THE PEOPLE, Plaintiff and Respondent, v. LEO CLEVELAND, Defendant and Appellant.
No. B139266
Second Dist., Div. Seven
Feb. 27, 2001
87 Cal.App.4th 263
Stephen Temko, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Carol Wendelin Pollock, Assistant Attorney General, Victoria Bedrossian and Darryl C. Hottinger, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
WOODS, J.—In Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435], the Supreme Court held that any fact that increases the penalty for a crime beyond the prescribed statutory maximum for the crime must be submitted to a jury and proved beyond a reasonable doubt. In view of Apprendi, Leo Cleveland contends the issue of whether under
Cleveland‘s contentions lack merit. In our view, section 654 does not run afoul of the rule announced in Apprendi. The question of whether section 654 operates to “stay” a particular sentence does not involve the determination of any fact that could increase the penalty for a crime beyond the prescribed statutory maximum for the underlying crime. In any event, had the section 654 “intent and objective” determination been sent to the jury, we conclude it would have reached the same conclusion. The jury, as did the court, would have refused to stay Cleveland‘s robbery sentence. Accordingly, we affirm.
FACTUAL AND PROCEDURAL HISTORY
Cleveland slept in the crawl space behind the apartment building where 66-year-old John Freeman lived.
Freeman, who was feeble and had difficulty walking, on one occasion gave Cleveland some money and asked him to go to the store to buy Freeman a pack of cigarettes. When Cleveland returned with the change, Freeman allowed him to keep it. Cleveland, however, wanted more money, and became angry when Freeman declined to give him any.
On the evening of August 23, 1998, Cleveland knocked on the apartment door of Freeman‘s neighbors, Axle and Oscar Cardenas. Cleveland asked Axle Cardenas for a loan or some money. When Cardenas refused him, Cleveland left. A short time later, Cleveland returned with a package of steaks and asked if Cardenas wanted to buy them. Cardenas declined the offer. Cleveland appeared unhappy, but nonetheless left. Cleveland went next door to Freeman‘s apartment and asked Freeman if he wanted to buy the steaks. Freeman also declined.
A few minutes later, Axle Cardenas saw Cleveland attempting to remove Freeman‘s walker from Freeman‘s apartment. Cardenas confronted Cleveland and Cleveland became angry, but left the walker and appeared to leave the premises.
Cleveland was arrested and charged with attempted murder, robbery and assault with a deadly weapon. In addition to various weapons enhancements, Cleveland was also charged with having suffered three prior “strike” convictions.
The jury found Cleveland guilty on all three counts. After waiving his right to a jury trial on the prior conviction allegations, the court found two of the three prior strike allegations to be true. The court sentenced Cleveland to a total of 54 years to life in state prison, consisting of 29 years to life on the attempted murder conviction and a consecutive sentence of 25 years to life on the robbery count. Over Cleveland‘s objection, the court refused to “stay” his robbery sentence under section 654, but did “stay” his sentence on the assault with a deadly weapon conviction.
Cleveland appeals.
DISCUSSION
The Trial Court Did Not Err in Imposing Separate Consecutive Sentences on Cleveland‘s Attempted Murder and Robbery Convictions Under Section 654.
Section 654 precludes multiple punishment for a single act or indivisible course of conduct punishable under more than one criminal statute. Whether a course of 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. (Neal v. State of California (1960) 55 Cal.2d 11, 19 [9 Cal.Rptr. 607, 357 P.2d 839].) If all of the offenses are incident to one objective, the court may punish the defendant for any one of the offenses, but not more than one. (People v. Perez (1979) 23 Cal.3d 545, 551 [153 Cal.Rptr. 40, 591 P.2d 631].) If, however, the defendant had multiple or simultaneous objectives, independent of and not merely incidental to each other, the defendant may be punished for each violation committed in pursuit of each objective even though the violations share common acts or were
As a general rule, the sentencing court determines the defendant‘s “intent and objective” under section 654. (See, e.g., People v. Coleman (1989) 48 Cal.3d 112, 162 [255 Cal.Rptr. 813, 768 P.2d 32].) “In sentencing pursuant to Penal Code section 654, the trial court retains discretion to impose punishment for the offense that it determines, under the facts of the case, constituted the defendant‘s ’primary objective’ keeping in mind the overall purpose of section 654. (People v. Norrell (1996) 13 Cal.4th 1, 6 [51 Cal.Rptr.2d 429, 913 P.2d 458].) ‘[T]he protection against multiple punishment is to insure that the defendant‘s punishment will be commensurate with his criminal liability.’ (Neal v. State of California, supra, 55 Cal.2d at p. 20.)” With these principles in mind, we turn to Cleveland‘s arguments.
On appeal, Cleveland asserts: (1) the court‘s application of section 654 violated the rule announced in Apprendi;2 and (2) the court should have “stayed” his robbery sentence under section 654 because he robbed and attempted to murder Freeman during an indivisible course of conduct pursuant to one objective—to rob Freeman. We disagree with each of these contentions, and as set forth below, find the court properly sentenced Cleveland.
A. Apprendi Claim.
Apprendi v. New Jersey, 530 U.S. 466, is one in a series of recent cases in which the United States Supreme Court has expressed concern that a judge‘s use of the preponderance of the evidence standard to determine various “sentencing factors” may infringe upon an accused‘s constitutional due process rights.3
Apprendi involved two New Jersey criminal statutes working in tandem. The first statute punished the possession of a firearm for an unlawful
The United States Supreme Court granted certiorari and reversed, holding that the procedure used by the New Jersey courts violated the due process clause of the Fourteenth Amendment. (Id. at p. 476 [120 S.Ct. at p. 2355].) After reviewing the historical importance of trial by jury and the requirement of proof beyond a reasonable doubt, the court concluded that “[t]he historic link between verdict and judgment and the consistent limitation on judges’ discretion to operate within the limits of the legal penalties provided highlight the novelty of the legislative scheme that removes the jury from the determination of a fact that, if found, exposes the criminal defendant to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict alone.” (Id. at pp. 482-483 [120 S.Ct. at p. 2359], italics omitted.) From this principle, the court articulated a new constitutional rule: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum [for the particular crime] must be submitted to a jury, and proved beyond a reasonable doubt.”4 (Id. at p. 490 [120 S.Ct. at pp. 2362-2363].)
Here, Cleveland claims the trial court‘s determination under section 654 that he had separate objectives with respect to the robbery and attempted
Unlike in the “hate crime” provision in Apprendi, section 654 is not a sentencing “enhancement.” On the contrary, it is a sentencing “reduction” statute. Section 654 is not a mandate of constitutional law. Instead, it is a discretionary benefit provided by the Legislature to apply in those limited situations where one‘s culpability is less than the statutory penalty for one‘s crimes. Thus, when section 654 is found to apply, it effectively “reduces” the total sentence otherwise authorized by the jury‘s verdict. The rule of Apprendi, however, only applies where the nonjury factual determination increases the maximum penalty beyond the statutory range authorized by the jury‘s verdict. In Apprendi, the factual determination (i.e., the element of intent for the hate crime) which increased his sentence was not determined by the trier of fact under the reasonable doubt standard. Here, however, every factual element of the attempted murder and robbery was submitted to the jury, and the jury found Cleveland guilty beyond a reasonable doubt of both crimes. Thus, the jury‘s verdict authorized the sentences Cleveland received for each crime. Indeed, in finding section 654 did not apply, Cleveland received the same sentence as he was exposed to by the jury‘s verdict. Where, as here, the nonjury factual determination allows for a sentence within the range already authorized by the verdict, Apprendi has no effect.
Cleveland also argues that the rationale of Apprendi applies to the determination of “intent and objective” because section 654 sets the “maximum penalty” for his conduct. He asserts, the “maximum penalty” under section 654 is punishment under one statutory provision, not more than one. Cleveland claims that to determine whether the defendant should receive a sentence greater than the maximum penalty under section 654 (i.e., whether he should be sentenced under more than one provision), the trier of fact must make a factual determination of the defendant‘s “intent and objective.” Thus, under Apprendi, argues Cleveland, the jury rather than the court must make the appropriate factual determination of “intent and objective.” This argument fails. Section 654 does not contain the “maximum penalty” for any
Finally, we reject Cleveland‘s contention that “when a trial court determines a defendant harbored separate intents,” the court creates a “separate offense” with separate punishment. The court‘s finding under section 654 does not create a “new” offense. Instead, it gives effect to the jury‘s verdicts on offenses for which the defendant has been fully tried and convicted.
This analysis notwithstanding, any alleged error was harmless error beyond a reasonable doubt. (People v. Marshall (2000) 83 Cal.App.4th 186, 195 [99 Cal.Rptr.2d 441], review granted Nov. 29, 2000 (S091666) [Apprendi errors reviewed under the Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705, 24 A.L.R.3d 1065] harmless error standard].) As set forth below, we conclude the court properly found Cleveland had divisible intents under section 654 for the robbery and attempted murder. We have no doubt a jury would have reached the same conclusion under the reasonable doubt standard.
B. Application of Section 654.
We review the court‘s determination of Cleveland‘s “separate intents” for sufficient evidence in a light most favorable to the judgment, and presume in support of the court‘s conclusion the existence of every fact the trier of fact could reasonably deduce from the evidence. (People v. Green (1996) 50 Cal.App.4th 1076, 1085 [58 Cal.Rptr.2d 259].)
Sufficient evidence existed for the court to conclude Cleveland harbored divisible intents in committing two separate crimes—robbery and attempted murder of Freeman.5 We do not agree with Cleveland that both crimes were committed pursuant to the intent to rob Freeman of his Walkman. As the trial court observed, the amount of force used in taking the
The finding Cleveland had separate and simultaneous intents is further bolstered by the evidence that Cleveland and Freeman had a history of negative interaction. Cleveland had been angered by Freeman‘s refusal to give him more money after Cleveland ran the errand to buy Freeman cigarettes. In addition, shortly before Cleveland attacked Freeman, Cleveland became upset when his attempt to steal Freeman‘s walker was foiled. It is this history which motivated the gratuitous violence supporting the finding of two simultaneous intents.
In view of the foregoing, the court did not err in failing to “stay” Cleveland‘s robbery sentence.
DISPOSITION
The judgment is affirmed.
Lillie, P. J., concurred.
JOHNSON, J., Concurring and Dissenting.—I concur in the judgment, with the exception of the consecutive sentence which added 25 years to life to the already lengthy term of 29 years to life the court imposed.
In my view, the United States Supreme Court opinion in Apprendi v. New Jersey1 and the rationale it embodies—requires the jury rather than the trial judge to determine whether a defendant committed these offenses with multiple objectives and thus was susceptible to consecutive sentences rather
1. Apprendi requires a jury to determine whether a defendant entertained multiple intents and thus can be sentenced for two offenses arising from a single criminal act.
With an unusual alignment of justices,2 the United States Supreme Court recently declared the constitutional rights to trial by jury and proof beyond a reasonable doubt require reversal of enhancements based on factual determinations made by trial judges rather than jurors.3 The majority struck down a New Jersey statute allowing a trial court to raise the maximum sentence it could impose for certain offenses if the judge—not the jury—found the defendant was motivated by racial bias when he committed the crime.4 In doing so the nation‘s high court announced a broad principle. “[O]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”5
To underscore the breadth of its decision, the United States Supreme Court pointed out a legislature could not avoid the constitutional imperatives by labeling the factual determinations to be made as sentencing factors rather than elements of the offense. “[T]he relevant inquiry is not one of form, but of effect—does the required finding expose the defendant to a greater punishment than is authorized by the jury‘s guilty verdict?”6
Apprendi involved the question of who can make a factual finding about the defendant‘s state of mind at the time he committed the acts which injured the victim. In that case the question was whether the defendant‘s then state
The instant case likewise involves a factual finding about the defendant‘s state of mind at the time he committed the acts which injured the victim. In this case the question is whether the defendant‘s then state of mind embraced a single objective or more than one objective. If more than one, the trial court can impose consecutive sentences, in this instance adding a 25 years to life term and nearly doubling appellant‘s penalty for committing these criminal acts. And like the New Jersey law found unconstitutional in Apprendi, the California statute, Penal Code section 654, allocates this vital decision about the defendant‘s state of mind during the time he committed the criminal acts to the trial judge rather than the jury.
Both the New Jersey “hate crime” law and California‘s “consecutive sentencing” law dramatically increase a defendant‘s penalty based on a trial court‘s finding about his state of mind at the time he committed the criminal acts of which the jury convicted him. It would elevate “form over effect” to hold it is unconstitutional for a trial judge rather than a jury to decide whether a New Jersey defendant was motivated by hate when he committed his criminal acts yet it is constitutional for a judge to decide whether a California defendant entertained multiple rather than a single objective when committing his criminal acts. In both instances, “the required finding expose[s] the defendant to a greater punishment than that authorized by the jury‘s guilty verdict.”8 The jury only found appellant guilty of the two offenses. It was the judge who made the ”required finding” that allowed appellant to receive the “greater punishment” of a nearly double sentence—the finding appellant harbored multiple criminal objectives during this single course of criminal conduct. Accordingly, in my view, the Supreme Court‘s holding in Apprendi renders unconstitutional the consecutive sentencing of appellant in this case.
I should emphasize this view does not jeopardize those provisions in California‘s determinate sentencing laws which allow the judge—rather than a jury—to make findings about a defendant‘s character, his criminal record, the likelihood of recidivism, his potential for rehabilitation, or similar factors
In this case it is apparent the “sentencing factor” the trial court used to nearly double appellant‘s punishment depended on a factual finding about the defendant‘s state of mind during the time he was committing the criminal acts that brought him before the jury. Consequently, it was for the jury to decide whether appellant entertained that state of mind. Once that was decided, the trial judge would be free to make any number of findings regarding appellant‘s character and related factors and use those in choosing among various sentencing options to set appellant‘s term of imprisonment. But a defendant‘s state of mind is part of the crime. To that extent, a jury, not a judge, must fix his time.
2. Illinois authority supports the unconstitutionality of a judge rather than a jury determining appellant‘s multiple objectives during a single course of criminal conduct when that determination results in consecutive sentencing.
While my research has not uncovered any California opinion addressing the constitutionality of this state‘s consecutive sentencing process after the Supreme Court opinion in Apprendi, Illinois appellate courts have filed a flurry of opinions on the issue in the past few months. All revolve around an Illinois statute very similar to Penal Code section 654. That statute is 730 Illinois Compiled Statutes section 5-8-4(a) and provides: “The court shall not impose a consecutive sentence for offenses which were committed as part of a single course of conduct during which there was no substantial change in the nature of the criminal objective, unless: [¶] . . . one of the offenses for which defendant was convicted was . . . Class X or Class 1 felony and the defendant inflicted severe bodily injury.”
This Illinois statute, just as California‘s
In People v. Clifton, the jury had convicted the defendant of first degree murder, attempted first degree murder, and aggravated battery with a firearm. The prosecution arose out of a gang shooting involving several victims. Pursuant to 730 Illinois Compiled Statutes section 5-8-4(a), the trial judge—not the jury—determined the crimes occurred in a single course of conduct and with a single motive. After recognizing these were class X and class 1 offenses the trial court then made a further finding the defendant inflicted “severe bodily injury” and on that basis imposed consecutive rather than concurrent sentences. While the case was on appeal, the United States Supreme Court filed Apprendi and the defendant filed a supplemental brief, claiming this opinion required reversal of the consecutive sentencing decision.
The Clifton court proceeded to frame and resolve the constitutional issue.
“We are thus presented with the novel question of whether the Apprendi regime applies to section 5-8-4(a). If the statute in question increased the penalty range or the maximum penalty for a particular crime, it would seem that the statute would unquestionably be within the scope of Apprendi. However, section 5-8-4(a) operates differently from the sort of extended sentencing statute found unconstitutional in Apprendi. Rather than increasing the range of sentence for a particular crime, it controls, inter alia, when a defendant who is being sentenced for multiple convictions resulting from the same course of conduct will serve those sentences concurrently and when he will serve those sentences consecutively.
“While there are formal distinctions between the types of statutes involved in Apprendi and in this case, we find it difficult to distinguish between a
statute enhancing an individual sentence from a statute requiring an extended period of incarceration, albeit through the stacking of two non-enhanced sentences. It would be anomalous to hold that where a statute mandates the enhancement of an individual sentence the enhancement factors must be tried by the jury while a statute requiring an extended period of service by requiring consecutive sentences would remain outside the purview of the Apprendi rationale. While section 5-8-4(a) does not affect the range of sentence for any particular crime, it does, obviously, have a great effect on the amount of time a given defendant will spend in the penitentiary. Normally, sentences are to be served concurrently when a defendant is sentenced for multiple crimes which were part of the same course of conduct. . . . [¶] However, if the court finds that the defendant inflicted severe bodily injury, the sentences will run consecutively. Thus, while section 5-8-4(a) does not enhance the sentence for any particular crime, it does extend the range of sentence to which a defendant may be exposed for a given course of conduct. “If the court does not make a finding that the defendant inflicted severe bodily injury the maximum penalty to which the defendant is exposed for a given course of conduct is effectively the maximum penalty for the offense with the longest possible sentence because any other sentences will run concurrently. Thus the defendant would not be incarcerated for longer than that period. However, if the court finds that the defendant inflicted severe bodily injury the sentences run consecutively. Then the defendant could potentially be incarcerated for the aggregate of the maximum penalties for the two most serious felonies involved. . . . Thus, the practical effect of section 5/5-8-4(a) is that a factual finding of serious bodily injury by a judge will increase, even to the point of doubling, the actual and potential sentence which the defendant may receive for a given course of conduct.
“This is precisely the type of result which the supreme court meant its holding in Apprendi to encompass. In deciding to hold the New Jersey statute unconstitutional the court focused on the effect of the statute, not its form. . . . The court also explained the reasoning behind its holding, stating that if: [¶] ‘a defendant faces punishment beyond that provided by statute when an offense is committed under certain circumstances but not others, it is obvious that both the loss of liberty and the stigma attaching to the offense are heightened; it necessarily follows that the defendant should not—at the moment the State is put to proof of those circumstances—be deprived of the protections that have, until that point, unquestionably attached.’ Apprendi, 530 U.S. at 484, 120 S.Ct. at 2359, 147 L.Ed.2d at 451.
“Here, as we have shown, the penalties for Clifton‘s collective offenses were heightened when the judge made a finding of infliction of severe bodily
injury. The stigma and loss of liberty attached to a set of offenses wherein the defendant inflicted serious bodily harm are unquestionably greater than the stigma and loss of liberty attached to a set of offenses where no such bodily harm occurred. Consequently, we find that it would be unduly narrow and arbitrary to hold that Apprendi should not attach to the imposition of consecutive sentences requiring as a pre-condition such a factual determination in addition to those facts necessary to obtain a conviction for the crime charge. “. . . If consecutive sentences are to be imposed pursuant to a factual finding that severe bodily injury occurred, then severe bodily injury will have to be submitted to a jury and proved beyond a reasonable doubt.”12
The Clifton opinion supports all the positions urged earlier in this dissenting opinion and also responds directly to nearly every argument raised in the majority opinion in this case. Here, as in Clifton, appellant faces punishment beyond that provided by statute when offenses are committed under certain circumstances but not others and thus it necessarily follows that the defendant should not—at the moment the state is put to proof of those circumstances—be deprived of the right to jury trial of those circumstances. Here, as in Clifton, appellant‘s greater punishment does not exceed the combined maximum for the offenses of which the jury found appellant guilty but rather from a judge‘s finding about “certain circumstances” which elevated the defendant‘s punishment from a concurrent to a consecutive sentence.13 Yet the Clifton court had no trouble concluding Apprendi is not limited to situations “where a judge-made factual determination increases the maximum statutory penalty for the particular crime or crimes.”14 Instead it held Apprendi applied as well where a judge made factual determinations about circumstances of a single course of criminal conduct which findings permitted or required consecutive sentencing for the “particular offenses” implicated in that course of conduct.
In Clifton, the “certain circumstances” the court held the jury must decide involved the “infliction of bodily injury,” while in this case those circumstances consist of the number of “objectives” the appellant entertained during the commission of the offenses that were part of this “course of conduct.” The “circumstances” may be of different types in the two cases, but the differences are irrelevant for this purpose. Indeed, if anything it is even clearer the defendant‘s state of mind while committing the criminal acts is a jury question than that the degree of injury to the victim must be decided by the jury.
“Based upon the reasoning in Apprendi, we conclude that the imposition of consecutive sentences is the same as a sentence enhancement, and, therefore, . . . any fact that is utilized to increase the amount of time a defendant must serve must be submitted to the trier of fact and proved beyond a reasonable doubt. Thus, the requirement of section 5-8-4(a) that the defendant be sentenced to consecutive sentences for the offenses listed therein if the defendant committed the offenses ‘as part of a single course of conduct during which there was no substantial change in the nature of the criminal objective’ is unconstitutional. . . . As a result, the defendant may not be subjected to imposition of consecutive sentences for his aggravated criminal sexual assault convictions.”16
The Waldrup court ruled the jury rather than the judge must decide whether a defendant substantially changed the nature of his criminal objective during the single course of criminal conduct that produced his multiple convictions. Only with a jury verdict embracing this factual issue is a judge constitutionally permitted to impose consecutive sentences for those offenses. This ruling is equally persuasive when the consecutive sentencing option depends on a factual finding about whether the defendant entertained two or more objectives when he violated more than one criminal statute during a single course of criminal conduct. Both a “substantial change in criminal objective” and “entertaining multiple objectives” involve a defendant‘s state of mind while engaged in the course of criminal conduct. As such, for reasons explored in part 1 of this opinion as well as in Waldrup and the other Illinois decisions, the jury rather than judge must make the factual determination before a trial judge can impose a consecutive sentence.
In the only argument not addressed in the Illinois cases quoted above, the majority opinion here also characterizes the trial judge‘s determination of the question whether a defendant entertained multiple rather than a single objective as a sentence “reduction” rather than a sentence “enhancement” decision.17 Consequently, the majority argues, Apprendi does not apply to mandate a jury instead of a judge make the determination and to do so under a reasonable doubt standard. In my view, this characterization is neither accurate nor relevant.
First, it is easier—and more accurate—to characterize this decision as one effecting a sentence enhancement rather than a sentence reduction. When a jury convicts a defendant of two or more offenses occurring during a single course of conduct,
Accordingly, the decision as to how many objectives a defendant harbors when committing a given criminal act is more accurately seen as determining whether appellant‘s sentence can be enhanced, not whether it can be reduced.
Yet even were
Would such a statutory scheme run afoul of the constitutional guarantees of due process and trial by jury as explained in Apprendi? I submit it would. It would fail because it imposed higher penalties for different states of mind without granting a jury trial on the issue of which state of mind the defendant possessed when he committed the criminal act. The fact the jury had been permitted to decide the issues of the defendant‘s criminal actions and causation would not save this statutory arrangement. Nor would the fact the crime of which the jury found the defendant guilty carried the maximum penalty and the state of mind issue the judge decided could only reduce, not enhance, the sentence for that crime.20
For the same reason, California‘s statutory scheme for determining the punishment to be imposed when a defendant‘s criminal act may or may not involve multiple objectives runs afoul of Apprendi, even if viewed as involving “sentence reduction” rather than “sentence enhancement.” It still has the vice of committing to a judge rather than a jury the determination of the defendant‘s state of mind at the time he committed the criminal act and basing the defendant‘s punishment on that determination.
The majority argues, as an alternative ground for its decision, that the evidence defendant harbored multiple objectives is so overwhelming it would be harmless error to deny appellant his jury trial on this issue. While this is a closer question, in my view we cannot say the evidence here is so overwhelming that no reasonable juror could conceivably entertain a reasonable doubt about appellant‘s objective or objectives while engaged in this crime. Such a juror could have thought there was some chance, at least, appellant committed the attempted murder as a means of succeeding with his theft and not as an independent objective. That he might have been able to accomplish the theft with a lesser amount of force does not foreclose the possibility appellant thought otherwise. Nor does it foreclose the possibility a reasonable juror could have harbored a reasonable doubt that possibility existed here.
We should not make the mistake of substituting what we would have concluded about the appellant‘s objectives and motivations had we sat on the jury for the typically broad range of inferences different jurors might rationally have drawn from the evidence before them. Seldom if ever can it be said the evidence about a defendant‘s state of mind is so conclusive we can deem it harmless error to take that issue from the jury. It is one thing to find harmless error when the court denied the jury an opportunity to decide a simple, objective fact such as whether the area where a crime occurred was “public” and the evidence of that narrow fact is conclusive, as in People v. Jimenez.21 It is an entirely different matter when a judge rather than a jury decides an issue as fundamental and inherently complex as the defendant‘s state of mind at the time he committed the criminal acts. Only in the most extraordinary circumstances could it be said an error of this magnitude is harmless. In my view, this case does not present such an extraordinary circumstance.
For the above reasons, I would reverse the consecutive 25-year-to-life sentence the court imposed on appellant, and remand to the trial judge with instructions to impose that term as a concurrent sentence.
Appellant‘s petition for review by the Supreme Court was denied May 23, 2001. Mosk, J., Kennard, J., and Brown, J., were of the opinion that the petition should be granted.