People v. Towne

186 P.3d 10

78 Cal.Rptr.3d 530

44 Cal.4th 63

The PEOPLE, Plaintiff and Respondent, v. Shawn TOWNE, Defendant and Appellant.

No. S125677.

Supreme Court of California.

June 26, 2008.

Suzan E. Hier, Los Angeles, under appointment by the Supreme Court, for Defendant and Appellant.

John T. Philipsborn, San Francisco, and Charles D. Weisselberg for California Attorneys for Criminal Justice as Amicus Curiae on behalf of Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Manuel M. Medeiros, State Solicitor General, Donald E. de Nicola, Deputy State Solicitor General, Robert R. Anderson and Dane R. Gillette, Chief Assistant Attorneys General, Pamela C. Hamanaka, Assistant Attorney General, Jaime L. Fuster, Lawrence M. Daniels, Kristofer Jorstad and Chung L. Mar, Deputy Attorneys General, for Plaintiff and Respondent.

GEORGE, C.J.

Defendant Shawn Towne was charged with multiple offenses ranging from kidnapping and robbery to "joyriding," but was convicted of only the last offense. He contends that imposition of the upper-term sentence on that offense violated his Sixth Amendment right to a jury trial on facts that were used to increase his sentence above the statutory maximum, as that right has been interpreted in Cunningham v. California (2007) 549 U.S. 270, 127 S.Ct. 856, 166 L.Ed.2d 856 (Cunningham). We conclude the aggravating circumstance that a defendant served a prior prison term or was on probation or parole at the time the crime was committed may be determined by a judge and need not be decided by a jury. In addition, the aggravating circumstance that a defendant's prior performance on probation or parole was unsatisfactory may be determined by a judge, so long as that determination is based upon the defendant's record of one or more prior convictions.

Defendant also contends that in imposing sentence, the trial court is prohibited by federal constitutional principles and state law from making findings of fact that are inconsistent with the jury's verdict acquitting the defendant on other counts. We conclude that because facts considered by the court in selecting the appropriate sentence within the available sentencing range need not be proved beyond a reasonable doubt, a trial court, in this setting, is not prohibited from considering evidence underlying charges of which a defendant has been acquitted.

I.

In the very early morning hours of April 1, 2002, defendant was engaged in male prostitution activity. Noe Arana picked him up on a street corner in Hollywood. Arana testified that he stopped at two hotels to which he was directed by defendant, but the two men did not check into either one. After driving for some time, Arana decided to head toward the San Fernando Valley to find a room, because he was more familiar with that area. During the drive, defendant fell asleep. Arana drove to an area off the freeway, where he stopped the car and tapped defendant on the shoulder. Arana testified defendant "just went crazy" after being awakened, and began hitting him. The two men struggled, eventually falling to the ground outside the car. Arana testified he was frightened and got into the driver's seat of the car to escape, but defendant removed the keys from the ignition. Defendant told Arana he intended to tie him up and take his car. Defendant then bound Arana's hands and got into the driver's seat.

Defendant drove with Arana, stopped several times, made phone calls, and searched through the car. According to Arana, defendant demanded money and took Arana's wallet. Arana gave defendant the personal identification numbers for his credit cards, which were in the wallet. Eventually defendant stopped at a convenience store and left the vehicle to use an automatic teller machine. Defendant told Arana not to move or he would kill him. Arana took the threat seriously and was frightened, but he managed to untie his hands and fled. He ran to a nearby condominium complex where he knocked on doors, telling residents that he had been kidnapped, his car had been stolen, and they should summon the police. One of the residents testified at trial that when Arana came to her door, he appeared to be frantic and terrified for his life. She called 911 at his request.

Later, about 10:15 a.m., a Los Angeles police officer responded to a stolen vehicle tracking-system alert and pulled over Arana's vehicle. Defendant exited from the vehicle, put his hands in the air, and said, "This car is stolen. I had nothing to do with it, but my friend stole it." After police officers took defendant into custody, he stated: "This car is a friend's. I'm going to meet him right now in the valley. Some guy beat me up this morning in the car in Orange County, and I'm going to the nearest police station to report that some guy beat me up. I'm the victim here." Arana's sunglasses, wallet, and jacket were missing from his car.

Defendant testified in his own defense. Consistent with Arana's version of the events, he testified that as they drove and looked for a room, he fell asleep in Arana's car. According to defendant, however, when he awakened Arana was on top of him, strangling him with a cell phone recharger cord. When the fight ended, defendant tried to call 911 on his cell phone but the call did not go through. Defendant testified that Arana promised not to "try anything stupid" and offered to let defendant tie his hands. Arana sat in the car and put his hands out the window so that defendant could tie them. Defendant testified that Arana apologized and said he did not intend to kill defendant. Defendant drove, making several stops, and untied Arana's hands before going into a store to buy drinks for both of them. Defendant asserted that Arana offered to pay him $400 not to report the incident to the police and gave him his credit cards with the personal identification numbers. Defendant went into the convenience store to use the automatic teller machine. When he looked back, he saw that Arana no longer was in the car. Defendant eventually drove the car home. Thereafter, he telephoned the registered owner of the car and was in the process of driving it back to the valley to return it when he was arrested.

Defendant was charged with carjacking (Pen.Code, § 215, subd. (a)),¹ kidnapping (§ 207, subd. (a)), second degree robbery (§ 211), grand theft of an automobile (§ 487, subd. (d)), making criminal threats (§ 422), kidnapping to commit carjacking (§ 209.5, subd. (a)), kidnapping to commit robbery (§ 209, subd. (b)(1)), and "joyriding" (Veh. Code, § 10851, subd. (a)). The information alleged that defendant previously had been convicted of violating Vehicle Code section 10851, making him subject to increased punishment on the grand theft and joyriding charges. (Veh.Code, § 10851, subd. (e); Pen.Code, § 666.5, subd. (a).) The information also alleged, as to all counts, that defendant had three prior felony convictions, making him ineligible for probation (§ 1203, subd. (e)(4)); that defendant had three prior convictions for which he had served a prison term and had failed to remain free of custody or of another felony conviction for five years following those terms, making him subject to a sentence enhancement of one year for each separate prison term previously served (§ 667.5, subd. (b)); that defendant previously had been convicted of robbery, a serious felony, making him subject to a five-year sentence enhancement on any current serious felony conviction (§ 667, subd. (a)(1)); and that defendant previously had been convicted of robbery, a serious felony within the meaning of the "Three Strikes" law, subjecting him to a doubling of any determinate term imposed for a current felony conviction (§§ 667, subd. (e)(1), 1170.12, subd. (c)(1)).

The jury acquitted defendant on the first seven counts and found him guilty only on count 8, felony joyriding in violation of Vehicle Code section 10851, subdivision (a). Defendant waived his right to a jury trial on the special allegations and admitted all the alleged prior convictions, including two that resulted in separate prison terms.

The punishment prescribed for a person convicted of violating Vehicle Code section 10851 who previously has been convicted of a felony violation of that section is two, three, or four years. (Veh.Code, § 10851, subd. (e); Pen.Code, § 666.5, subd. (a).) The probation report recommended the high term based upon the absence of any mitigating factors and the presence of the following five aggravating factors:

(1) Defendant had engaged in a pattern of violent conduct, indicating he posed a serious danger to society. (Cal. Rules of Court, rule 4.421(b)(1).)

(2) Defendant had served prior prison terms. (Rule 4.421(b)(3).)

(3) Defendant's prior performance on probation or parole was unsatisfactory. (Rule 4.421(b)(5).)

(4) Defendant's prior convictions as an adult were numerous and of increasing seriousness. (Rule 4.421(b)(2).)

(5) Defendant was on parole when the crime was committed. (Rule 4.421(b)(4).)

The court sentenced defendant to four years in state prison, the upper term for a violation of Vehicle Code section 10851 for a person with a prior conviction for the same offense, a term that was doubled under the Three Strikes law because of defendant's prior robbery conviction, for a total term of eight years. The court selected the upper term based upon (1) its conclusion that the crime itself was aggravated because the victim was afraid for his life, and (2) defendant's lengthy criminal history. The court noted it believed that both defendant and the victim had testified falsely on some matters, but it was convinced, based upon the testimony of other witnesses, that the victim had been terrified.

In the Court of Appeal defendant argued, among other points, that the trial court abused its discretion in imposing the upper term based upon factual findings by the court that conflicted with the jury's findings. Specifically, the...