P. v. Griffin

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Filed 3/1/07 P. v. Griffin CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Tehama)
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THE PEOPLE,
Plaintiff and Respondent,
v.
DAVID SAMUEL GRIFFIN,
Defendant and Appellant.
C051323
(Super. Ct. Nos.
NCR65580 & NCR66068)
After defendant David Samuel Griffin twice scuffled with
jail personnel while he was incarcerated, a jury convicted him
of three counts of resisting an executive officer, one count of
battery on a custodial officer, and one count of misdemeanor
battery on an officer. He was sentenced to an aggregate state
prison term of eight years and eight months, including consecutive
sentences for the three convictions for resisting an executive
officer. The sentence imposed for battery on a custodial officer
was stayed pursuant to Penal Code section 654.

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On appeal, defendant contends the imposition of consecutive
sentences violated the principles of Blakely v. Washington (2004)
542 U.S. 296 [159 L.Ed.2d 403] (hereafter Blakely). We disagree
and shall affirm the judgment.
BACKGROUND
Count I, resisting an executive officer in the performance of
his duties, relates to the following incident: On February 9,
2005, defendant was an inmate in the Tehama County Jail. He became
agitated when a jail officer confronted him about his violation of
a jail rule. Defendant refused to comply with the officer’s order
and punched the officer’s supervisor, Sergeant David Hohenstein,
in the shoulder as he was attempting to get defendant to respond
to the order.
Count IV, resisting an executive officer in the performance of
his duties, relates to the following incident: On May 11, 2005,
while still an inmate at the Tehama County Jail, defendant became
agitated when jail officer John Davis stopped him from taking an
extra roll of toilet paper to his cell. Davis was concerned because
defendant’s cellmate had been using extra toilet paper to plug up a
drain and flood the cell or to soak the paper and throw it. When
Davis told him to return the roll of toilet paper, defendant said he
“was not going to do anything a fat old fucker like [Davis] told him
to [do].” Defendant then walked away with the roll. Davis pursued
defendant, who turned around and hit Davis in the face.
Count VI, resisting an executive officer in the performance of
his duties, relates to the following incident: When defendant swung
at Officer Davis again, Officer Clayton Delaughder grabbed defendant,

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who struggled to get away, causing Delaughder to suffer a laceration
behind his left ear and abrasions to his left eye.
After sentencing defendant on count I, the trial court
imposed a consecutive sentence on count IV, explaining that
it “is a separate offense committed at a separate time and place
from Count I. The Court also notes a prior parole violation.”
The court also imposed a consecutive sentence on count VI,
stating that it “is an offense which involved a separate victim.
The Court also notes the prior parole violation.”
DISCUSSION
Defendant argues Blakely, supra, 542 U.S. 296 [159 L.Ed.2d 403]
invalidates the statutory method used by California trial judges to
impose consecutive sentences, thereby invalidating his sentence.
The contention fails.
Applying the Sixth Amendment to the United States Constitution,
the United States Supreme Court held in Apprendi v. New Jersey
(2000) 530 U.S. 466 [147 L.Ed.2d 435] (hereafter Apprendi) that
other than the fact of a prior conviction, any fact that increases
the penalty for a crime beyond the statutory maximum must be tried
to a jury and proved beyond a reasonable doubt. (Id. at p. 490
[147 L.Ed.2d at p. 455].) For this purpose, the statutory maximum
is the maximum sentence that a court could impose based solely on
facts reflected by a jury’s verdict or admitted by the defendant;
thus, when a sentencing court’s authority to impose an enhanced
sentence depends upon additional fact findings, there is a right to
a jury trial and proof beyond a reasonable doubt on the additional

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facts. (Blakely, supra, 542 U.S. at pp. 302-304 [159 L.Ed.2d at
pp. 413-414].)
Relying on Apprendi and Blakely, defendant claims the court
erred in imposing consecutive sentences on counts IV and VI because
it relied upon facts not submitted to the jury and proved beyond
a reasonable doubt, thus depriving him of the constitutional right
to a jury trial on facts legally essential to the sentence.
In Cunningham v. California (2007) ___ U.S. ___ [127 S.Ct. 856,
860, ___ L.Ed.2d ___] (hereafter Cunningham), the United States
Supreme Court held that by “assign[ing] to the trial judge, not
to the jury, authority to find the facts that expose a defendant
to an elevated ‘upper term’ sentence,” California’s determinate
sentencing law (DSL) “violates a defendant’s right to trial by
jury safeguarded by the Sixth and Fourteenth Amendments.” (Ibid.,
overruling People v. Black (2005) 35 Cal.4th 1238 on this point.)
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 WL 505809].)
For reasons that follow, we reject defendant’s assertion that
he was entitled to have a jury determine the facts upon which the
trial court relied to impose consecutive sentences.

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Penal Code section 669 imposes an affirmative duty on a trial
court to determine whether the terms of imprisonment for multiple
offenses are to be served concurrently or consecutively. (In re
Calhoun (1976) 17 Cal.3d 75, 80-81.) In most cases, the section
leaves this decision to the trial court’s discretion. (People v.
Jenkins (1995) 10 Cal.4th 234, 255-256.) “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.” (People v. Reeder (1984) 152 Cal.App.3d 900,
923.)
Penal Code section 669 provides that when a trial court fails
to determine whether multiple sentences shall run concurrently or
consecutively, then the terms shall run concurrently. This provision
reflects the Legislature’s policy of “speedy dispatch and certainty”
of criminal judgments and the sensible notion a defendant should not
be required to serve a sentence that has not been imposed by a court.
(See In re Calhoun, supra, 17 Cal.3d at p. 82.) This provision does
not relieve a sentencing court of the affirmative duty to determine
whether sentences for multiple crimes should be served concurrently
or consecutively. (Ibid.) And it does not create a presumption or
other entitlement to concurrent sentencing. Under Penal Code section
669, a defendant convicted of multiple offenses is entitled to the

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exercise of the sentencing court’s discretion, but is not entitled
to a particular result.
The trial court is required to state reasons for its sentencing
choices, including a decision to impose consecutive sentences.
(Cal. Rules of Court, rule 4.406(b)(5); People v. Walker (1978)
83 Cal.App.3d 619, 622.) This requirement ensures that the court
analyzes the problem and recognizes the grounds for the decision,
assists meaningful appellate review, and enhances public confidence
in the system by showing that sentencing decisions are careful,
reasoned, and equitable. (People v. Martin (1986) 42 Cal.3d 437,
449-450.) However, the requirement that reasons for a sentence
choice be stated does not create a presumption or entitlement to a
particular result. (See In re Podesto (1976) 15 Cal.3d 921, 937.)
Therefore, entrusting to trial courts the decision whether
to impose concurrent or consecutive sentencing under California’s
sentencing laws is not precluded by the decisions in Apprendi,
Blakely, and Cunningham. In this state, every person who commits
multiple crimes knows he or she is risking consecutive sentencing.
While such a person has the right to the exercise of the court’s
discretion, the person 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.” (Blakely, supra,
542 U.S. at p. 309 [159 L.Ed.2d at p. 417].)
Accordingly, the trial court here did not err in imposing
consecutive sentences.

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In any event, defendant’s claim of error fails because the
imposition of consecutive sentences rested wholly on facts found
true by the jury -- as defendant acknowledges, the jury found true
“the factors relating to separate times, places, and victims,”
which findings “are self-evident from the verdict forms.”
Criteria justifying that imposition of consecutive sentences
include that the crimes involved separate acts of violence or
threats of violence (Cal. Rules of Court, rule 4.425, subd. (a)(2))
and that they were committed at different times rather than being
committed so closely in time and place as to indicate a single
period of aberrant behavior (Cal. Rules of Court, rule 4.425,
subd. (a)(1)).
A single valid factor is sufficient to justify a sentencing
choice, whether it is an aggravated term of imprisonment or a
consecutive sentence. (People v. Dancer (1996) 45 Cal.App.4th 1677,
1695-1696, overruled on other grounds in People v. Hammon (1997) 15
Cal.4th 1117, 1123.) “Moreover, the same factor can support numerous
consecutive sentences and a single proper statement of reasons will
support them.” (Dancer, supra, 45 Cal.App.4th at p. 1696.)
Here, in imposing a consecutive sentence on count IV because
it is “a separate offense committed at a separate time and place
from Count I” and in imposing a consecutive sentence on count VI
because it “involved a separate victim,” the trial court indicated

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that it did so based on facts found true by the jury. There was
no Blakely error.
DISPOSITION
The judgment is affirmed.
SCOTLAND , P.J.
We concur:
DAVIS , J.
RAYE , J.

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