People v. Beaudoin1/4/2005
because his rapes by use of drugs do not qualify as a rape committed by "force, violence, duress, menace or fear," a factual predicate for sentencing under Penal Code section 667.6. We disagree.
Penal Code section 667.6, subdivision (c), authorizes a court to impose a full, separate and consecutive prison term "for each violation of . . . paragraph (2), (3), (6), or (7) of subdivision (a) of [Penal Code] Section 261, paragraph (1), (4), or (5) of subdivision (a) of Section 262, Section 264.1, subdivision (b) of Section 288, Section 288.5 or subdivision (a) of Section 289, of committing sodomy in violation of subdivision (k) of Section 288a, or of committing sodomy or oral copulation in violation of Section 286 or 288a by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person whether or not the crimes were committed during a single transaction." (Italics added.)
Penal Code section 667.6, subdivision (d), contains a similar provision, except that subdivision (d) mandates the court impose a consecutive sentence "if the crimes involve separate victims or involve the same victim on separate occasions." (Pen. Code, § 667.6, subd. (d).)
Years ago, this court determined the phrase "by force, violence, duress, menace or threat of great bodily harm," as the statute read then, modified only the references to Penal Code sections 286 and 288a. (People v. Foley (1985) 170 Cal.App.3d 1039, 1051-1052.) By expressly listing Penal Code section 261, subdivision (a)(3), in the statute, the Legislature determined that particular crime, along with the other crimes so listed, were all acts accomplished against the victim's will. (Ibid.) For those enumerated crimes, the court has power under Penal Code section 667.6, subdivisions (c) and (d), to impose the separate consecutive terms without the jury separately finding the crimes were committed by force or duress. The Legislature has already made that finding. The trial court committed no error here in imposing sentence under Penal Code section 667.6.
V. Sentencing to Upper and Consecutive Terms
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.) For this purpose, the statutory maximum is the maximum sentence 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 findings of fact, there is a right to a jury trial and proof beyond a reasonable doubt on the additional facts. (Blakely v. Washington, supra, 542 U.S. at p. ___ [159 L.Ed.2d at pp. 413-414] (Blakely).)
Relying on Apprendi and Blakely, defendants claim the trial court erred in imposing the upper terms on their convictions for rape by use of drugs because the court relied upon facts not submitted to the jury and proved beyond a reasonable doubt, thus depriving them of their constitutional rights to a jury trial on facts legally essential to the sentence.
The contention fails. The trial court imposed the upper terms based, in part, on defendants' prior criminal convictions. (Cal. Rules of Court, rule 4.421(b)(2).) As an adult, Beaudoin was convicted for possessing a knife on school grounds, obstructing a peace officer, carrying a concealed weapon in a vehicle, theft, battery, burglary, and violations of parole. He was also
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