P. v. Zepeda

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Filed 11/1/07 P. v. Zepeda 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Butte)
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THE PEOPLE,
Plaintiff and Respondent,
v.
CECELIA ANTIONETTE ZEPEDA,
Defendant and Appellant.
C053912
(Super. Ct. No. CM024049)
Defendant Cecelia Antionette Zepeda entered a negotiated
plea of guilty to dissuading a witness by force or threat (Pen.
Code, § 136.1, subd. (c)(1)--count 6)1 and being an accessory
after the fact (§ 32--count 7), and was sentenced to an
aggregate term of four years eight months in state prison,
consisting of the upper term of four years on count 6, and a
consecutive eight months (one-third the middle term) on count 7.
On appeal, defendant claims (1) the trial court erred in
refusing to stay her sentence on count 7 under section 654; (2)
imposition of the upper term on count 6 violates the Sixth
1 Undesignated statutory references are to the Penal Code.

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Amendment under Cunningham v. California (2007) 549 U.S. ___
[166 L.Ed.2d 856] (Cunningham); and (3) the trial court erred in
imposing the upper term by relying in part on two facts that are
elements of one of the offenses to which she pleaded guilty.2 We
shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND3
Defendant’s brother was a suspect in two shootings that
left a father paralyzed and his 17-year-old son dead. A few
days after the shootings, defendant drove her brother from
California to her home in Oregon, where he lived for the next
year or so. Defendant “was not cooperative or forthright during
the investigative process” and “threatened witnesses and their
families . . . if they provided information to law enforcement
about” the shootings.
DISCUSSION
I
At the sentencing hearing, defendant argued her sentence on
count 7 (being an accessory after the fact) must be stayed
pursuant to section 654 because “the facts in this case are
2 This court previously determined defendant did not need a
certificate of probable cause to raise the section 654 and
Cunningham issues on appeal. (See Jan. 25, 2007 order denying
application to seek belated certificate of probable cause in
trial court.)
3 The facts are taken from the probation report, which defendant
stipulated could be used to establish the factual basis for her
plea.

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interrelated. As far as the dissuading [a witness by force or
threat] and the accessory after a fact, you can’t segregate them
out.” The People disagreed, explaining that the accessory after
the fact offense “constitutes a whole course of conduct and not
threats. That course of conduct involves removing [herself] and
her brother, the suspect, from California to Oregon, and also
then lying to the police.” The trial court agreed and denied
defendant’s request to stay her sentence, explaining that the
accessory after the fact offense “is a whole course of conduct,
not just threats that are encompassed in” the dissuading a
witness offense.
On appeal, defendant argues the trial court erred in
refusing to stay her sentence on count 7 (being an accessory
after the fact) because it arose out of the same course of
conduct as the dissuading a witness offense and was guided by
the same intent and objective--“help[ing] her brother . . .
escape justice.” We disagree.
Section 654, subdivision (a) provides in relevant part that
“[a]n 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.”
Although section 654, subdivision (a) literally proscribes
only multiple punishment for multiple convictions arising from a
single “act or omission,” it has been extended to a “course of

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criminal conduct wherein multiple violations are incident to an
accused’s single criminal objective.” (People v. Beamon (1973)
8 Cal.3d 625, 638.) However, “a course of conduct divisible in
time, although directed to one objective, may give rise to
multiple violations and punishment.” (Id. at p. 639, fn. 11,
italics added.) “Thus, a finding that multiple offenses were
aimed at one intent and objective does not necessarily mean that
they constituted ‘one indivisible course of conduct’ for
purposes of section 654.” (People v. Kwok (1998) 63 Cal.App.4th
1236, 1253.) “This is particularly so where the offenses are
temporally separated in such a way as to afford the defendant
opportunity to reflect and to renew his or her intent before
committing the next one, thereby aggravating the violation of
public security or policy already undertaken.” (People v. Gaio
(2000) 81 Cal.App.4th 919, 935.)
Whether the crimes constitute an indivisible course of
conduct is a question of fact for the trial court, and its
findings will not be disturbed on appeal if they are supported
by substantial evidence. (People v. Osband (1996) 13 Cal.4th
622, 730-731.)
Here, there is substantial evidence to support a finding
that defendant’s course of conduct was divisible in time.
Indeed, defendant “does not dispute . . . that she both
threatened witnesses and helped her brother move to Oregon or
that she may have had time to reflect.” Because the record
reflects, and defendant concedes, that the acts that constituted

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the offenses of dissuading a witness and being an accessory
after the fact were separated by periods of time in which
reflection was possible, the court did not err in failing to
stay defendant’s sentence on count 7 (being an accessory after
the fact) pursuant to section 654. (People v. Gaio, supra,
81 Cal.App.4th at p. 935; People v. Kwok, supra, 63 Cal.App.4th
at p. 1253.)
II
Defendant claims the trial court’s decision to impose “the
upper term for count 6 violated [her] Sixth Amendment right to a
trial by jury because it was based on factual determinations
that [the court] itself made by a preponderance of the evidence
rather than those that a jury made beyond a reasonable doubt.”
We disagree.
The United States Supreme Court held in Cunningham, supra,
549 U.S. at page ___ [166 L.Ed.2d at p. 873] that under
California’s determinate sentencing law, the middle term is the
statutory maximum which a judge may impose solely based on the
facts reflected in the jury verdict or admitted by the
defendant. Thus, except for a prior conviction, any fact that
increases the penalty for a crime beyond the middle term must be
tried to the jury and proved beyond a reasonable doubt.
(Cunningham, at p. ___ [166 L.Ed.2d at p. 873], overruling
People v. Black (2005) 35 Cal.4th 1238 (Black I) on this point,
vacated sub nom. Black v. California (2007) 549 U.S. ___
[167 L.Ed.2d 36].)

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Applying Cunningham, in People v. Black (2007) 41 Cal.4th
799, 816 (Black II), our Supreme Court recently 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.”
As a preliminary matter, we reject the People’s assertion
that defendant forfeited the issue because she did not raise it
in the trial court. Defendant was sentenced on October 5, 2006.
Before that, on June 20, 2005, our Supreme Court had decided
Black I, which held that a defendant does not have a right to
have a jury determine aggravating factors used to impose the
upper term. (35 Cal.4th at p. 1244.) Black I was controlling
law at the time of defendant’s sentencing. Defendant was not
required to make a futile objection. It is pointless to require
a defendant to ask a trial court to overrule a decision of the
California Supreme Court. (Moradi-Shalal v. Fireman’s Fund Ins.
Companies (1988) 46 Cal.3d 287, 292, fn. 1.)
Turning to the merits, in deciding to impose the upper term
on count 6 (dissuading a witness), the trial court cited the
following “[c]ircumstances in aggravation” “as proven by a
preponderance of the evidence”: “threat of great bodily harm,
threatened witnesses who might cooperate with law enforcement, a
course of planning and prior planning that indicates criminal

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sophistication, and [defendant] was on probation at the time of
these offenses.”
As noted above, “the right to a jury trial does not apply
to the fact of a prior conviction.” (Black II, supra,
41 Cal.4th at p. 818.) A defendant’s probationary status falls
within the prior conviction exception. (Cf. United States v.
Corchado (10th Cir. 2005) 427 F.3d 815, 820; United States v.
Fagans (2d Cir. 2005) 406 F.3d 138, 141-142.) Indeed, in Black
II, the court rejected the defendant’s contention that “a jury
must determine whether [his prior convictions] are numerous or
increasingly serious” (41 Cal.4th at p. 819), explaining that
such a determination “require[s] consideration of only the
number, dates, and offenses of the prior convictions alleged,”
which “is ‘quite different from the resolution of issues
submitted to a jury, and is one more typically and appropriately
undertaken by a court’” (id. at p. 820). A similar undertaking
is required to ascertain a defendant’s probationary status.
Moreover, defendant was not entitled to have her probationary
status proved beyond a reasonable doubt. (Ibid., fn. 9.)
Accordingly, the trial court’s reliance on defendant’s
probationary status did not run afoul of the Sixth Amendment.
The trial court’s reliance on additional factors is of no
consequence. A defendant’s constitutional right to a jury trial
is not violated by the trial court’s imposition of the upper
term sentence where at least one aggravating factor was
established by means that satisfy the requirements of the Sixth

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Amendment. (Black II, supra, 41 Cal.4th at pp. 815-816.)
Because defendant’s probationary status renders her eligible for
the upper term, she “was not legally entitled to the middle
term, and [her] Sixth Amendment right to [a] jury trial was not
violated by imposition of the upper term sentence” on count 6
(dissuading a witness). (Black II, at p. 820.)4
DISPOSITION
The judgment is affirmed.
BUTZ , J.
We concur:
SIMS , Acting P.J.
HULL , J.
4 Because we conclude defendant’s probationary status rendered
her eligible for the upper term, we need not address her
additional contention that the trial court erred in imposing the
upper term by relying in part on two facts (other than her
probationary status) that are elements of one of the offenses to
which she pleaded guilty.

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