P. v. Markland

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Filed 12/20/06 P.v . Markland CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or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
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
DAVID LEE MARKLAND,
Defendant and Appellant.
C047136
(Super. Ct. No.
03F05117)
A jury convicted defendant David Lee Markland of forcible
rape and related offenses of A., a 16-year-old girl. The jury
deadlocked on charges that, nine months later, defendant
sexually molested M., a 14-year-old girl. Defendant argues the
court erred by refusing to sever trial of the charges involving
each victim, excluding evidence that the 16-year-old victim had
a boyfriend who may have been responsible for her pregnancy, and
imposing upper term sentences. We affirm the judgment.

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F ACTS AND P ROCEEDINGS
Victim A.
The offenses involving victim A., who was in foster care,
took place at the residence of her aunt, who was defendant’s
girlfriend. Even though A. was not supposed to visit the aunt
because the aunt had a “background,” A. managed to arrange
several weekend visits to her aunt’s crowded, single-story
residence. In addition to defendant and A.’s aunt, the
residence was home to the aunt’s son and daughter, her son’s
fiancé and the fiancé’s sister, as well as defendant’s sister
and her husband. A. slept on a sofa in a lounge room next to
the kitchen.
The offenses occurred during A.’s weekend visit with her
aunt in mid-October 2002. On Sunday morning, sometime before
8:00 a.m., A. went to the kitchen because she was unable to
sleep. Defendant was fixing a drink for A.’s aunt because she
was not feeling well. Defendant gave A. an alcoholic drink,
which she sipped until she felt lightheaded and sick. While A.
was sitting in a chair between the kitchen and living room,
defendant approached her, pulled his penis out, and told her to
touch it. A. could not remember whether she touched defendant’s
penis, but she did recall that defendant thereafter led her to a
back room where she had slept on a couch the night before. At
defendant’s direction, A. laid down on the couch, defendant
covered her with a blanket and she fell asleep.

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The next thing A. knew, the blanket was gone, her pants
were off, and defendant was kissing her neck, breasts and
stomach. A. heard defendant say, “she’s too tight. I need some
Vaseline.” She felt defendant’s penis inside her vagina,
rocking back and forth. She also felt pain in her vaginal area
and told defendant to stop, but could not push him away because
she was feeling weak. Defendant told her to be quiet because
she was “too loud.” When A. looked up at his face, defendant
jumped back in surprise, and left. She passed out.
A. slept all day, awakening in early evening. Her clothes
were disheveled, her panties were bloody, and her vagina hurt
and was bleeding. She decided not to tell anyone what happened
“because it was all surreal to me,” and “I still didn’t know if
it was true.”
A. returned to her aunt’s residence the following weekend.
Despite misgivings, A. did not object when defendant said he
would drive her to her foster home. While en route, defendant
stopped at a self-service carwash, parked, and told A. to kiss
him. When she refused, defendant replied, “well, that’s not
what you were saying the other day.” Defendant asked A. to suck
his penis three times over the course of their half-hour stay,
but she refused each time, and successfully resisted his attempt
to push her head into his lap each time he asked.
When she returned to her foster home, A. told her foster
sister about the two incidents, but the foster sister told her
not to report them because A. was not supposed to be at the
aunt’s house. Six weeks later, A. told her brother’s girlfriend

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about the incidents, and that she thought she was pregnant. The
girlfriend called A.’s cousin, who notified the police.
The parties stipulated that A.’s aunt, if called, would
testify that she told a detective that A. told the aunt that
defendant “had drugged and raped her.” The aunt said she would
further testify that she arrived at her residence at 4:00 a.m.,
the morning of the alleged rape, and found defendant in bed.
When she awoke at 9:00 a.m., defendant was still in bed. The
aunt admitted she had visited with defendant numerous times in
person and by telephone while he was incarcerated for the
offenses.
Defendant was convicted of forcible rape (Pen. Code, § 261,
subd. (a)(2)--count four), rape by use of an intoxicant (id., §
261, subd. (a)(3)--count five), and statutory rape. (Id., §
261.5, subd. (a)--count six.)
Victim M.
On the evening of June 10, 2003, 14-year-old M. was at home
with her 13-year-old girlfriend, while her sister was upstairs
in a bedroom and her mother was around the corner visiting a
friend. Around 11:00 p.m., she heard defendant’s car stop in
front of the house. She recognized defendant as her mother’s
friend of many years, and did not object when he went inside to
use the restroom.
M. laid down on the couch in the living room, and defendant
put a blanket over her and knelt next to her. Defendant was
holding a drink and offered her some, but she refused. They

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talked for about an hour, mostly about songs on the radio.
During their conversation, defendant fondled M.’s left breast
over her clothes, and put his hand under her boxer shorts.
Defendant sent the 13-year-old on errands during this period,
and gave her an alcoholic drink as well. M. eventually gave her
friend a “weird” look, and the friend looked to see what was
amiss, but she could not see where defendant touched M., other
than on her shoulder.
The parties stipulated that M.’s mother would testify that
she left her residence around 10:40 p.m. to visit her friend,
and that later on, a visibly shaken M. arrived at the friend’s
house, yelling for her and telling her that defendant had felt
her breasts and put his hand on her privates after going to the
bathroom and sending her friend out of the room.
The information alleged that defendant committed three lewd
and lascivious acts upon M. (Pen. Code, § 288, subd. (c)(1)--
counts one, two & three.) Two were based on defendant touching
M.’s breasts at different times, and the third was based on
defendant placing his hand down M.’s shorts.
The jury deadlocked on these offenses, which were later
dismissed on the People’s motion.
D ISCUSSION
I
The Motion to Sever Was Properly Denied
On the eve of trial, and relying on evidence substantially
similar to that adduced at trial, defendant moved to sever trial

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of the charges as to each victim on the grounds that the
evidence as to each victim would not be cross-admissible, and
the joinder of two weak cases would violate his right to a fair
trial. The People’s opposition took issue with these
assertions, and the trial court resolved the issue against
defendant.
Defendant argues the court erred because both cases were
weak, the core proof of each incident was not cross-admissible,
the charges were inflammatory, and joinder prejudiced him
because the proof of the crimes involving A. was “minimal and
incredible.” The record is otherwise.
“An accusatory pleading may charge . . . two or more
different offenses of the same class of crimes or offenses,
under separate counts . . . .” (Pen. Code, § 954.) However,
“the court in which a case is triable, in the interests of
justice and for good cause shown, may in its discretion order
that the different offenses or counts set forth in the
accusatory pleading be tried separately or divided into two or
more groups and each of said groups tried separately.” (Ibid.)
Where, as here, the charges in the cases all allege
offenses of the same class, the statutory requirements for
joinder are satisfied, and the defendant can predicate error in
denying severance “only on a clear showing of potential
prejudice.” (People v. Kraft (2000) 23 Cal.4th 978, 1030.) We
review the trial court’s ruling for abuse of discretion, which
we will find only if the ruling falls outside the bounds of
reason. (Ibid.; People v. Osband (1996) 13 Cal.4th 622, 666.)

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“[I]n assessing whether the trial court abused its discretion in
denying severance, we examine the state of the record at the
time of the ruling.” (Kraft, supra, at p. 1032.)
“‘The determination of prejudice is necessarily dependent
on the particular circumstances of each individual case, but
certain criteria have emerged to provide guidance in ruling upon
and reviewing a motion to sever trial.’ [Citation.] Refusal to
sever may be an abuse of discretion where: (1) evidence on the
crimes to be jointly tried would not be cross-admissible in
separate trials; (2) certain of the charges are unusually likely
to inflame the jury against the defendant; (3) a ‘weak’ case has
been joined with a ‘strong’ case, or with another ‘weak’ case,
so that the ‘spillover’ effect of aggregate evidence on several
charges might well alter the outcome of some or all of the
charges; and (4) any one of the charges carries the death
penalty or joinder of them turns the matter into a capital
case.” (People v. Sandoval (1992) 4 Cal.4th 155, 172-173.)
None of those concerns warranted a severance of the
charges. In both cases, the victims were young teenage girls;
defendant was a close friend of the mother of each victim;
defendant attempted to build rapport with each victim; the
sexual assaults were perpetrated on sofas; each victim was under
a blanket during part of the sexual assault; no adults were
present during the assaults; and defendant offered both victims
alcoholic drinks. This evidence was cross-admissible. (Evid.
Code, § 1108, subd. (a); People v. Britt (2002) 104 Cal.App.4th
500, 504-506.) Nor were both cases weak, or one strong and the

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other weak, or likely to inflame the jury. Viewing the matter
from the point where the trial court was called upon to decide
the severance motion, neither case was particularly strong or
weak. Both depended on the credibility of the children
defendant molested, as such cases do. Both reflected some
inconsistencies in the children’s stories, again a common
happening is such cases. Put simply, if the individual victim
was believable, the cases were strong, if not, they were weak.
We cannot say the court allowed two weak cases to be tried
jointly, allowing each to bolster the other.
In any event, even if the trial court’s decision to deny
the severance motion was error--and we do not find that it was--
defendant shows no prejudice. It is apparent the jury was able
to distinguish the evidence and separate its consideration of
the evidence relating to A. from the evidence relating to M. It
did, after all, deadlock in its effort to decide whether
defendant committed the offenses alleged against M. and those
offenses were dismissed. Defendant’s contentions on appeal
relating to the question of severance cannot prevail.
II
The Court Properly Excluded Evidence that A. Had a Boyfriend
Following the rape, A. discovered she was pregnant. She
told a detective that defendant was the father because she had
not had sexual intercourse in the preceding two or three years.
A. underwent a therapeutic abortion, but the aborted fetus was
never recovered. At the People’s request, the court excluded
any evidentiary reference to A.’s pregnancy.

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While A. was preparing to testify, the prosecutor asked why
she had taken six weeks to report the rape to anyone besides her
foster sister. A. responded that she decided to disclose the
rape because she thought she was pregnant. The prosecutor
requested permission to question A. on this point, in order to
explain why she delayed reporting the rape. The court ruled
that A. could testify that she believed she was pregnant, and
told her cousin. The evidence would be admitted solely to show
A.’s state of mind. In response, defendant asserted that A.
accused defendant of rape in order to deflect attention from her
boyfriend, who was the person actually responsible for her
pregnancy. The court refused to permit such inquiry absent a
good faith belief that defendant could prove A. was having sex
with someone else during the relevant time period.
Following a recess, defendant informed the court that his
investigator had just spoken with A., who told him that she
never had sex before defendant raped her. Defendant argued that
these inconsistencies warranted further inquiry into A.’s
relationship with her boyfriend. The court disagreed, and
reiterated its earlier ruling.
The court thereafter read the following admonishment to the
jury: “The victim’s testimony that she believes she was
pregnant may be considered by you as it may relate to her state
of mind and her subsequent actions. This is the only purpose
for which you may consider this evidence, and you are not to
speculate any further on this subject. You’re specifically not
to speculate about whether or not she was actually pregnant.”

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On appeal, defendant renews his contention that the court
should not have admitted any evidence of A.’s pregnancy without
permitting defendant to present evidence that A. had a
boyfriend, especially in light of the inconsistent statements
she made regarding her sexual history. We note, however,
defendant was unable to make a good faith offer of proof that
someone other than defendant caused A.’s pregnancy.
The trial court has discretion under Evidence Code section
352 to exclude evidence if “‘its probative value is
substantially outweighed by the probability that its admission
will (a) necessitate undue consumption of time or (b) create
substantial danger of undue prejudice, of confusing the issues,
or of misleading the jury.’” (People v. Shoemaker (1982)
135 Cal.App.3d 442, 448.) We review rulings pursuant to
Evidence Code section 352 under the abuse of discretion
standard. (People v. Hillhouse (2002) 27 Cal.4th 469, 496.) We
reverse only if the trial court’s ruling was “‘arbitrary,
capricious or patently absurd’” and caused a “‘manifest
miscarriage of justice.’” (People v. Rodrigues (1994) 8 Cal.4th
1060, 1124.) The court acted well within its discretion in
excluding testimony concerning A.’s boyfriend.
Defendant proposes the court’s ruling violated his right to
due process of law because it allowed the jury to infer he was
the father of the aborted fetus, but prevented the jury from
drawing any inference that her boyfriend had impregnated her.
To the extent defendant contends that due process required the
court to allow inquiry regarding A.’s boyfriend, the argument is

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not cognizable because defendant did not object on that basis in
the trial court. (People v. Partida (2005) 37 Cal.4th 428,
438.) To the extent defendant wishes to argue that the court’s
ruling itself violates due process, he is required to show the
ruling made the trial fundamentally unfair. (Ibid.) Since
defendant has not made such a showing, we reject the argument.
Moreover, the trial judge instructed the jury that it could
not consider the evidence for anything other than defendant’s
state of mind at the time, which state of mind explained why she
revealed these incidents when she did. We presume the jury
followed the court’s instructions as it was required to do.
(People v. Cruz (2001) 93 Cal.App.4th 69, 73.) There was no
error.
III
The Upper Term Sentences Are Valid
The court imposed an upper term sentence of eight years for
the forcible rape conviction, which was doubled to 16 years
pursuant to the three strikes law. (Pen. Code, §§ 667, subds.
(b)-(i); 1170.12.) The court imposed concurrent upper term
sentences for the other two convictions, but stayed them
pursuant to Penal Code section 654.
In its statement of reasons for the imposing upper term
sentences, the court cited multiple recidivist aggravating
circumstances, including defendant’s numerous prior convictions
(Cal. Rules of Court, rule 4.421(b)(2)), service of prior prison
terms (Cal. Rules of Court, rule 4.421(b)(3)), probationary
status when the crime was committed (Cal. Rules of Court, rule

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4.421(b)(4)), prior unsatisfactory performance on probation or
parole (Cal. Rules of Court, rule 4.421(b)(5)), and two non-
recidivist aggravating circumstances: the particular
vulnerability of the victims (Cal. Rules of Court, rule
4.421(a)(3)), and taking advantage of a position of trust or
confidence to commit the offenses. (Cal. Rules of Court, rule
4.421(a)(11).)
Defendant argues the trial court imposed the upper term
sentences in violation of his federal constitutional right to
trial by jury, as described in Blakely v. Washington (2004) 542
U.S. 296 [159 L.Ed.2d 403] (Blakely). (See also Apprendi v. New
Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi); United
States v. Booker (2005) 543 U.S. 220, 232-234 [160 L.Ed.2d 621,
643].)
Applying the Sixth Amendment to the Constitution of the
United States, the Supreme Court held in 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. (Apprendi,
supra, 530 U.S. at p. 500 [147 L.Ed.2d at p. 461].) 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 facts.

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(Blakely, supra, 542 U.S. at pp. 302-305 [159 L.Ed.2d at pp.
413-414].)
Relying on these principles, defendant contends the upper
term sentence was unauthorized because the trial court relied on
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.
Defendant concedes the Supreme Court of California rejected
this argument in People v. Black (2005) 35 Cal.4th 1238 (Black),
where it held that “the judicial factfinding that occurs when a
judge exercises discretion to impose an upper term sentence
. . . under California law” (id. at p. 1244) does “not violate a
defendant’s right to a jury trial under the principles set forth
in Apprendi, Blakely, and Booker” (Black, supra, at p. 1254).
We note that a petition for certiorari is pending in Black,
supra, 35 Cal.4th 1238 (cert. pending sub nom. Black v.
California, case No. 05-6793) and the United States Supreme
Court granted certiorari in People v. Cunningham (Apr. 18, 2005,
A103501) [nonpub. opn.], cert. granted sub nom. Cunningham v.
California (2006) 547 U.S. ___ [164 L.Ed.2d 47], which addresses
a similar issue. Oral argument in the latter case was held
October 11, 2006.
Even if we assume, for the sake of argument, that the
federal Supreme Court decides Blakely, Apprendi and Booker apply
to upper term sentences imposed under California’s determinate
sentencing scheme, defendant’s argument still must fail because
the “prior conviction” exception of Apprendi applies not only to

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the fact of a prior conviction, but to “an issue of recidivism
which enhances a sentence and is unrelated to an element of a
crime.” (People v. Thomas (2001) 91 Cal.App.4th 212, 223.) A
narrow reading of the Apprendi language that applies only to the
“‘fact of a prior conviction’” fails to consider the basis for
the exception, and “takes that language out of its context.”
(Thomas, supra, at p. 216.) As Apprendi explained, one reason
for the exclusion of prior convictions from the jury trial
requirement for increased sentences is that the existence of a
prior conviction “‘does not relate to the commission of the
offense.’” (Apprendi, supra, 530 U.S. at p. 488 [147 L.Ed.2d at
p. 454], quoting Almendarez-Torres v. United States (1998) 523
U.S. 224, 244 [140 L.Ed.2d 350, 368].) Another reason may be
traced to the “procedural safeguards attached to any ‘fact’ of
[a] prior conviction.” (Apprendi, supra, at p. 488 [147 L.Ed.2d
at p. 454].) Finally, recidivism “is a traditional, if not the
most traditional, basis for a sentencing court’s increasing an
offender’s sentence.” (Almendarez-Torres, supra, at p. 243 [140
L.Ed.2d at p. 368]; see also Apprendi, supra, at p. 488 [147
L.Ed.2d at p. 454].)
Here, four of the six circumstances the court cited in
support of upper terms are based on defendant’s recidivism and
are unrelated to an element of a crime, and thus validly support
the upper term sentences. Even if we assume that the remaining
two factors are invalid, defendant is not entitled to a
reversal. “The mere fact a trial court erroneously relies upon
certain factors in imposing an upper term does not per se

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require reversal. Reversal is only required where there is a
reasonable probability the trial court would sentence the
defendant differently absent the erroneous factors. [Citation.]
Thus, where the trial court has stated several factors
warranting the upper term, and only some of those factors are
erroneous, the sentence is generally affirmed. [Citations.]
Indeed, even one valid factor is sufficient to justify the upper
term. [Citation.]” (People v. Holguin (1989) 213 Cal.App.3d
1308, 1319.)
Here, there are four valid factors in aggravation and, to
the extent the record suggests the trial court considered
factors that it should not have taken into account, it is not
reasonably probable that the trial court would have sentenced
defendant other than it did had it considered only those factors
relating to recidivism. If that was error, defendant did not
suffer prejudice thereby.
Therefore, pursuant to the pertinent federal Supreme Court
decisions, as well as Black, which we are bound to follow (Auto
Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455),
we reject defendant’s claim of sentencing error.

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D ISPOSITION
The judgment is affirmed.
HULL , J.
I concur:
SIMS , Acting P.J.
I concur except that I concur in the result as to part II.
ROBIE , J.

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