)

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The People rely on People v. Foster (1988) 201 Cal.App.3d 20, People v. Nichols
(1994) 29 Cal.App.4th 1651, People v. Porter, supra, 194 Cal.App.3d 34, and People v.
Sandoval (1994) 30 Cal.App.4th 1288, for the proposition defendant was properly
convicted of both robbery and kidnapping because defendant entertained multiple
criminal objectives when he committed the two crimes.
In Foster, the court held section 654 did not bar the court from sentencing
defendant consecutively for false imprisonment and robbery because the robbery was
complete when the defendant committed the false imprisonment offense. After the
defendant and her codefendant robbed two mini market employees, the defendant and
codefendant locked the two employees in the store’s cooler and left. The defendant
argued the false imprisonment offense was incidental to the robbery and therefore under
section 654, the false imprisonment sentence must be stayed.
The Foster court rejected this argument, stating, “There is no merit to this
contention. The imprisonment of the victims occurred after the robbers had obtained all
of the money, and therefore was not necessary or incidental to committing the robbery.
Locking the victims in the store cooler was potentially dangerous to their safety and
health. It is analogous to a needless or vicious assault committed after a robbery, which
has long been held separately punishable and distinguishable from an assault which is
merely incidental to robbery. [Citations.]” (People v. Foster, supra, 201 Cal.App.3d at
pp. 27-28.)
In People v. Nichols, supra, 29 Cal.App.4th 1651, the court also upheld multiple
punishment. The court sentenced the defendant separately and consecutively to

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kidnapping for robbery and attempting to dissuade a witness. In Nichols, the defendant
kidnapped a truck driver and hijacked his truck. During the hijacking, the defendant told
the victim he would kill him if he told anyone about the crime. The Nichols court
rejected the defendant’s contention he could not be punished for both offenses because
they were part of an indivisible course of conduct with one intent and objective. The
Nichols court noted multiple punishment was proper where there was evidence of
consecutive objectives or separate, simultaneous objectives. (Id. at p. 1657.)
Similarly, in Porter, the court rejected the defendant’s contention that the trial
court violated section 654 by sentencing him to concurrent terms for robbery and
kidnapping for robbery. In Porter, the defendant and his codefendant robbed the victim
at knife-point while the victim was sitting in his car. The defendant then told the victim
at knife-point to drive to the victim’s bank so the defendant could withdraw money from
the victim’s bank account. The victim did so but escaped upon arriving at the bank.
The court in Porter concluded the record supported “the trial court’s implied
finding that the two crimes for which appellant was sentenced involved multiple
objectives, were not merely incidental to each other, and were not part of an indivisible
course of conduct.” (People v. Porter, supra, 194 Cal.App.3d at p. 38.) The Porter court
explained: “A reasonable inference from the record is that appellant and his companion
initially planned only to rob the victim of the contents of his wallet, but thereafter came
up with a new idea: kidnapping the victim to his bank to compel him to withdraw money
from his account by means of what they thought was an automated teller card. . . . This is
not, therefore, a case of punishing appellant for kidnapping for the purpose of robbery

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and for committing ‘that very robbery.’ [Citation.] . . . What began as an ordinary
robbery turned into something new and qualitatively very different. . . . The trial court
could reasonably treat this as a new and independent criminal objective, not merely
incidental to the original objective and not a continuation of an indivisible course of
conduct. In the unusual circumstances of this case, appellant could be punished both for
the robbery he committed and the kidnapping for the purpose of a distinctly different type
of robbery.” (Porter, supra, at pp. 38-39.)
Likewise, here, the record supports the trial court’s finding the robbery and
kidnapping crimes involved multiple objectives, were not merely incidental to each other,
and were not part of an indivisible course of conduct. The robbery occurred when
defendant hit the victim over the head with a frying pan and then demanded her money
and keys. After the victim gave defendant her money and keys, defendant formed a new
intent and committed the separate offense of confining the victim in a back bedroom and
raping her. Defendant thereafter noticed a shed outside and formed another new intent
and objective of taking the victim out to the shed and locking her inside. Although the
robbery and kidnapping were committed within a single period of aberrant behavior, the
offenses arose from separately formed objectives predominately independent of each
other. (People v. Alvarado, supra, 87 Cal.App.4th at p. 194.)
While taking the victim out to the shed and locking her inside aided defendant in
escaping, it was committed as an afterthought and was not necessary to completing the
other offenses. After robbing and raping the victim, the defendant could have left the
victim in her home. The victim had been compliant and was in a fragile physical state

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due to defendant inflicting severe physical injuries. Defendant had also turned off the
electrical power and disconnected all of the victim’s phones. Defendant could have
escaped and delayed the victim’s attempt to seek help by simply tying her up in her home
or by some other means without taking her out to the shed.
The court in People v. Sandoval, supra, 30 Cal.App.4th 1288 noted that “‘[A]
separate act of violence against an unresisting victim or witness, whether gratuitous or to
facilitated escape or to avoid prosecution, may be found not incidental to robbery for
purposes of section 654.’” (Sandoval at p. 1300, quoting People v. Nguyen (1988) 204
Cal.App.3d 181, 193.)
In People v. Sandoval, supra, 30 Cal.App.4th 1288, the court upheld consecutive
sentencing for attempted robbery and attempted murder of a convenience store clerk
during a single incident. When the clerk refused to give the defendant money, the
defendant shot the clerk in the chest. The Sandoval court rejected the defendant’s section
654 challenge in which he argued that both offenses emanated from one indivisible
course of conduct. The Sandoval court reasoned that the attempted robbery was complete
when the clerk refused to hand over the money. The defendant then, without
provocation, decided to take a different course of action and shoot the victim. Likewise,
in the instant case, defendant decided to take a different course of action, including raping
the victim and then locking her in the shed. The act of taking the victim out to the shed
and locking her inside was not incidental to the initial robbery even though it arguably
facilitated defendant’s escape.

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Defendant argues that in the instant case, when defendant took the victim out to
the shed, i.e., kidnapped the victim, the robbery was ongoing because after defendant
locked the victim in the shed, he went back to the victim’s house and continued looking
for property to steal. But there is little if any evidence that defendant searched for more
property after locking the victim in the shed. To the contrary, defendant stated in his
recorded statement that, after he locked the victim in the shed, he drove away in the
victim’s car but returned to retrieve his wallet. He claimed that after returning, he looked
for his wallet in the victim’s house, took the victim some water, and then drove off again
in the victim’s car.
Defendant did not state that, after he took the victim to the shed, he continued
robbing the victim or went back in the house looking for more property to steal. Rather,
defendant said in his recorded statement that, after he locked the victim in the shed, he
counted the money from the victim’s purse and dumped the rest of the contents out by the
side of the house. He then left in the victim’s car.
Later in defendant’s recorded statement he said that after he put the victim in the
shed, he looked through her purse (“pouch”), throwing out what he did not want and
keeping the rest. He then went back into the house to put the phones, which were in his
pocket, back in the house. When asked during his statement how much of the mess in the
house defendant caused, defendant said the victim had caused some of it when she was
searching for her purse. He dumped a “bag” in the front room when he came in the house
the “first time,” “at the beginning,” before the victim discovered defendant in her house.

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There is no evidence that defendant continued robbing the victim after he initially took
her money and keys.
Even if defendant’s version of the incident is not entirely truthful, there is
substantial evidence that defendant’s initial objective of robbing the victim of her money
and keys ended before defendant decided to rape the victim and put her in the shed. As
in Sandoval, defendant’s act of taking the victim to the shed was a different course of
action, which was not incidental to the robbery for purposes of section 654 even though it
may have facilitated defendant’s escape. We thus conclude the trial court did not abuse
its discretion in sentencing defendant separately for robbery and kidnapping.
8. Consecutive and Aggravated Terms
On February 2, 2007, we granted defendant’s petition for rehearing of this court’s
unpublished opinion filed on January 3, 2007, in light of Cunningham, supra, 127 S.Ct. at
p. 860. Rehearing was limited to the issues of consecutive and aggravated sentencing
under Cunningham. This court deemed defendant’s petition for rehearing a supplemental
brief addressing the effect of Cunningham. The People filed a responsive supplemental
brief, and defendant filed a supplemental reply.
Defendant contends the trial court erred in imposing consecutive and aggravated
terms because the court based its sentencing decision on facts not found by the jury.
(Blakely, supra, 542 U.S. at pp. 303-304.) Upper terms were imposed on counts 1
(stayed), 3, and 7. Consecutive sentencing was imposed on counts 3 and 8.

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A. Factual Background
At the sentencing hearing, the trial court found the following aggravated factors:
“[T]he crime involved great bodily harm, cruelty, viciousness, and callousness; that the
defendant was armed with or used a weapon at the time of the offense; that the victim
was particularly vulnerable; and that the offense involved a degree of sophistication and
planning. [¶] The evidence was that the defendant selected the victim and her residence,
not just the residence to break into, but also an indication that he figured he could take the
victim over. ‘Overcome her’ is the interpretation the Court puts to that.” The court later
noted the jury did not find the use of a dangerous or deadly weapon as to count 7,
kidnapping.
The court found a single mitigating factor, of defendant not having a prior criminal
history.
Based on these factors, the trial court sentenced defendant to an aggravated eight-
year term for count 7.
As to count 3 (forcible oral copulation, § 288a, subd. (c)(2)), the trial court
imposed an eight-year aggravated term, consecutive to count 7 (kidnapping, § 667.6,
subd. (c)). The court added a five-year GBI enhancement for a total term on count 7 of
13 years.
As to count 8 (robbery, § 211), the court imposed a consecutive one-year four-
month term, consisting of one-third the middle term.
The trial court also imposed a six-year upper term for count 1 (burglary, § 459),
but stayed the sentence (§ 654).

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At a subsequent sentence modification and restitution hearing on September 30,
2005, the court left defendant’s sentence intact. The court reiterated the aggravating
factors previously relied on for the aggravated terms as follows: “The Court did adopt
those factors in aggravation appearing on page 4 of the probation report. Specifically,
rule 4.414 subsection (b), the defendant engaged in violent conduct which indicates a
serious danger to society. In addition to those articulated by the probation report, the
crime involved great bodily harm, indicating a high degree of cruelty, viciousness and
callousness. The defendant was armed, used a weapon. [¶] At the time the victim was
particularly vulnerable in that she lived alone and the Court noted from the trial testimony
that there was a significant degree of planning that went into the selection of this victim,
the exercise and execution of the crime itself. The planning disclosed some degree of
criminal sophistication by this defendant.”3
The record reflects the trial court found that the factors in aggravation outweighed
the sole mitigating factor. Defendant did not raise a Blakely objection to the factors in
aggravation.
B. Forfeiture
The People contend that because defendant failed to object in the trial court on the
basis now urged on appeal, he has forfeited any challenge based on Blakely, supra, 542
U.S. 296. (See Hill, supra, 131 Cal.App.4th at p. 1103 [holding that a Blakely challenge
was forfeited by the defendant’s failure to raise it in the trial court].)
3 All further references to rules are to the California Rules of Court.

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We reject this forfeiture argument. Unlike the defendant in Hill, supra, 131
Cal.App.4th at page 1103, who waived a Blakely challenge by failing to raise it at his
sentencing which occurred after Blakely but before People v. Black, supra, 35 Cal.4th
1238, vacated in Black v. California (Feb. 20, 2007) ___ U.S. ___ [127 S.Ct. 1210, ___
L.Ed.2d ___, 2007 WL 505809] (Black), defendant was sentenced on August 5, 2005,
after Black was decided on June 20, 2005. Therefore a Blakely objection would have
been futile under controlling law which the court was compelled to follow. Under such
circumstances, defendant did not forfeit the issue. (People v. Chavez (1980) 26 Cal.3d
334, 350, fn. 5; City of Long Beach v. Farmers & Merchants Bank (2000) 81 Cal.App.4th
780, 784-785.)
Even if defendant forfeited the issue, to forestall any claim of ineffective
assistance of counsel based on failure to raise a timely objection, we will address the
issue on the merits. (People v. Norman (2003) 109 Cal.App.4th 221, 229-230.)
C. Analysis
As stated in Cunningham, California’s determinate sentencing law (DSL) and “the
rules governing its application, direct the sentencing court to start with the middle term,
and to move from that term only when the court itself finds and places on the record facts
- whether related to the offense or the offender - beyond the elements of the charged
offense.” (Cunningham, supra, 127 S.Ct. at p. 862); § 1170, subd. (b); rule 4.420(a).)
Cunningham rejected this procedure, holding that “under the Sixth Amendment, any fact
that exposes a defendant to a greater potential sentence must be found by a jury, not a

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judge, and established beyond a reasonable doubt, not merely by a preponderance of the
evidence.” (Cunningham, supra, 127 S.Ct. at pp. 863-864.)
(1) Consecutive Sentencing
Defendant asserts that under Cunningham, supra, 127 S.Ct. at pages 863-864,
imposition of consecutive terms for counts 3 and 8 violated the Sixth and Fourteenth
Amendments to the United States Constitution, as interpreted in Blakely, supra, 542 U.S.
at pages 303-304. But, as explained in People v. Hernandez (2007) 147 Cal.App.4th
1266, 1270 (Hernandez), “Cunningham did not address the constitutionality of the DSL
pertaining to a trial court’s decision to impose concurrent or consecutive sentences. It did
not mention, let alone expressly overrule, the California Supreme Court’s decision that
‘Blakely’s underlying rationale is inapplicable to a trial court’s decision whether to
require that sentences on two or more offenses be served consecutively or concurrently.’
(People v. Black, supra, 35 Cal.4th at p. 1262, vacated in Black v. California (Feb. 20,
2007) ___ U.S. ___, [2007 U.S. Lexis 1856].)”
In rejecting the defendant’s contention that he was entitled to a jury determination
of the facts upon which the trial court relied to impose consecutive sentences, the
Hernandez court explained that “‘While there is a statutory presumption in favor of the
middle term as the sentence for an offense [citation], there is no comparable statutory
presumption in favor of concurrent rather than consecutive sentences for multiple
offenses except where consecutive sentencing is statutorily required. The trial court is
required to determine whether a sentence shall be consecutive or concurrent but is not
required to presume in favor of concurrent sentencing.’ [Citation.]” (Hernandez, supra,

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147 Cal.App.4th at p. 1270, quoting People v. Reeder (1984) 152 Cal.App.3d 900, 923.)
Defendant therefore “does not have a legal right to concurrent sentencing, and as the
Supreme Court said in Blakely, ‘that makes all the difference insofar as judicial
impingement upon the traditional role of the jury is concerned.’” (Hernandez, supra, at
p. 1271, quoting Blakely, supra, 542 U.S. at p. 309.)
Accordingly, a jury trial was not required as to the factors the trial court relied on
in imposing consecutive terms on counts 3 and 8.
(2) Aggravated Terms
Citing Cunningham, supra, 127 S.Ct. at pp. 860, 864-871, defendant contends his
aggravated sentences for forcible oral copulation (count 3) and kidnapping (count 7)
should be reduced to the middle terms or, alternatively, this court should remand the case
for resentencing because the trial court imposed aggravated terms based on facts not
found by the jury.
When imposing aggravated terms on counts 1, 3, and 7, the trial court relied on
factors which, under Blakely, supra, 542 U.S. at pp. 303-304, and Cunningham, supra,
127 S.Ct. at pp. 863-864, required true findings by the jury. Those factors included
findings that (1) the crime involved great bodily harm, indicating a high degree of
cruelty, viciousness and callousness; (2) the victim was particularly vulnerable in that she
lived alone and was 60 years old; (3) there was a significant degree of planning that went
into the selection of the victim; (4) the crime involved a degree of criminal sophistication
and planning; (5) defendant engaged in violent conduct indicating he was a serious
danger to society; and (6) defendant used a weapon.

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These are factual findings, most of which the court, rather than the jury, made.
Such findings by the court were improper, as stated in Cunningham: “[T]he Federal
Constitution’s jury-trial guarantee proscribes a sentencing scheme that allows a judge to
impose a sentence above the statutory maximum based on a fact, other than a prior
conviction, not found by a jury or admitted by the defendant.” (Cunningham, supra, 127
S.Ct. at p. 860; Apprendi v. New Jersey (2000) 530 U.S. 466, 490; Blakely, supra, 542
U.S. at pp. 303-304.)
Here, the facts relied on by the trial court were not admitted by defendant or found
true by the jury, with the exception of the GBI and weapon use factors. This court cannot
rely on the jury findings of GBI or use of a weapon since those findings were either
elements of defendant’s crimes or used to impose enhancements and thus were not
available for use as aggravating factors. (People v. Hill (1994) 23 Cal.App.4th 1566,
1575.) Therefore, under Cunningham, supra, 127 S.Ct. 856, the trial court erred in
imposing the aggravated terms based on factors which should have been decided by the
jury.
We reject the People’s argument that the factors the trial court relied on in
imposing the upper terms were reflected in defendant’s statement given to the police. In
his statement, defendant admitted he broke into the victim’s home and shut off her
electricity; when the victim saw defendant, he pushed her down and hit her with a pan;
defendant took her purse and car keys, and later put her in the shed; and he forced the
victim into her bedroom, hit her, and raped her. Even though defendant admitted these

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facts in his police statement, he did not expressly admit the factors relied on by the trial
court, which must be tried by a jury.
(3) Harmless error
In the alternative, the People argue that any error in imposing an aggravated
sentence was harmless error because there was overwhelming or uncontradicted evidence
of the aggravated factors relied on by the court. The People argue that since the jury
would have found at least one of the aggravating circumstances true beyond a reasonable
doubt, there was no prejudice. (Chapman v. California (1967) 386 U.S. 18, 24;
Washington v. Recuenco (2006) ___ U.S. ___ [126 S.Ct. 2546, 2553] (Recuenco).)
The United States Supreme Court in Recuenco concluded that failure to submit a
sentencing factor to the jury does not constitute structural error requiring reversal per se.
(Recuenco, supra, 126 S.Ct. at p. 2553.) In Recuenco, the defendant was convicted of
assault with a deadly weapon. The trial court imposed a sentence enhancement based on
the defendant being armed with a firearm. The jury verdict did not contain a finding as to
this factor. The United States Supreme Court in Recuenco held the error was subject to a
harmless error analysis, rather than reversible per se. (Ibid.)
Likewise, in the instant case the harmless error analysis applies to the trial court’s
error in imposing aggravated terms based on findings which should have been made by
the jury rather than the court. (Recuenco, supra, 126 S.Ct. at p. 2553.) The record in this
case reflects that, absent the unconstitutional fact findings made by the court, the trial
court could not have imposed aggravated terms. There were also no recidivism factors
which the trial court could have relied on in imposing the aggravated sentences.

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The People argue that we need not reverse the court’s upper-term sentences
because any Cunningham error was harmless beyond a reasonable doubt under Chapman
v. California, supra, 386 U.S. at p. 24. The People claim the jury would have found
some or all of the aggravating factors true had they been presented to the jury for
determination. These contentions are unavailing.
The court imposed the upper-term sentences in this case because it found six
aggravating factors and only one mitigating factor - that defendant had no criminal
record. We recognize that a single aggravating factor is sufficient to impose an
aggravated upper prison term where the aggravating factor outweighs the cumulative
effect of all mitigating factors. (People v. Nevill (1985) 167 Cal.App.3d 198, 202; People
v. Osband (1996) 13 Cal.4th 622, 728-729.) But, because we can only speculate which,
if any, of the aggravating factors relied on by the court the jury would have found true,
and what effect those findings would have had on the court at sentencing when weighed
against the single mitigating factor, we cannot find the Blakely error to have been
harmless beyond a reasonable doubt.
Thus, pending further guidance from our Supreme Court, we choose to utilize the
remedy of a remand for resentencing, as that is the usual remedy for erroneous imposition
of the upper term. (See, e.g., People v. Quinones (1988) 202 Cal.App.3d 1154, 1159-
1160; People v. Young (1983) 146 Cal.App.3d 729, 737.) We therefore reverse as to
sentencing alone, for reconsideration of the appropriate base term on counts 1, 3, and 7,
consistent with the requirements of Cunningham, supra, 127 S.Ct. 856.

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9. Disposition
We affirm the judgment of conviction but remand this case to the superior court to
correct the sentence enhancements on counts 2 and 4 and for resentencing as to counts 1,
3 and 7. The trial court is accordingly directed to modify defendant’s sentence as
follows: (1) the weapon use enhancement (§ 12022, subd. (b)(1)) imposed on count 2
(assault with a deadly weapon) shall be stricken; (2) the great bodily injury enhancement
(§ 12022.8) imposed on count 4 shall be stricken; (3) the aggravated sentences imposed
on counts 1 (stayed), 3 and 7 shall be vacated and the trial court shall resentence
defendant on these counts in accordance with this opinion.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
s/Hollenhorst
Acting P. J.
We concur:
s/King
J.
s/Miller
J.

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