Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FCH07722, Stanford E. Reichert, Judge.
Jean Ballantine, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Collette Cavalier and Rhonda Cartwright-Ladendorf, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Gaut, J.
All statutory references are to the Penal Code unless stated otherwise.
A jury convicted defendant of four sexual offenses committed against his stepdaughter, Jane Doe, when she was under 16 years of age. The court sentenced defendant to a five-year prison term, including the upper term of three years on the first count for lewd acts upon a child of 14 or 15 years of age by a person at least 10 years older and three additional consecutive sentences of eight months each. (§ 288, subd. (c)(1).) Defendant challenges the three-year upper term and the consecutive sentences on the other three counts. We reverse the sentence of three years on count 1 and remand for resentencing. Otherwise, we affirm the judgment.
2. Facts
Only an abbreviated version of the facts is required to consider defendant’s claims of sentencing error.
Jane Doe was born in July 1985. Defendant married Jane Doe’s mother in 1993. When Jane Doe began playing basketball, defendant coached her team. Jane Doe claimed defendant was bad-tempered and occasionally physically violent. She was afraid of him at times.
When Jane Doe was about 14 years old, defendant started to give her massages, ostensibly to relieve her soreness from basketball practice. In September 1999, he began massaging her breasts above and under her clothes. He progressed to massaging her genitals and eventually he began to perform digital penetration on her, activities that continued for two years.
Jane Doe began dating when she was 16 years old. When defendant questioned her about sexual activity with her boyfriend, she realized that defendant had been molesting her. She refused any more massages and the molestations ended.
When Jane Doe turned 20, she confessed to her mother what had happened. Her mother confronted defendant who denied the accusations although later he admitted the conduct.
During a pretext phone call by Jane Doe to defendant, defendant apologized for abusing her trust. He acknowledged touching her breasts and digitally penetrating her. He admitted what he did was “just stupid, stupid, stupid.” Although he knew it was wrong and he had betrayed her, he was also sexually stimulated by the conduct.
Defendant testified in his own defense, contending that Jane Doe had fabricated her accusations and he had never engaged in sexual conduct with her. He denied being bad-tempered or violent. He admitted giving Jane Doe nonsexual massages while they discussed basketball. He also admitted discussing sexual matters with Jane Doe and giving her advice.
After Jane Doe’s mother confronted him, defendant told her, “Okay. It happened” because he wanted to restore the family. He never admitted any specific behavior. He was willing to apologize to Jane Doe if it could help. He did not suspect Jane Doe was making a pretext call. His statements were invented based on what he thought a truly guilty person might say. He was prepared to say and do anything to preserve the family.
3. Upper Term
On the principal count, the court sentenced defendant to the upper term of three years although the sentencing report recommended the middle term of two years. The court chose the upper term based on the following factors: the crimes continued over a long period of two years and defendant took advantage of his position as Jane Doe’s stepfather. (Cal. Rules of Court, rules 4.421(a)(3), (11).)
As a third factor, seemingly related to the consecutive sentences, the court mentioned the long-term effect of defendant’s conduct on the victim and her mother.
Defendant challenges the upper term on the grounds that it was based on facts not decided by a jury or admitted by defendant and as prohibited by Cunningham v. California (2007) 549 U.S. 270, [127 S.Ct. 856, 860]. Defendant had the right to have a jury decide the aggravating sentencing factors. (Id., 127 S.Ct. 856.)
There are two exceptions to this rule: “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. [Citations.]” (People v. Sandoval (2007) 41 Cal.4th 825, 836-837.) Here these two exceptions do not apply.
The People contend that any error in imposing the upper term is harmless. Trial court error is harmless where, “the jury . . . unquestionably would have found true at least a single aggravating circumstance had it been submitted” to it. (People v. Sandoval, supra, 41 Cal.4th at p. 839.) The “imposition of an upper term sentence [does] not violate [a] defendant’s right to a jury trial [where] at least one aggravating circumstance was established by means that satisfy Sixth Amendment requirements and thus made [the defendant] eligible for the upper term.” (People v. Black (2007) 41 Cal.4th 799, 806 (Black II).)
Here it is speculation as to what the jury would have done had they been requested to make findings on the factors relied on by the court in imposing the aggravated sentence on count 1. Aggravated means, “distinctively worse than the ordinary.” (People v. Moreno (1982) 128 Cal.App.3d 103, 110.) But here “ordinary” refers to the offense charged in count 1, committing a lewd act on Jane Doe (§ 288, subd. (c)(1)). Generally, such crimes involve reprehensible sexual misconduct, including developing relationships with children to satisfy the defendant’s sexual desires and breaching the child’s trust.
The court relied on factors which involved a conclusion based on “an imprecise quantitative or comparative evaluation of the facts.” (People v. Sandoval, supra, 41 Cal.4th at p. 840.) Such findings were “not part of the charge” and the court’s findings were not derived from any finding by the jury. (Id. at p. 839.) The court’s findings included the ongoing nature of the offenses and that defendant violated his position of trust and confidence as a coach and stepparent. These are either not findings, but rather subjective conclusions or, if they were findings, the jury did not make any actual findings on these factors.
Where aggravating circumstances rest on “somewhat vague or subjective standard[s], it may be difficult for a reviewing court to conclude with confidence that, had the issue been submitted to the jury, the jury would have assessed the facts in the same manner as did the trial court.” (People v. Sandoval, supra, 41 Cal.4th at p. 840.) Such is the case here. Furthermore, we “cannot necessarily assume that the record reflects all of the evidence that would have been presented had aggravating circumstances been submitted to the jury.” (Id. at p. 839.) We therefore cannot conclude from this record that the sentencing error was harmless beyond a reasonable doubt. As a consequence, the aggravated sentence on count 1 must be vacated, and the matter remanded for resentencing.
Additionally, we reject defendant’s contention that sentencing under the Determinate Sentencing Law (§ 1170, subd. (a)), violates the ex post facto clause of the United States Constitution. That claim was rejected in People v. Sandoval, supra, 41 Cal.4th at page 857 and, as acknowledged by defendant, is binding on this court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Under the reformed sentencing law, the superior court, on remand may exercise its discretion without additional factfinding and using the amended court rules for guidance. (Sandoval, supra, at pp. 846 and 852; Cal. Rules of Court, rules 4.405-4.452.)
4. Consecutive Sentencing
Defendant argues the court used the same reasons to sentence defendant consecutively on the three other counts as it did on count 1, specifically the ongoing nature of the molestations, defendant’s abuse of the stepparent relationship, and the significant impact on the victim and her mother. (Cal. Rules of Court, rule 4.425, subd. (a).)
Defendant contends the court’s imposition of consecutive sentences as to counts 2, 3, and 4 violated his right to a jury trial as guaranteed by the Sixth Amendment to the United States Constitution. (Apprendi v. New Jersey (2000) 530 U.S. 466; Blakely v. Washington (2004) 542 U.S. 296; Cunningham, supra, 127 S.Ct. 856.) This argument was rejected in Black II, supra, 41 Cal.4th 799.
In Black II, supra, 41 Cal.4th 799, the California Supreme Court held for a second time that the determination whether two or more sentences should be served consecutively is a “‘sentencing decision[] made by the judge after the jury has made the factual findings necessary to subject the defendant to the statutory maximum sentence on each offense’ and does not ‘implicate[] the defendant’s right to a jury trial on facts that are the functional equivalent of elements of an offense.’” (Id. at p. 823, quoting from People v. Black (2005) 35 Cal.4th 1238, 1264.)
In Black II, the Supreme Court stated: “Accordingly, we again conclude that defendant’s constitutional right to jury trial was not violated by the trial court’s imposition of consecutive sentences on all three counts.” (Black II, supra, 41 Cal.4th at p. 823.) Thus, the California Supreme Court has rejected defendant’s notion that under Cunningham imposition of consecutive sentences in the absence of jury findings is unconstitutional. In light of Black II, defendant’s challenge to consecutive sentencing is without merit.
Additionally, we reject defendant’s argument about dual facts being used improperly for both the upper term and consecutive sentences. (Cal. Rules of Court, rule 4.425(b)(1).) Defendant bears the burden, as the party attacking the sentence, to clearly show that the sentencing decision was irrational or arbitrary. “‘In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.’ [Citation.]” (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.) “‘Sentencing courts have wide discretion in weighing aggravating and mitigating factors . . . .’” (People v. Avalos (1996) 47 Cal.App.4th 1569, 1582.)
Section 1170, subdivision (b), however, prohibits dual use of aggravating factors in imposing an upper term: “[T]he court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law.” Any circumstances in aggravation may be considered in deciding whether to impose consecutive rather than concurrent sentences. A fact used to impose the upper term, however, may not be used to impose consecutive sentences. (Cal. Rules of Court, rule 425(b).)
Only one factor in aggravation is necessary to support a consecutive sentence. (People v. Holguin (1989) 213 Cal.App.3d 1308, 1319.) Thus, the imposition of a consecutive term may be held valid even though it is supported only by some, but not all, of the circumstances enumerated by the trial court. (People v. Ginese (1981) 121 Cal.App.3d 468; People v. Dreas (1984) 153 Cal.App.3d 623.)
Defendant relies on People v. Lawson (1980) 107 Cal.App.3d 748, 758, to argue we cannot “pick and choose” the factors supporting the upper term and the consecutive sentences. In Lawson, the court said: “We reject respondent’s suggestion that the ‘properly applied factors’ are sufficient to sustain the sentence. First, the remaining factors cited by the trial court themselves are problematical. For example, the crime in count one did not involve multiple victims. It involved one victim. The court may not find that the crime at issue, singular not plural, involved multiple victims (see Cal. Rules of Court, rule 421(a)(4)) by adding victim(s) from independent crimes.
“Second, where a dual use occurred as to multiple factors, we are unwilling to speculate as to which factor(s) might have been determinative to the trial court. [Citation.]”
In the present case, however, none of the three factors cited by the trial court are “problematical.” All of them unquestionably had merit and defendant does not argue to the contrary. If the court based the upper term or the consecutive sentences on any single factor, it would have been appropriate. Therefore, it is not reasonably probable the court would have imposed concurrent rather than consecutive sentences had the court relied on separate aggravating facts to impose the upper term and consecutive sentences. No error and hence no ineffective assistance of counsel occurred.
5. Disposition
The judgment is affirmed, with the exception of defendant’s sentence on count 1, which is reversed. This case is remanded to the superior court with directions to vacate the sentence on count 1 and resentence defendant in a manner consistent with this opinion.
We concur: Ramirez, P. J., Miller, J.