P. v. Hughes

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Filed 1/08/08 P. v. Hughes 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Modoc)
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THE PEOPLE,
Plaintiff and Respondent,
v.
CARL DEWAYNE HUGHES,
Defendant and Appellant.
C053742
(Super.Ct. No. F05026)
A jury convicted defendant Carl Dewayne Hughes of the
continuous sexual abuse of Shannon D. (Pen. Code, § 288.5;
undesignated section references are to this code). The court
sentenced defendant to state prison for the upper term of 16
years.
Defendant appeals. He contends the trial court’s
imposition of the upper term contravenes Blakely v. Washington
(2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely) and Cunningham
v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856]
(Cunningham), requiring remand for resentencing. We disagree
and will affirm.

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A detailed recitation of the facts underlying the offense
are not necessary in view of defendant’s contention on appeal.
Suffice it to say that between 1997 and 1999, defendant molested
his girlfriend’s daughter when she was 13 and 14 years old. The
conduct included touching, sexual intercourse, oral copulation
and one incident of sodomy. In a pretext call, the victim spoke
about defendant taking her virginity and he said, “Yeah. . .
well I really love you honey doll.” At trial, defendant
testified and denied all sexual conduct claimed by the victim.
DISCUSSION
Defendant contends that the trial court’s imposition of the
upper term contravened Blakely/Cunningham in that the court
relied on aggravating factors which were neither admitted by
defendant nor found true by a jury. We conclude that defendant
was subject to the upper term based on his felony probationary
status and his prior felony conviction so no Blakely/Cunningham
error occurred.
Background
At sentencing, the court stated that it had considered the
probation report and the report of Dr. Caruso who evaluated
defendant pursuant to section 288.1. The probation report
recommended that the court deny probation and impose the upper
term of 16 years. In aggravation, the probation report cited
the following: the crime involved numerous acts which displayed
a high degree of callousness, the victim was especially
vulnerable, defendant held a position of trust, defendant
threatened to harm the victim’s mother if the victim ever told

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anyone, and defendant was on probation at the time of the
offense.
The probation report reflects that “[a]ccording to the
Department of Justice,” defendant was convicted in Florida in
1993 of third degree burglary and theft, both felonies, granted
four years probation and violated the same by leaving the state.
He was convicted in California in 1997 of a misdemeanor
violation of section 273, subdivision (d) (paying parent for
adoption of child).
The prosecutor concurred with the probation report, adding
that defendant’s conduct exceeded the minimum required under
section 288.5, that is, he committed more than three acts in a
90-day period. The prosecutor also noted that although
defendant’s prior criminal history was not lengthy, he did have
a prior felony conviction in Florida and was convicted of
endangering the welfare of a child.
The court noted the substantial sexual conduct and found no
unusual circumstances to warrant a grant of probation. In
imposing the upper term of 16 years, the court agreed with the
prosecutor and the probation report’s factors in aggravation,
including “the victim’s vulnerability, the position of trust
that was violated, the fact that the defendant at the time of
committing these offenses was on a felony probation, grant of
felony probation[,] . . . [¶] . . . I think there is the
intimidation he[re], vis-à-vis the threats made regarding harm
to the victim’s mother in order to elicit at least, I think, the
victim [to] remain silent in terms of reporting things. I view

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that as an aggravating factor. [¶] On balance, I think it is
difficult here to find any significant mitigating factors. If
anything, I think that the one thing that I could potentially
find as mitigating, and find as mitigating, although there is a
previous felony, in relative terms the defendant does have a
relatively insignificant criminal record, and certainly I don’t
see any record having to do with the nature of the crime that we
are dealing with today. But on balance I will find that the
aggravating factors outweigh the mitigating factors.”
Analysis
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] (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
factfindings, there is a right to a jury trial and proof beyond
a reasonable doubt on the additional facts. (Blakely, supra,
542 U.S. at p. 303-304 [159 L.Ed.2d at pp. 413-414].)
Cunningham recently reaffirmed its holdings in Blakely and

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Apprendi, rejecting the contrary holding in People v. Black
(2005) 35 Cal.4th 1238 (Black I). (Cunningham, supra, 549 U.S.
at pp. ___, ___ [166 L.Ed.2d at pp. 868, 873, 876].)
People v. Black (2007) 41 Cal.4th 799 (Black II) held that
“imposition of the upper term does not infringe upon the
defendant’s constitutional right to jury trial so long as one
legally sufficient aggravating circumstance has been found to
exist by the jury, has been admitted by the defendant, or is
justified based upon the defendant’s record of prior
convictions.” (Id. at p. 816.) In Black II, a jury convicted
the defendant of continuous sexual abuse of a child and two
counts of lewd and lascivious conduct with a child. In
connection with the continuous sexual abuse count, the jury
found true two allegations relevant to probation or a suspended
sentence, that is, the offense was committed with force,
violence, duress, menace and fear of injury and that the
defendant had engaged in substantial sexual conduct. (Id. at
pp. 806-807.) In imposing the upper term for the continuous
abuse offense, the trial court cited the nature, seriousness and
circumstances of the offense, noting the use of force on many
occasions, victim vulnerability, abuse of a position of trust
and the infliction of emotional and physical harm. (Id. at p.
807.) “The trial court stated that it considered not only the
circumstances of the crime but also the other aggravating
circumstances set out in the district attorney’s sentencing
brief” which included the factor that defendant’s prior
convictions were numerous and increasingly serious. The

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probation report set forth defendant’s criminal history. (Id.
at p. 818.) Black II concluded that the “defendant’s
constitutional right to a jury trial was not violated by the
trial court’s imposition of the upper term sentence for his
conviction of continuous sexual abuse” because “the ‘statutory
maximum’ sentence to which defendant was exposed by the jury’s
verdict was the upper term, . . .” (Id. at p. 816.) The trial
court’s citation of the nature of the offense, specifically
noting the use of force, was supported by the jury’s probation
ineligibility finding (force, violence, duress, menace, and fear
of injury) and rendered the defendant eligible for the upper
term for the continuous sexual abuse offense. (Id. at pp. 816-
818.) Black II also concluded that the trial court’s reliance
upon the defendant’s criminal history by reference to the
prosecutor’s sentencing brief in imposing sentence for the
continuous sexual abuse offense was an additional aggravating
factor which rendered the defendant eligible for the upper term.
(Id. at pp. 818-820.)
Here, although the trial court erred in considering the
victim’s vulnerability, defendant’s violation of a position of
trust and defendant’s threats to harm the victim’s mother in
order to maintain the victim’s silence (Cunningham, supra, 549
U.S. ___ [166 L.Ed.2d 856], defendant was eligible for the upper
term based on the trial court’s finding that defendant was on
felony probation at the time of the offense. The trial court
cited defendant’s probationary status at the time of the offense

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which qualifies as a recidivism factor. Black II, supra, 41
Cal.4th at pages 818 to 820 determined that the “fact of a prior
conviction” broadly construed encompasses a defendant’s criminal
history as reflected in records of the prior convictions.
Further, in finding defendant’s prior criminal history to be
“relatively insignificant,” the trial court found that defendant
had previously been convicted of a felony offense.
Defense appellate counsel questions whether defendant was
on felony probation at the time of the offense, citing
defendant’s testimony at trial and the probation report. At
trial, defendant admitted that he had been to prison in Florida.
He had been on probation for “robb[ing] the motel” but later
stated it was a burglary. He was uncertain whether his 1993
conviction was for a felony or a misdemeanor. He also pleaded
no contest to misdemeanor corporal injury to a child. Defense
appellate counsel cites a page of the probation report which
recounts defendant’s explanation of how he violated probation
granted in the Florida case, that is, he left the state without
permission, was arrested in Oregon in 1999, returned to Florida
and served six months in prison “in lieu of additional four (4)
years probation.”
Defense appellate counsel fails to mention the probation
report’s list of defendant’s criminal convictions and
dispositions. By the time sentencing occurred, the probation
officer clarified that defendant had two felony convictions in

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1993 in Florida and he was on probation when the current
offenses occurred (between 1997 and 1999).
No Blakely/Cunningham error occurred.
DISPOSITION
The judgment is affirmed.
MORRISON , J.
We concur:
BLEASE , Acting P.J.
ROBIE , J.

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