People v. Estrella1/13/2005
INTRODUCTION
Defendant was charged in an amended information with committing five offenses involving domestic violence against his spouse, Alma B. (Alma), on September 3, 2002. These included inflicting corporal injury resulting in a traumatic condition within seven years of a qualifying prior conviction (Pen. Code, § 273.5, subds. (a) & (e), count 1); misdemeanor assault (§ 240, count 2); carjacking (§ 215, subd. (a), count 3); kidnapping (§ 207, subd. (a), count 4); and criminal threats (§ 422, count 6). In the same information, defendant was charged in count 5 with another violation of section 273.5, subdivision (a), based on an August 27, 2002, incident.
It was further alleged that defendant had one serious prior felony conviction (§ 667, subd. (a)(1)) which also qualified as a prior strike conviction (§§ 667, subds. (b)-(i) & 1170.12). The prior conviction was based on defendant's August 14, 2000, guilty plea to aggravated assault (§ 245, subd. (a)(1)), for a 1999 incident when defendant threatened Alma with a knife.
Defendant was acquitted of carjacking (count 3) and found guilty as charged on the remaining counts. In a separate proceeding, defendant admitted the serious prior felony conviction and prior strike conviction. He was sentenced to 21 years, consisting of the upper term of eight years for the kidnapping (count 4), doubled to 16 years based on the prior strike conviction, plus five years for the prior serious felony conviction. Concurrent terms were imposed on the remaining counts.
Defendant appeals. First, he contends the trial court erred in refusing to accept his stipulation, for purposes of count 1, that he had a prior conviction within the meaning of section 273.5, subdivision (e). The People agree, but argue the error was harmless. We agree with the People. Second, defendant contends, and the People and we agree, that the assault conviction in count 2 must be reversed because it is a lesser included offense to the spousal abuse conviction in count 1.
Third, defendant contends the trial court had a duty to instruct the jury on lesser included offenses in counts 4, 5, and 6. We disagree because there was insufficient evidence that defendant committed the lesser included offenses but not the greater. Fourth, defendant contends the trial court erred in failing to give a unanimity instruction on the criminal threats charge (count 6), because the evidence showed he made more than one criminal threat. We conclude that a unanimity instruction was not required because the prosecutor relied on a specific threat to prove count 6.
Fifth, defendant contends his concurrent sentences on counts 1, 2, and 6 violate section 654. We agree because there was no substantial evidence that defendant had separate, independent objectives in committing each crime. Sixth, defendant contends and we agree that the abstract of judgment must be corrected to show the five-year enhancement was imposed under section 667, subdivision (a)(1), not section 667.5, subdivision (b).
In a supplemental brief, defendant contends that his Sixth Amendment right to a jury trial was violated, because the trial court imposed the upper term of eight years on count 4 (the kidnapping conviction), based on aggravating circumstances not found true by a jury beyond a reasonable doubt. (Blakely v. Washington (2004) 524 U.S. ___ [124 S.Ct. 2531; 159 L.Ed.2d 403] (Blakely).) We reject defendant's Blakely claim, because we conclude that a trial court may impose an upper term, under California's determinate sentencing law (§ 1170 et seq.), based on aggravating factors found true by the trial court by a preponderance of the evidence.
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