NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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1 Filed 8/30/07 P. v. Scott CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule (a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule (b). This opinion has not been certified for publication or ordered published for purposes of rule IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR THE PEOPLE, Plaintiff and Respondent, v. MARKELL SCOTT et al., Defendants and Appellants. A (Alameda County Super. Ct. Nos. C & C148890) A jury convicted defendants Markell Scott and Willie Ramsey of multiple offenses committed during a home invasion. Defendants challenge their convictions and prison sentences. We affirm the convictions and Scott s sentence but remand Ramsey s case for resentencing on a limited issue. I. FACTS On January 2, 2004, just after midnight, defendants Markell Scott and Willie Ramsey burglarized a young family s Oakland home looking for a safe. Defendants beat two women in the home and, when no safe was found, robbed the women of their personal belongings. Defendant Ramsey raped one of the women. 1

2 Testimony of alleged victims In January 2004, Tan., 23 years old, lived in an Oakland apartment with her husband and two young children, a daughter age 7 and a son who was 11 months old. 1 On New Year s Day 2004, Tan. s female cousin, Marn., age 25, was visiting Oakland for the weekend. Marn. stayed at the apartment while Tan. and her family went to visit Tan. s mother-in-law for the day. Tan. and her family returned about 11:00 p.m. Tan. sent her daughter to bed, and her husband Al left the apartment to get cigarettes and food. Tan. took her hair down and was preparing to take a shower when there was a knock at the door. It was shortly after midnight. Tan. thought her next door neighbor, A. Hardley, was knocking at the door. Tan. s family and Hardley often socialized, and it was not unusual for Hardley to come over late at night. Tan. went to the bathroom to start her shower, and told Marn. to answer the door. Marn. answered the door, and saw defendants Scott and Ramsey. Defendant Scott is Hardley s brother, and was familiar to Marn. 2 Scott sometimes stayed with Hardley, and Marn. had met Scott once or twice. Marn. did not know defendant Ramsey, but Scott introduced him as a friend. Scott asked to speak to Al, and Marn. said Al had just left. Scott responded that he saw Al leave. Marn. thought Al and Scott spoke about Scott coming over, and she let Scott and Ramsey into the apartment. Tan. had started the shower water running, then heard male voices in the apartment. Tan. called into the living room and asked Marn. who was there. She heard a man answer it s Main. Tan. did not recognize the name. Still dressed, she walked into the living room and saw that Main was defendant Scott, whom she knew as her 1 Abbreviated first names are used to protect the identity of persons reporting sex crimes. (Pen. Code, [all further section references are to this code, except as noted].) 2 Hardley testified: Scott is my half brother or something like that. He s my sister s brother. Hardley refers to Scott as her brother, so we do. 2

3 neighbor Hardley s brother. 3 Scott had not visited Tan. s apartment previously but she knew both Scott and his wife from several other meetings at the apartment building. Tan. returned to the bathroom and showered. Marn. sat down with Scott and Ramsey on the living room couch. The three watched television and talked about their New Year s Day activities. Scott asked for a glass of water, and Marn. went to the kitchen and returned with it. Scott took the glass, drank the water, and put the glass back in the kitchen. Scott came back to the living room, and the three continued a friendly conversation on the couch. Scott then stood up and walked toward the front door. Scott then suddenly told Marn.: give up the money. Marn. was confused. She testified that she looked at him, like, what are you talking about? Scott punched Marn. in the face and said: we re jackers, give us the motherfucking money. Marn. screamed, and Scott pinned her back to the rear of the couch with his knee to her chest. Scott demanded that Marn. tell him where the safe was, and kept repeating the demand. Marn. told him she did not know anything about a safe. Meanwhile, Tan. in the shower heard a loud fearful scream. Tan. got out of the shower and was still naked when defendant Ramsey pushed open the bathroom door. Ramsey demanded that Tan. show him the safe, and she gave him a surprised look. Like, are you serious? Ramsey punched her extremely hard in the face, splitting her lip. Ramsey grabbed Tan. by the arm and dragged her to the living room. Tan. s daughter came out of the children s bedroom and Tan. ordered the girl back. The girl quickly returned to her room and locked the door. In the living room, defendants continued to demand money. Defendant Scott told defendant Ramsey that Tan. was the one who lives here and told Ramsey to ask her about the safe. Ramsey took Tan. into the kitchen, punched her, and had her open all the cabinets and drawers. Ramsey then took Tan. into her bedroom and made her empty her 3 Hardley refers to her brother Scott by his first name, Markell, or the nickname Kell. 3

4 closet and dresser while looking for a safe. Ramsey punched her again, and kept asking for the safe, for the money. Tan. told him she did not have anything. Ramsey said well, you re going to give up something. Ramsey, who was wearing gloves, removed one glove and unbuckled his pants. Ramsey dropped his pants, put Tan. on the bed, pushed her legs up, and inserted his penis into her vagina. Tan. did not resist because she was afraid. Defendant Scott came into the bedroom with Marn. and they saw Ramsey raping Tan. Scott said and did nothing. Marn. cried. After a couple minutes, Ramsey pulled away from Tan. and she ran over to Scott, touched his shoulder and asked him to please tell Ramsey that the women did not have any money. Scott told her, in a nasty voice, don t touch me. In the bedroom, defendants Scott and Ramsey continued to ask the women for the safe, and Ramsey punched Marn. in the face. Ramsey removed a metal crowbar from his pants pocket and swung it at Marn. s head. Marn. put up her arms to defend herself and the blows fell on her arms and the back of her head. Defendant Scott, referring to Marn., said: Fuck it, we ll just take her. Scott put Tan. in the closet and forced her to stay inside. Defendants left the bedroom with Marn. and went to the living room. Tan. waited a second to be sure defendants left the room, then she ran out, grabbed a cordless telephone, and ran back into the closet to call 911. Tan. called from the closet because she was afraid defendants would catch her on the telephone. Tan. reached a police dispatcher and said robbers were in the house, but the call disconnected. In the living room, defendants grabbed a portable stereo, Marn. s purse with money, and Tan. s wedding ring that she placed on a table before showering. The defendants ran out the front door, leaving Marn. behind. The stereo had been plugged into the wall, where the cordless telephone base was also plugged in. When Tan. came out of the bedroom, she discovered that the telephone had been unplugged when the stereo was removed. She plugged the telephone back in, the police dispatcher called back, and Tan. explained what happened. 4

5 Testimony of defendant Scott s sister Hardley, defendant Scott s sister, testified that Scott and Ramsey had been at her apartment earlier in the evening, along with Scott s wife. Scott and Ramsey said they were stepping out for something to eat, and Ramsey told Hardley to keep Scott s wife at Hardley s apartment. About ten minutes later, Hardley saw Scott and Ramsey drive by the apartment complex, but they did not return to her apartment. Hardley heard rumbling coming from Tan. s apartment and suspected foul play. Hardley heard Tan. say, in a pleading manner, whatever you want. Hardley feared Tan. was being robbed. Hardley tried to listen to what was going on next door but Scott s wife prevented her by making loud noises. Hardley then heard her brother Scott s voice and his wife ran from Hardley s apartment. Hardley came out of her apartment and asked Tan. and Marn. what happened. Tan. was in a towel and in total shock. Marn., with blood running down her face, said they raped my cousin. Police testimony On January 2, 2004, the police received an emergency call at 12:48 a.m. that was disconnected. The police dispatcher classified the call as an unknown disturbance. Following another call, the dispatcher classified the incident as a rape. A recording of the 911 calls was played for the jury. A transcript of the calls shows Tan. saying: [t]hese guys who live next door to me... came over after my husband left and are trying to rob us. Later, Marn. comes onto the telephone and says she has blood on her face and [t]hey came in the house and they just beat [her] up and raped Tan. Oakland police officer Ross Tisdell arrived at the scene and found Tan. crying and emotional. Tan. had a bloody lip, and told the officer that Main did it, and that the man with the gloves raped her. Marn. looked traumatized to the officer; she had injuries to her face and just stood and stared blankly without saying anything. Tan. s husband came home, and he was [v]ery angry and upset. The husband asked Officer Tisdale: [W]hy aren t you doing anything. Why aren t you going to get this person? The officer explained that he needed more information. 5

6 Officer Tisdell asked Tan. to walk [the officer] through the scene and tell [him] what happened. Tan. was shaking pretty good and still in tears The officer testified: She offered a lot of information. I d say what happened, and then she would go on. She d go on from there and kind of tell me the whole story. The officer, in walking through the apartment, saw that the kitchen cabinets and drawers were open. The bedroom closet doors and dresser drawers were also open, and there were blood stains on the bedroom door. The bedroom looked ransacked and the bed covers were ruffled. Tan. was transported to Highland Hospital for a rape examination, and Officer Tisdale took a statement from her at the hospital. The police interview began about two hours after Tan. was attacked, and lasted almost an hour. Tan. provided a detailed physical description of her assailants. Tan. identified defendant Scott by name, as Main, as well as by physical description. Tan. described her other attacker by a physical description that included the pattern of his boxer shorts. Officer Tisdale testified that, in subsequent contacts with Tan., she never changed her description of the assailants from her initial description. Later in the investigation, Marn. contacted the police about a drinking glass and, five days after the incident, the police collected the glass from Marn. and had it tested for fingerprints. A fingerprint examiner identified a fingerprint on the glass as defendant Scott s. The prosecutor argued that the glass with Scott s fingerprint was the glass he drank from when he was first admitted into Tan. s apartment. Six days after the incident, the police recovered Tan. s stereo speakers from the residence of defendant Scott s wife. Tan. and Marn. were separately shown photographic lineups of defendants Scott and Ramsey. The women identified defendants as the assailants. Medical testimony A physician s assistant at Highland Hospital testified that his examination of Tan. found significant tenderness on the labia minora posterior fourchette, which is the area most likely to be injured in a sexual assault. The examiner opined that the absence of cuts or lacerations in the vaginal area was not unusual because Tan. was menstruating 6

7 and that can act as lubrication. No sperm was found, which was consistent with Tan. s report that the rapist did not ejaculate. Marn. went to Kaiser Hospital for treatment the morning after the incident. Her medical records were admitted in evidence. The records include Marn. s statements to medical personnel that she was hit by a crowbar, and a physician s notes describing the treatment Marn. received. The defense Defendants Scott and Ramsey presented no witnesses in their defense. Scott s attorney argued to the jury that the prosecutor had overcharged the case and that Scott was not guilty of burglary because Scott had no intent to steal when he entered the apartment, and was not guilty of rape because Scott did not assist in the crime. The attorney conceded that Scott was in the apartment, and robbed the women. Ramsey s attorney argued there was insufficient evidence identifying Ramsey as an assailant and, alternatively, that there was insufficient evidence of certain elements for some of the charged crimes and enhancements. Verdict The jury found defendant Scott guilty of first degree residential burglary ( 459, 460, subd. (a) [count one]); first degree robbery of Tan. and Marn. ( 211, 212.5, subd. (a) [counts two and three]); false imprisonment of Tan. ( 236, 237, subd. (a) [count five lesser included offense]); and false imprisonment by violence of Marn. ( 236, 237, subd. (a) [count six]). The jury found Scott not guilty of forcible rape while acting in concert ( 261, subd. (a)(2), [count four]) and false imprisonment by violence of Tan. ( 236, 237, subd. (a) [count five]). The jury found defendant Ramsey guilty of first degree residential burglary ( 459, 460, subd. (a) [count one]); first degree robbery of Tan. ( 211, 212.5, subd. (a) [count two]), first degree robbery of Marn. with personal use of a deadly weapon ( 211, 212.5, subd. (a), 12022, subd. (b)(1) [count three]), and forcible rape of Tan. that was perpetrated in the course of a burglary ( 261, subd. (a)(2), 460, subd. (a), , subds. (e)(2) [count four lesser included offense]). The jury found Ramsey not guilty of 7

8 forcible rape while acting in concert ( [count four]). The jury also rejected allegations that Ramsey inflicted great bodily injury during the burglary and robberies. ( , subd. (a).) Sentencing Defendant Scott admitted a prior serious felony conviction (robbery). ( 667, subds. (a)(1) & (e), , subd. (c)(1).) The court sentenced Scott to an aggregate 17- year term: an upper term of 6 years for burglary (count one), doubled to 12 years under the three strikes law, and enhanced by 5 years for the prior conviction. ( 459, 460, subd. (a), 461, subd. (1), 667, subd. (a)(1), , subd. (c)(1).) Terms on the remaining counts were made concurrent. Ramsey was sentenced to an indeterminate term of 15 years to life for forcible rape committed during a burglary (count four). ( , subds. (b), (c)(1) & (e)(2).) The court set an additional, aggregate determinate term of 7 years, 8 months calculated as follows: the middle term of 6 years for forcible rape (count four), 1 year, 4 months (one third the middle term) for robbery (count three), plus 4 months (one third the enhancement term) for weapon use during the robbery. ( 211, 213, subd. (a)(1)(b), 261, subd. (a)(2), 264, subd. (a), , subd. (a), 12022, subd. (b)(1).) Terms on the remaining counts were made concurrent. II. DISCUSSION Defendant Scott raises multiple claims on appeal: (1) the trial court erred in admitting evidence that Scott s fingerprint was on a drinking glass because there was insufficient evidence that the glass was the same one used by the assailant during the burglary; (2) the trial court admitted improper hearsay evidence through police testimony and hospital records, and some of that evidence violated Scott s constitutional right to confront witnesses against him; (3) Scott was wrongly denied a jury trial on his prior strike conviction; (4) concurrent prison sentences for robbery and false imprisonment should be stayed because Scott s sentence for burglary was based on the same course of 8

9 conduct; and (5) the judge s imposition of an upper term for burglary violated Scott s right to a jury trial. Defendant Ramsey joins with Scott in challenging the admission of hearsay evidence. Ramsey also claims that the court erred in imposing both an indeterminate life term and a determinate term for the rape conviction. The People concede that the trial court erred in sentencing Ramsey but dispute all other claims of error. We discuss each claim in turn. Fingerprint evidence Defendant Scott claims the trial court erred in admitting evidence that Scott s fingerprint was on a drinking glass because there was insufficient evidence that the glass was the same one used by the assailant during the burglary. In describing the incident, Marn. testified that a man she new as the neighbor Hardley s brother came to the house with another man he introduced as his friend. Marn. gave Hardley s brother a glass of water. Hardley s brother and his friend later demanded money and brutalized the women. After the incident, Marn. contacted the investigating police officer and arranged to deliver a drinking glass to the police. The police found defendant Scott s fingerprint on the glass. The prosecutor argued to the jury that Scott s fingerprint on the glass, along with other evidence, placed Scott in the apartment on the night of the crime. At trial, Scott moved to strike the fingerprint evidence as irrelevant because Marn. never testified that the glass she gave to the police was the same glass used by the assailant. On appeal, Scott argues that the lack of evidence linking the glass given to the police with the glass used by the assailant constitutes a break in the chain of custody that made the fingerprint evidence inadmissible. In a chain of custody claim, [t]he burden on the party offering the evidence is to show to the satisfaction of the trial court that, taking all the circumstances into account including the ease or difficulty with which the particular evidence could have been altered, it is reasonably certain that there was no alteration. [ ] The requirement of reasonable certainty is not met when some vital link in the chain of possession is not accounted for, because then it is as likely as not that the evidence analyzed was not the 9

10 evidence originally received. Left to such speculation the court must exclude the evidence. [Citations.] Conversely, when it is the barest speculation that there was tampering, it is proper to admit the evidence and let what doubt remains go to its weight. [Citations.] (People v. Diaz [(1992)] 3 Cal.4th [495] at p. 559; see also Méndez, Cal. Evidence (1993) 13.05, p. 237 [ While a perfect chain of custody is desirable, gaps will not result in the exclusion of the evidence, so long as the links offered connect the evidence with the case and raise no serious questions of tampering ].) The trial court s exercise of discretion in admitting the evidence is reviewed on appeal for abuse of discretion. (County of Sonoma v. Grant W. (1986) 187 Cal.App.3d 1439, 1448.) (People v. Catlin (2001) 26 Cal.4th 81, 134. Here, the chain of possession is not wholly accounted for because Marn. was not asked at trial if the glass she gave to the police was the same glass used by the assailant. The implication, of course, is that it was the same glass. The investigating police officer testified that Marn. telephoned him concerning an item of potential evidentiary value. Another police officer went to see Marn., and told her he was there to pick up some evidence from a sexual assault that occurred. Marn. presented the glass to the officer in a zippered plastic bag. Taking all the circumstances into account, it appears reasonably certain that the glass Marn. preserved in a zippered plastic bag is the same glass used by the assailant. Defendant Scott challenges this conclusion, and argues that the glass could have come from his sister Hardley s apartment, which was broken into the day after the crimes at issue here. The argument rests on bare speculation. There was no evidence that Marn. was involved in the break-in of Hardley s apartment, and no evidence that a glass was missing from that apartment. In any event, any error in admitting the fingerprint evidence was harmless. An error in the admission of evidence is reversible only if it is reasonably probable that a result more favorable to the defendant would have been reached in the absence of the error. (People v. Cooper (1991) 53 Cal.3d 771, 836, citing People v. Watson (1956) 46 Cal.2d 818, 836.) The identification of defendant Scott as one of the assailants through his fingerprints was largely superfluous given overwhelming evidence identifying Scott 10

11 as the perpetrator. Both of the victims were well acquainted with Scott as a neighbor s brother, and had no hesitation in recognizing him and later identifying him to the police. Scott s own sister placed him at the scene of the burglary, and stolen property was recovered from the residence of Scott s wife. Given this powerful identification evidence, the defense never disputed Scott s presence in Tan. s apartment. In closing argument to the jury, Scott s trial attorney conceded that Scott entered the apartment but denied that Scott had formed the intent to steal when he entered. The claim by defendant s appellate attorney that the fingerprint evidence was crucial in establishing defendant s identity and guilt is belied by the record. It is not reasonably probable that a result more favorable to the defendant would have been reached had the fingerprint evidence been excluded. Hearsay Defendants Scott and Ramsey maintain that the trial court allowed impermissible hearsay into evidence, and that some of the evidence violated the constitutional right to confront witnesses against them. (Evid. Code, 1200; Crawford v. Washington (2004) 541 U.S. 36 (Crawford).) Specifically, defendants challenge the following evidence: (1) a police communications supervisor testified that the incident report created by a police dispatcher initially classified the subject incident as a 415-C, or unknown disturbance and, after a call back, classified the incident as a 261, or rape; (2) Police Officer Tisdale testified that he asked Tan. to walk him through the scene and tell him what happened and Tan. pointed to the bed, offered a lot of information, and told him the whole story ; (3) Officer Tisdale testified that the rape victim s husband asked the officer Why aren t you going to get this person? ; (4) Officer Tisdale testified that Tan. provided a detailed physical description of the suspects and the officer recounted that description; and (5) Marn. s hospital records were admitted that included Marn. s statements to her treating physician that she was hit by a crowbar. Defendants assert that all of the listed evidence was inadmissible hearsay, and that police testimony about the dispatcher s classification of the 911 calls and Tan. s husband s statement violated 11

12 defendants confrontation right because the police dispatcher and husband did not testify at trial. We conclude that all of the evidence was properly admitted. (1) Police dispatcher classification of 911 call The police dispatcher s classification of the 911 calls was admissible under the business record exception to the hearsay rule. (Evid. Code, 1271.) The incident report classifying the calls was a trustworthy and contemporaneous writing made in the regular course of business authenticated by a qualified witness. (Ibid.) Defendants argue that the business record exception should not apply because the dispatcher s classification was itself reliant upon the hearsay statements of the victims calling the police. But the victims statements reporting robbers in the house and rape were spontaneous declarations also excepted under the hearsay rule. (Evid. Code, 1240.) Defendant s argument that evidence of the dispatcher s classification of the 911 calls violated their right to confront witnesses against them is likewise unavailing. The police dispatcher was not a witness against them. Witnesses are those who bear testimony. (Crawford, supra, 541 U.S. at p. 51.) The confrontation clause is concerned solely with hearsay statements that are testimonial. (Davis v. Washington (2006) U.S., 126 S.Ct. 2266, 2276 (Davis); People v. Cage (2007) 40 Cal.4th 965, 984.) The term testimonial applies to prior testimony at a preliminary hearing, before a grand jury or at a former trial; and to police interrogations (Crawford, supra, at p. 68) when there is no ongoing emergency and the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. (Davis, supra, at pp ) Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. (Davis, supra, at p ) A 911 caller seeking police assistance is not acting as a witness, and the caller s statements to the dispatcher are thus admissible without violating a defendant s right to confront witnesses. (Ibid.) Likewise, a dispatcher s statements, such as her classification of an emergency call for police assistance, is admissible. A 911 dispatcher s purpose is to enable police assistance to 12

13 meet an ongoing emergency. (Davis, supra, at p ) The dispatcher s classification of a request for police assistance informs the responding officers of the nature of the call and the situation they may encounter. The classification is not testimonial. The trial court therefore did not err in admitting testimony that the dispatcher classified the incident first as an unknown disturbance, then as a rape. In any event, admission of the police dispatcher s classification of the 911 calls was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18.) A recording of the 911 calls was played for the jury and, on appeal, defendants do not challenge the admission of that evidence. (Davis, supra, 126 S.Ct. at pp [911 caller s statements admissible].) The dispatcher s classification of the incident as a rape was cumulative given the recording in which Marn. expressly says: We re at Tan. s house. We re at the house. They came in the house and they raped Tan. and they beat me up. Omission of the police dispatcher s classification of the incident would not have altered the outcome of the trial. (2) Officer s testimony that victim told him the whole story Police Officer Tisdale s testimony that Tan. pointed to the bed, offered a lot of information, and told him the whole story was not hearsay. Hearsay is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated. (Evid. Code, 1200, subd. (a).) Here, the only statement made by Tan. referenced by Officer Tisdale was her arguably assertive conduct of pointing to the bed. (Evid. Code, 225; People v. Jurado (2006) 38 Cal.4th 72, 129.) The remainder of the police officer s testimony was a summarization of the nature of the conversation (Tan. offered him information and told the whole story) that did not relate Tan. s actual statements. Even if the officer s testimony did constitute evidence of out-of-court statements, the statements were not offered to prove the truth of the matter stated. Officer Tisdale s testimony was offered to prove that certain things were said or done, not to prove these things were true. The point of the testimony was that the officer responded to the scene 13

14 of a reported crime, contacted the alleged victim, and received information that started an investigation. The testimony was not hearsay. (3) Officer s testimony that victim s Husband asked: Why aren t you going to get this person? Officer Tisdale testified that the victim s husband asked the officer Why aren t you going to get this person? Defendants did not object at trial to this testimony, thus forfeiting any challenge to admission of the husband s statement. (Evid. Code, 353, subd. (a).) Defendants appellate challenges are, in any event, meritless. The testimony was not hearsay because the husband s statement was not offered for the truth of the matter stated. (Evid. Code, 1200, subd. (a).) The testimony was offered to demonstrate that the victim s husband was [v]ery angry and upset and ready to get into a physical confrontation with the police, which explained why the police left the scene for a few minutes before continuing to investigate the reported crime. Such an explanation was necessary given the opening statement of defendant Scott s attorney, which questioned why the police left the scene if a crime had occurred. Admission of the husband s statement did not implicate the right to confront witnesses because the statement was not hearsay, and not testimonial. (People v. Cage, supra, 40 Cal.4th at pp. 975, fn. 6, 984.) The husband s statement was an angry outburst over perceived police inactivity when responding to an emergency situation; it was not a statement made in response to structured police interrogation meant to establish or prove past events potentially relevant to later criminal prosecution. (Davis, supra, 126 S.Ct. at pp ) (4) Officer s testimony recounting victim s description of crime suspects Officer Tisdale testified that he interviewed Tan. at the hospital and she provided a detailed physical description of the suspects, which the officer recounted. Defendants do not have a confrontation clause challenge to this testimony because they had an opportunity to cross-examine Tan. at trial. (People v. Cage, supra, 40 Cal.4th at p. 978, fn. 7.) Defendants do, however, claim that the police testimony was inadmissible hearsay. It was not. The testimony was properly admitted to establish Tan. s prior 14

15 consistent statements in identifying the assailants. (Evid. Code, 791, 1236.) Defendant Scott s attorney, on cross-examination, suggested that Tan. s trial testimony was inconsistent with her police statement, and defendant Ramsey s attorney, in his opening statement, questioned the credibility of Tan. s identification of Ramsey from a photographic line-up two weeks after the incident. Tan. s detailed, prior identification on the day of the incident was properly admitted to support her credibility. (5) Hospital records Similarly, Marn. s statement to her treating physician about how she sustained her injuries was admissible as a prior consistent statement. (Evid. Code, 791, 1236.) Any error is admitting this portion of the medical records was harmless anyway. The challenged portion of the medical records concerns Marn. s report that she was hit with a crowbar a report of the events upon which Marn. was thoroughly examined and crossexamined as a witness at trial. The medical records were cumulative, and their exclusion would not have changed the verdict. Defendant Scott s sentence (1) Bifurcated trial of the prior strike conviction Defendant Scott claims he was wrongly denied a jury trial on his prior strike conviction. Trial of the prior conviction allegation had been bifurcated from the other charges, and the jury was mistakenly discharged after rendering its guilty verdict in the case in chief without submitting to the jury the determination of the truth of the alleged prior conviction. We conclude that Scott, by failing to object to discharge of the jury, forfeited his statutory right to have the jury that returned the guilty verdict determine the truth of the alleged prior conviction. ( 1025, subd. (b); People v. Saunders (1993) 5 Cal.4th 580, (Saunders).) We also reject Scott s claim that the double jeopardy clause of the constitution guaranteed him the right to have the truth of the prior conviction allegation determined by the same jury that considered the current offenses. (U.S. Const., 5th Amend.; Saunders, supra, at pp ) The People alleged that defendant Scott was convicted in 1996 of second degree robbery, and served a prison term on the conviction, which subjected Scott to both a five- 15

16 year enhancement and a doubled base term if convicted of the currently charged crimes. ( 667, subd. (a)(1), , subd. (c)(1).) Scott moved to bifurcate trial on the case in chief from the prior conviction allegation, and the court granted the motion. The jury was impaneled on October 19, 2005 and retired for deliberations in the case in chief on November 9, The jury rendered its verdict on Monday, November 14, The judge who presided over the trial (Judge Burr) was away from court when the jury returned with its verdict, and another judge (Judge Hymer) received the verdict. The verdict was read and the jurors individually polled. The court thanked the jurors and discharged them. At the time the jurors were discharged, defendants counsel made no request that the jury be retained for trial of the prior conviction allegation. On November 28, 2005, defendant Scott s counsel moved to dismiss the prior conviction allegation on grounds that he was wrongly denied trial of the allegation by the same jury that tried the case in chief, and that trial by another jury would violate his constitutional right against double jeopardy. (U.S. Const., 5th Amend.; 1025, subd. (b).) Judge Burr, who had presided over the trial, acknowledged that the substitute judge dismissed the jury after it rendered its verdict on the substantive charges before there was any discussion on the prior conviction allegation. However, Judge Burr expressed his understanding that the substitute judge had asked Scott s counsel, after the jury was discharged but before the jury left the building, whether the defense wanted the jurors brought back to deal with the issue of the prior. Scott s counsel conceded that the substitute judge could have invited a request for [him] to do that and [he] didn t do that. Judge Burr denied the motion to dismiss the prior conviction allegation, and offered to impanel another jury to try the allegation. Scott declined the offer, waived his right to a jury trial, and admitted the truth of the prior conviction allegation. This case is indistinguishable from Saunders, supra, 5 Cal.4th 580, in which the California Supreme Court rejected claims equivalent to those made here. In Saunders, prior conviction allegations were bifurcated from trial of the substantive charges. (Id. at p. 586.) The jury found the defendant guilty of burglary and the trial court discharged the jury as substitute defense counsel stood mute. (Ibid.) When appointed defense counsel 16

17 returned to court and learned that the jury had been discharged without an express waiver of jury trial on the prior conviction allegations, counsel moved to dismiss the allegations. (Id. at pp ) The trial court denied the motion, a new jury was impaneled, and the allegations were found true. (Id. at p. 587.) The Supreme Court in Saunders affirmed the judgment upon holding that (1) the trial court violated section 1025 by discharging the jury before the jury had determined the truth of the alleged prior convictions but defendant s failure to object at the time of discharge precludes his obtaining appellate relief on the basis of the statutory error committed by the trial court (Saunders, supra, 5 Cal.4th at p. 589); (2) defendant was not denied his right to a jury trial regarding the truth of the alleged prior convictions by being tried by another jury than the one that returned the verdict on the substantive offense (id. at p. 590, fn. 5); and (3) the conduct of further trial proceedings as to the alleged prior convictions did not place defendant twice in jeopardy because the earlier, bifurcated trial on the substantive charges did not put defendant at risk that the jury would find true the prior conviction allegations (id. at pp ). Saunders governs here. Defendant failed to object when the jury was discharged and, when offered the opportunity to recall the jury still present in the courthouse, defendant declined. Defendant thus forfeited his statutory right to have the same jury that returned the verdict on the substantive offenses also determine the truth of the alleged prior conviction. ( 1025, subd. (b); Saunders, supra, 5 Cal.4th at pp ) Contrary to his claim on appeal, defendant was not denied a jury trial on the prior conviction allegations. While he forfeited his statutory right to trial by the same jury that considered the case in chief, the trial court offered to impanel another jury to determine the truth of the prior conviction allegation. He expressly waived that right, and admitted the truth of the prior conviction. Finally, there was no violation of constitutional protections against double jeopardy. The truth of defendant s prior conviction was not at issue in the bifurcated case in chief and thus he was never twice put in jeopardy for the same offense. (Saunders, supra, 5 Cal.4th at pp ) 17

18 (2) Section 654 Defendant Scott argues that the trial court was required to stay (rather than make concurrent) his terms for robbery and false imprisonment because his sentence for burglary was based on the same course of conduct. The Penal Code prohibits multiple punishment for [a]n act or omission that is punishable by different provisions of the code. ( 654.) While defendant was sentenced to concurrent, not consecutive sentences, section 654 still applies because the defendant is deemed to be subjected to the term of both sentences although they are served simultaneously. (People v. Cruz (1995) 38 Cal.App.4th 427, 434, italics omitted.) But section 654 does not preclude defendant Scott s multiple punishment given his multiple objectives in committing the crimes. Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one. (Neal v. State of California (1960) 55 Cal.2d 11, 19.) Multiple punishment is permissible if appellant entertained multiple criminal objectives which were independent of and not merely incidental to each other. [Citation.] A defendant s criminal objective is determined from all the circumstances and is primarily a question of fact for the trial court, whose findings will be upheld on appeal if there is any substantial evidence to support it. (People v. Braz (1997) 57 Cal.App.4th 1, 10.) The evidence supports the finding of multiple objectives. It is true, as defendant argues, that a defendant cannot be punished for both burglary and robbery where there was a single objective and the burglary was the means of perpetrating the intended robbery. (People v. James (1977) 19 Cal.3d 99, 120.) Here, however, there were multiple consecutive objectives. Defendants entered the apartment with the intent and objective of stealing money from a safe, thus committing burglary. Defendants beat the women in an effort to extract information on the location of the safe, without success because there was no safe. Defendant Ramsey then formed a new objective. Defendant Ramsey verbalized this independent, consecutively formed objective when he told Tan. 18

19 that, since there was no safe, she would have to give up something. Ramsey then raped Tan., without any opposition from Scott. Following the rape, and having failed in their initial objective of stealing money from a safe, defendants decided to leave the apartment. On their way out, defendants exploited a newly presented opportunity to steal personal property. Scott was dragging Marn. through the living room when he told Ramsey to grab a stereo that was near the front door. Scott then threw Marn. against the wall and Ramsey hit her in the head with a crowbar. Defendants stole the stereo, along with Tan. s wedding ring and Marn. s purse and ran out the front door. The robbery was independent of defendants initial objective when entering the apartment. Likewise, the false imprisonment was not incidental to the burglary. In arguing otherwise, defendant Scott focuses exclusively upon the restraint placed upon the victims when defendants first entered the apartment looking for a safe. As detailed above, however, there is evidence that defendants objectives changed after entry into the apartment. Defendants did, initially, hold the women against their will to extract information on the location of the safe. But when it became clear that there was no safe, defendants abandoned their initial objective. Defendant Ramsey raped Tan., and defendants formed a new plan. Defendant Scott put Tan. in the closet and held her there as she struggled to get out. Referring to Marn., Scott said Fuck it, we ll just take her and dragged her away. The restraint of Tan. in the closet and grabbing of Marn. were not incident to the burglary. The objective of the burglary was to steal money from a safe, and that objective had failed. Defendants then formed a new objective, and defendant Scott was properly punished for that separate criminal objective. (3) Imposition of upper term for burglary The court sentenced defendant Scott to an aggregate 17 year term: an upper term of 6 years for burglary, doubled to 12 years under the three strikes law, and enhanced by 5 years for a prior serious felony conviction. ( 459, 460, subd. (a), 461, subd. (1), 667, subds. (a)(1) & (e), , subd. (c)(1).) Terms on the remaining counts for robbery and false imprisonment were made concurrent. 19

20 California s determinate sentencing law (DSL) generally specifies three terms of imprisonment. (Cunningham v. California (2007) U.S., 127 S.Ct. 856, 863 (Cunningham).) First degree burglary is punishable by imprisonment for two, four, or six years. ( 461, subd. 1.) At the time of defendant Scott s sentencing, the DSL directed the sentencing court to start with the middle term, and to move from that term only when the court finds itself and places on the record facts whether related to the offense or the offender beyond the elements of the charged offense. 4 (Cunningham, supra, at p. 863.) The probation report listed multiple circumstances in aggravation of the crime, and none in mitigation. The circumstances in aggravation were [t]he crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness or callousness ; the victims were particularly vulnerable ; [t]he manner in which the crime was carried out indicates planning, sophistication, or professionalism ; the defendant took advantage of a position of trust or confidence to commit the offense ; the defendant has served a prior prison term and [t]he defendant s prior performance on probation or parole was unsatisfactory. (Cal. Rules of Court, rule (a)(1), (a)(3), (a)(8), (a)(11), (b)(3) & (b)(5).) In sentencing defendant to the upper term, the trial court stated that it had read and considered the probation report. The trial court, in its comments, focused upon the facts relating to the crime and did not mention aggravating facts concerning defendant and his criminal past. The trial judge looked at the nature of the burglary and found several things that really scream[ed] out at him. The judge noted the egregious nature of this crime, defendant Scott s leadership role in instigating it, the purposeful targeting of the apartment when the occupants were known to be home and the household would be 4 Our Legislature recently amended the DSL effective March 30, (Stats. 2007, ch. 3, 2, p. 4 (Sen. Bill No. 40).) References to the DSL, and sentencing rules promulgated under it, are to the law as it read prior to those amendments. 20

21 most vulnerable, the exploitation of defendant s status as a neighbor to gain entry, and the terrorization of the women victims. On appeal, defendant claims he was wrongly denied a jury trial on facts used by the trial court to sentence him to an upper term for burglary. The United States Supreme Court recently held that the middle term of California s triad sentencing system is the maximum sentence that may be imposed by a judge unless an aggravating factor is proved to the jury beyond a reasonable doubt or is established by the defendant s admissions or prior convictions. (Cunningham, supra, 127 S.Ct. 856 at pp ) The People argue that there was no Cunningham violation here because the probation report listed aggravating facts relating to defendant s criminal past (serving a prison term and unsatisfactory performance on parole), and there is no right to a jury trial on the fact of a prior conviction or recidivism generally. (Id. at pp. 860, 868.) A recent decision of the California Supreme Court firmly supports the People s argument. (People v. Black (2007) 41 Cal.4th 799 (Black II).) In Black II, our high court affirmed an upper term prison sentence after reconsidering the sentence in light of Cunningham, supra, 127 S.Ct. 856, following remand from the United States Supreme Court. (Black II, supra, at pp ) The court held that so long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury. (Id. at p. 813, italics in original.) Consistent with the Sixth Amendment, there are two types of aggravating facts that may be used to impose an upper term without a jury determination of those facts. First, a fact admitted by the defendant may be used to increase his or her sentence beyond the maximum authorized by the jury s verdict. [Citation.] Second, the right to jury trial and the requirement of proof beyond a reasonable doubt do not apply to the aggravating fact of a prior conviction. (People v. Sandoval (2007) 41 Cal.4th 825, 21

22 62 Cal.Rptr.3d 588, 596.) The Sixth Amendment does not include the right to a jury determination on the fact that prior convictions occurred, or other related issues that may be determined by examining the records of the prior convictions. (Black II, supra, at p. 819 & fn. 8.) In Black II, the California Supreme Court affirmed an upper term sentence where a sentencing brief and probation report listed, as an aggravating circumstance, that defendant Black s prior convictions were numerous or of increasing seriousness. (Black II, supra, 41 Cal.4th at p. 818 & fn. 7; Cal. Rules of Court, rule (b)(2).) The determinations whether a defendant has suffered prior convictions, and whether those convictions are numerous or of increasing seriousness [citation], require consideration of only the number, dates, and offenses of the prior convictions alleged. The relative seriousness of these alleged convictions may be determined simply by reference to the range of punishment provided by statute for each offense. This type of determination is quite different from the resolution of issues submitted to a jury, and is one more typically and appropriately undertaken by a court. [Citation.] (Black II, supra, at pp ) The comments of the sentencing court in Black II focused upon the circumstances of the crime rather than defendant s recidivism. (Black II, supra, 41 Cal.4th at pp. 807, 816.) Nevertheless, the upper term was authorized where the sentencing court said it considered not only the circumstances of the crime but also the other aggravating circumstances set out in the district attorney s sentencing brief, and that brief included the aggravating circumstance that defendant s prior convictions are numerous or of increasing seriousness. (Id. at p. 818.) The probation report, which the trial court was presumed to have read, provided a full account of defendant s convictions. (Id. at p. 818 & fn. 7.) The California Supreme concluded that imposition of the upper term was thus supported by sufficient evidence of defendant s prior convictions. (Ibid.) The presence of that one aggravating circumstance, for which there is no right to a jury trial, made defendant eligible for the upper term. (Id. at p. 816.) The court s concurrent reliance upon the nature of the crime in its selection of the upper term was not a Cunningham 22

23 violation. A trial court is free to exercise its discretion in selecting the appropriate term from among those authorized for the defendant s offense. (Ibid.) [I]mposition 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. (Ibid.) Here, defendant Scott s criminal history likewise established an aggravating circumstance that rendered him eligible for the upper term sentence. The probation report, expressly considered by the trial court in reaching its sentencing decision, noted that defendant has served a prior prison term. 5 (Cal. Rules of Court, rule (b)(3).) The fact that defendant served a prior prison term may be readily determined by examining the record of his prior conviction, and Scott makes no effort on appeal to deny his prior incarceration. It is immaterial that the sentencing court, when imposing the upper term, made additional factual findings about the nature of the crime unrelated to Scott s prior conviction and prison term. (Black II, supra, 41 Cal.4th at p. 816.) [A]s long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with Sixth Amendment principles, any additional fact finding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant s right to jury trial. (Id. at p. 812, italics in original.) The upper term was properly imposed. Defendant Ramsey s sentence Ramsey was sentenced to an indeterminate term of 15 years to life for forcible rape committed during a burglary (count four). ( , subds. (b), (c), (e)(2).) The court imposed an additional, aggregate determinate term of 7 years, 8 months calculated as follows: the middle term of 6 years for forcible rape (count four), 1 year, 4 months 5 The probation report also noted that defendant s performance on parole was unsatisfactory. (Cal. Rules of Court, rule (b)(5).) Our finding that defendant s prior prison term subjected him to the upper term obviates any need to address whether defendant s parole history was a recidivism factor that justified an upper term. 23