P. v. White

Filed 5/1/07 P. v. White CA5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
ADRIAN JOE WHITE,
Defendant and Appellant.
F050184
(Super. Ct. No. F05908615-8)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Wayne R.
Ellison, Judge.
Deanna F. Lamb, under appointment by the Court of Appeal, for Defendant and
Appellant.
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves,
Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and
John G. McLean, Deputy Attorney General, for Plaintiff and Respondent.

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2.
Defendant Adrian Joe White was convicted of several sex crimes. Additional
findings included that he was convicted of a prior serious felony within the meaning of
the Three Strikes law, that he served four prior prison terms, and that he suffered a prior
serious felony conviction within the meaning of Penal Code section 667, subdivision (a).1
He was sentenced to prison for 69 years. He appeals, claiming the upper and
consecutive terms were imposed based on facts not found by the jury, there was a dual
use of facts in imposing full consecutive sentences, and the court erroneously imposed a
security fee for offenses committed before the effective date of the statute. Most
significantly, we are called upon to apply the recent United States Supreme Court case of
Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] to determine if
defendant’s sentence was properly imposed. We remand the matter to the trial court for
further proceedings.
FACTS AND PROCEEDINGS
In the early morning hours of January 4, 1996, 14-year-old Elizabeth was asleep in
the living area of an apartment she shared with her mother, her 16-year-old brother, her
four-year-old sister, and her 46-year-old grandfather. Her brother and grandfather were
asleep in the bedroom. Her mother and sister were sleeping nearby. She awoke when
she felt someone rubbing her vagina underneath her panties. She was told by defendant,
an intruder, that if she did not cooperate he would kill her. He told her he had a gun; if
she did not remain quiet, he would kill her sister. She was raped (count 1) and orally
copulated (count 4), and defendant sexually penetrated her vagina and anus by force with
a finger (counts 2 & 3). Elizabeth’s mother woke up when defendant dropped something.
Defendant told the mother not to move, that he had a gun. Defendant left.
1 All future code references are to the Penal Code unless otherwise noted.

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3.
The mother called the police. Elizabeth was examined at the hospital and swabs
were taken from her. In addition, the sleeping bag she was using at the time was kept as
evidence. In September of 2003, DNA from the sperm gathered from Elizabeth and from
the sleeping bag was identified as belonging to defendant. Neither Elizabeth nor her
mother was able to identify defendant at trial. Because of the passage of time, Elizabeth
was not able to recall all the details of the assault at trial. The officer who took her
statement testified about the statement Elizabeth gave shortly after the attack.
Defendant did not challenge that a sexual assault on Elizabeth had occurred. His
defense was that the DNA wrongly identified him as the perpetrator.
Defendant was convicted of forcible rape (§ 261, subd. (a)(2)), forcible oral
copulation (§ 288a, subd. (c)(2)), and two counts of sexual penetration by force (§ 289,
subd. (a)(1)). In addition, defendant admitted he suffered a prior serious felony (burglary)
within the meaning of the Three Strikes law (§ 667, subds. (b)-(i)), suffered a prior
serious felony within the meaning of section 667, subdivision (a)(1) and suffered four
prior prison terms (§ 667.5).
The court sentenced defendant to the aggravated term of eight years for each of his
convictions. These terms were doubled to 16 years based on the strike. The trial court
gave the following reasons for imposing the aggravated terms: “[F]irst of all, given the
circumstances of these crimes, the manner in which they were committed, the fact that
they were committed at night in the victim’s own home with her family present, and that
there were threats made to her and her family, her age at the time of the commission of
this crime, and her particular vulnerability with her mother and baby sister in the room
when this occurred and the threats to them, first of all, I find that the circumstances in
aggravation for those reasons alone greatly outweigh any in mitigation that may apply in
this case. And I can’t think of any, frankly, that apply to the circumstances of this case.
And for that reason I’m going to apply the aggravated term as to each of these four
counts.”

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4.
The court then discretionarily ordered that these terms run fully consecutive
pursuant to section 667.6, subdivision (c). The court’s reasons were as follows: “I also
find in light of your criminal history and the four prison priors, which counsel has
referred to here, which were found true or admitted by the--by you during the course of
this case, and the circumstances of the crime itself, that fully consecutive sentencing is
not only appropriate but demanded, really, in the court’s view under the circumstances of
this case.”
The court added five years for the section 667, subdivision (a) enhancement. The
court imposed and then struck the four one-year prior prison terms pursuant to section
1385. Defendant was sentenced to prison for a total term of 69 years.
DISCUSSION
I. Imposition of the Upper Term
In Cunningham v. California, supra, 549 U.S. ___[127 S.Ct. 856] the United
States Supreme Court held that Cunningham’s right to trial by jury was denied under
California’s determinate sentencing law (DSL) because the judge, not the jury, found the
facts that resulted in an upper term sentence. Petitioner Cunningham was convicted of
continuous sexual abuse of a child. Under California’s DSL, Cunningham faced the
lower term of six years, the mid term of 12 years, or the upper term of 16 years. In order
to impose the upper term, the judge had to find one or more facts in aggravation. The
trial judge found six aggravating factors, including victim vulnerability and that
Cunningham was a serious danger to the community based on his violent conduct.
Cunningham’s lack of a prior record was found as the sole factor in mitigation. The trial
court found that the aggravating factors outweighed the one mitigating factor and
sentenced Cunningham to the upper term. The appellate court upheld his sentence. The
California Supreme Court denied Cunningham’s petition for review, having recently
decided in People v. Black (2005) 35 Cal.4th 1238 (Black) “that the judicial factfinding
that occurs when a judge exercises discretion to impose an upper term sentence … under

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5.
California law does not implicate a defendant’s Sixth Amendment right to a jury trial.”
(Id. at p. 1244.)
The United States Supreme Court granted review and disagreed with the
California Supreme Court’s decision in Black. “[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 v. California, supra, 549 U.S. at p. ___
[127 S.Ct. at p. 860].)
As previously set forth, the trial court here sentenced defendant to the aggravated
term for each of his four convictions. The aggravated terms were based solely on facts
not found by the jury or admitted by the defendant. Thus, error under Cunningham
occurred in the imposition of the aggravated terms.
II. Imposition of Full Consecutive Terms
The trial court imposed full consecutive terms for all counts. It did so under the
discretionary provision of section 667.6, subdivision (c). Full consecutive sentences are
mandatory for certain sex crimes under section 667.6, subdivision (d) when the crimes
involve separate victims or involve the same victim on separate occasions. The
imposition of full consecutive sentences for the same enumerated sex crimes is
discretionary “whether or not the crimes were committed during a single transaction.”
(§ 667.6, subd. (c).)
Defendant contends the trial court could not properly impose full upper term
consecutive sentences because the findings made to authorize the full upper terms were
not found by the jury beyond a reasonable doubt. In particular, defendant argues that the
question of whether the convictions were committed on the same occasion and arose
from the same set of operative facts or, alternatively, were committed so closely in time
to indicate a single transaction were issues that should have been submitted to the jury for
determination beyond a reasonable doubt.

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6.
We begin by finding that Cunningham does not apply to the imposition of
consecutive sentences. In doing so we agree with the analysis in People v. Hernandez
(2007) 147 Cal.App.4th 1266. Cunningham did not address consecutive sentences and
did not expressly overrule People v. Black, supra, 35 Cal.4th at page 1262 which held
that consecutive sentencing decisions are not affected by the United States Supreme
Court decisions in Apprendi v. New Jersey (2000) 530 U.S. 466 and Blakely v.
Washington (2004) 542 U.S. 296.
In addition, unlike the statutory presumption in favor of a middle term, there is no
statutory presumption in favor of concurrent rather than consecutive sentences. (People v.
Reeder (1984) 152 Cal.App.3d 900, 923.) The trial court has an affirmative duty to
determine if concurrent or consecutive sentences will be imposed for multiple offenses.
(Pen. Code, § 669.) The provision in Penal Code section 669 that imposes concurrent
rather than consecutive sentences if the trial court fails to perform its affirmative duty of
choosing is a policy of “speedy dispatch and certainty.” (In re Calhoun (1976) 17 Cal.3d
75, 82.)
Although the trial court is required to state reasons for its decision to impose
consecutive sentences, this requirement does not create a presumption or entitlement to a
particular result. (See In re Podesto (1976) 15 Cal.3d 921, 937.) “[E]very 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.” (People v. Hernandez, supra, 147 Cal.App.4th at
p. 1271.) The Cunningham line of cases does not apply to consecutive sentences.
As previously set forth under section 667.6, when a defendant commits a number
of enumerated sex crimes he is subject to either mandatory full consecutive sentences if
the crimes involve separate victims or involve the same victim on separate occasions or
discretionary full consecutive sentences whether or not the crimes were committed during
a single transaction. Here defendant was sentenced under the discretionary provision.

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7.
He was subject to this provision because he was convicted by a jury beyond a reasonable
doubt of several of the enumerated sex offenses. A finding that the crimes were
committed so closely in time to indicate a single transaction is not a criterion for
inclusion within subdivision (c); inclusion occurs whether or not the crimes were
committed during a single transaction. Although defendant states that a finding of
separate occasions was required to subject him to the full, separate, consecutive
sentencing provision, this finding is required for mandatory sentencing under
subdivision (d), not subdivision (c).
To the extent that defendant may be arguing that there must be a separate factual
finding by a jury beyond a reasonable doubt to exclude his sentence from the benefits of
the application of section 654, this argument fails.2 The line of cases beginning with
Apprendi does not apply to a determination under section 654 because “when section 654
is found to apply, it effectively ‘reduces’ the total sentence otherwise authorized by the
jury’s verdict. The rule of Apprendi, however, only applies where the nonjury factual
determination increases the maximum penalty beyond the statutory range authorized by
the jury’s verdict.” (People v. Cleveland (2001) 87 Cal.App.4th 263, 270, italics in
original; People v. Solis (2001) 90 Cal.App.4th 1002, 1022.)
Next, defendant argues the trial court could not rely on the fact he had served four
prior prison terms to impose full consecutive sentences because when he admitted the
prior prison terms he was advised that each prior term would add one additional year to
2 Section 654 provides: “(a) An act or omission that is punishable in different ways by
different provisions of law shall be punished under the provision that provides for the
longest potential term of imprisonment, but in no case shall the act or omission be
punished under more than one provision. An acquittal or conviction and sentence under
any one bars a prosecution for the same act or omission under any other.” [¶] (b)
Notwithstanding subdivision (a), a defendant sentenced pursuant to subdivision (a) shall
not be granted probation if any of the provisions that would otherwise apply to the
defendant prohibits the granting of probation.”

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8.
his sentence; he was not advised that the prior prison terms could be used to impose full
consecutive sentences in lieu of the one additional year for each prison term.
“[A]dvisement as to the consequences of a plea is not constitutionally mandated.”
(People v. Walker (1991) 54 Cal.3d 1013, 1022.) An admission must only be set aside if
the failure to advise the accused of the consequences of his admission is prejudicial. The
defendant must demonstrate that he would not have entered his admission if he had been
told about the omitted consequence. (Id. at pp. 1022-1023.)
While it is unlikely that defendant could have demonstrated that he would not
have entered his admission if he had been told about the omitted consequence (use as a
sentencing factor), we need not determine this question because, as shall be explained,
the matter must be remanded to the trial court for a resentencing hearing. If defendant
wishes to withdraw his admission of the prior prison terms, he may make a motion to do
so at his resentencing hearing. If defendant’s motion to withdraw his admission of the
prior prison terms is granted, the People must be given an opportunity to retry defendant
on the prior prison terms.
The sentencing hearing here occurred prior to Cunningham, thus the trial court
was bound by Black and was not aware of the requirements regarding proper aggravating
factors and factors that can be used to impose consecutive sentences. The trial court must
be given the opportunity to resentence the defendant guided by the knowledge that it may
not use facts not found beyond a reasonable doubt to impose aggravated terms but may
use these factors to discretionarily impose full consecutive sentences. The court may use
defendant’s prior convictions and any other facts found beyond a reasonable doubt (for
example prior prison terms) to impose aggravated sentences.
III. Dual Use of Facts
Defendant attacks the imposition of full consecutive sentences, claiming there was
a dual use of facts because the court used the circumstances of the crime to both impose
the aggravated term and the full consecutive term. Because the matter must be remanded

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9.
for resentencing, this issue is no longer viable and may be raised in the trial court if it
should occur again. We note that a trial court may not use the same fact to impose a full
consecutive sentence under section 667.6 and to impose the upper term. (People v.
Osband (1996) 13 Cal.4th 622, 728.)
Defendant repeats his argument regarding the use of his prior prison terms,
arguing that the imposition of full consecutive terms is a far greater consequence than he
agreed to and a far greater consequence than allowed by the rules. In particular, he states
that prison priors may be used to impose an upper term, but may not be used as a fact to
impose a full consecutive sentence.
As previously discussed, defendant may make a motion to withdraw his
admissions of the prior prison terms at resentencing, if he so desires. Assuming that facts
of the prior prison terms remain as true findings at the time of sentencing (because
defendant does not withdraw his admissions or the People prove the prior prison terms
beyond a reasonable doubt), the court may utilize the prior prison terms as a factor in
aggravation, as a factor to impose consecutive sentences, or as prior prison term
enhancements.
IV. Imposition of a Security Fee
The offenses in this case occurred in January of 1996. Defendant was sentenced
in April of 2006. The court imposed a $20 court security assessment fee pursuant to
section 1465.8, subdivision (a)(1). This statute was enacted and effective in 2003.
Defendant contends this statute does not apply to offenses committed before the
effective date of the statute authorizing such fees and imposition of the fee was
unauthorized.
The California Supreme Court has granted review in two cases to determine if the
security fee may be imposed retroactively. (People v. Carmichael (rev. granted May 10,
2006, S141415) and People v. Alford (rev. granted May 10, 2006, S142508.) We agree
with the analysis in People v. Wallace (2004) 120 Cal.App.4th 867 finding that the court

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10.
security fee mandated by section 1465.8 may be imposed retroactively on a defendant
who committed his crime before the effective date of the statute.
DISPOSITION
The matter is remanded to the trial court for further proceedings as previously set
forth. In all other respects the judgment is affirmed.
__________________________
VARTABEDIAN, Acting P. J.
WE CONCUR:
___________________________________
WISEMAN, J.
___________________________________
CORNELL, J.

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