Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County. David W. Perkins, Judge. (Retired judge of the Los Angeles Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.), Super.Ct.No. INF052327
Daniel G. Koryn, 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, Gil Gonzalez and Garrett Beaumont, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI, J.
Defendant Alonzo Mata repeatedly had vaginal, anal, and oral sex with his niece, starting on her eighth birthday and continuing for at least a year. As a result, he was convicted of aggravated sexual assault on a child (Pen. Code, § 269, subd. (a)(3)), oral copulation on a child (Pen. Code, § 288a, subd. (c)(1)), and continuous sexual abuse of a child (Pen. Code, § 288.5, subd. (a)) and sentenced to a total of 23 years to life.
Defendant contends:
1. The trial court erred by admitting evidence that defendant had committed a prior sexual offense against a child.
2. Judicial Council of California Criminal Jury Instructions (CALCRIM) No. 1191, concerning evidence of a prior sexual offense, violated defendant’s federal and state constitutional rights to due process and a fair trial.
3. The prosecutor committed misconduct by referring to defendant in closing argument as a “monster”; or, alternatively, defense counsel’s failure to object to this term constituted ineffective assistance of counsel.
4. The trial court erred by imposing upper-term sentences based on facts neither admitted by defendant nor found beyond a reasonable doubt by a jury.
We reject defendant’s contentions. In the course of our review, however, we have identified one minor error, which we can correct by modifying the judgment. Accordingly, we will affirm the judgment as so modified.
I
FACTUAL BACKGROUND
A. Prosecution Evidence.
1. The charged crimes.
Between June 2001 and June 2004, Jane Doe and her two older brothers lived with their parents in a house in Indio. Defendant is Jane’s uncle. He lived at the house with them, off and on.
Defendant started touching Jane’s breasts, both over and under her clothes, and touching her genitals, with his hands. He did this “a couple [of] times[.]”
In 2002, on Jane’s eighth birthday, she was in her room watching television. She was home alone with defendant; her parents were at work. Defendant came in. He told her to lie down and to take off her clothes. He took off his own clothes, got on top of her, and told her to open her legs. He then had sexual intercourse with her. When he was done, he told her not to tell anybody, so she did not.
After that, defendant had sexual intercourse with Jane at least 10 more times. On each of those occasions, he orally copulated her before initiating intercourse. He also sodomized her at least 10 times. When he sodomized her for the first time, she tried to move away, but he pulled her hair and told her to come back to the bed.
Jane testified that there was “like a cut” or “[a] scar” running up and down the right side of defendant’s penis. Defendant also had “[a] lot” of pubic hair.
One time, when Jane was 9 or 10, defendant had sex with her while one of her brothers was sleeping on the floor next to them. Defendant “didn’t quite know [her brother] was up, so [defendant] put a pillow over [her brother’s] face.” While defendant was on top of her, her brother woke up.
Jane’s brother corroborated this, testifying that he was sleeping in Jane’s room one night when he felt somebody keep trying to put a pillow over his face. When he got up to go to the bathroom, he saw defendant in Jane’s bed. When he came back, defendant was on top of Jane. Defendant said, “[I]f you tell, I am going to blame it on you.”
After that, Jane and her brother told their mother that defendant came in Jane’s room and was on top of her. Jane added that “he had done that many times before.” Because the two children were afraid of defendant, their mother stayed in her bedroom with them, waiting for their father to come home. During the day, defendant knocked on the bedroom door some 15 to 20 times. He asked “how come he couldn’t see the kids, what was going on, what were the kids telling [her], [and said] that whatever they were telling [her], they were lying.”
When Jane’s father got home, Jane told him that defendant “had been sneaking into [her] room . . . .” According to Jane’s father, he confronted defendant, then kicked him out of the house. According to Jane and her brother, however, defendant was still in the house the next day. Jane’s parents did not call the police.
Some months later, Jane’s parents let defendant move back in, although they made sure that one of them was with Jane at all times, and they had her keep her room locked.
In May 2005, Jane told her mother “in more detail” what had happened. Jane’s mother called the Barbara Sinatra Children’s Center. As a result, a representative of Child Protective Services (CPS) interviewed Jane. Jane’s statement was essentially consistent with her trial testimony, except as follows. Jane said the first time defendant had intercourse with her was on her ninth birthday. When defendant first came into her room, she was talking on the phone. Afterwards, she said she was going to tell her father, but defendant said, “I don’t care, [’]cause if you do, then I will do it harder . . . .” She said that defendant sodomized her only once. She said his penis had “[a] line . . . down the middle”; she “d[id]n’t know if it was a scar or not.”
Pursuant to a search warrant, Deputy Robert Nagels viewed defendant’s penis and had it photographed. In his opinion, defendant was “hairier than most . . . .” Defendant did not have a scar on his penis, but he did have a prominent vein in the location that Jane had specified.
In August 2005, when Jane was 10, she underwent a sexual assault examination by nurse Deborah McMahon. McMahon found that Jane’s hymen was intact. She added, however, that this did not necessarily mean that defendant had not penetrated Jane. Because Jane was a relatively heavy child, her hymen was farther back; thus, defendant may have penetrated her, but not deeply. Likewise, Jane’s anus was normal, but this was not inconsistent with penetration, especially given the passage of time. During the examination, Jane denied any sodomy.
Jane admitted that she had not told the CPS interviewer everything. The first time she testified in court, she had also left some things out. At one court hearing, she had “tried to take it all back and say it didn’t happen . . . .” She explained that she was worried about causing stress for her parents and also about what was going to happen to defendant, her uncle. Moreover, she “d[id]n’t want nobody else to know about it.”
Jane’s father testified that he had Bell’s palsy, his immune system was deteriorating, and he had suffered a mild heart attack, all due to “stress from this . . . .”
The second time she was in court, she told everything. She admitted testifying, however, that defendant had sodomized her only once. She also admitted testifying that defendant had not pulled her hair.
2. “Other bad acts” evidence.
Priscilla T., defendant’s cousin, testified that one time, when she was 5 or 6, she and defendant were on a rooftop patio at defendant’s house. Defendant told her to sit on a lawn chair. He reclined the chair, then pulled down her pants and underwear. He asked her to promise not to “say anything to anyone”; she said, “[O]kay.”
Defendant then had sexual intercourse with her. It hurt, and she told him to stop, but he did not. When he was done, he reminded her that she had promised not to tell anyone what happened.
In September 2005, when Priscilla was 14, Nurse McMahon performed a sexual assault examination on her, too. She found that Priscilla’s hymen was not intact.
B. Defense Evidence.
Defendant testified in his own behalf. He denied ever touching Jane sexually. He denied that Jane ever saw him naked. Defendant agreed that there was one day when Jane’s mother and the children stayed in the bedroom and would not let him in, but he denied knocking on the door repeatedly or asking what was going on.
Defendant suggested three reasons why Jane and her brother might be making false accusations against him. First, while he felt that he had a “[v]ery good relationship” with both Jane and her brother, their mother had “started to dislike [him] a lot.”
Second, Jane and her brother might have resented being disciplined by him. When he was staying at Jane’s house, he was called upon to baby-sit from time to time. Thus, sometimes he had to punish the children. They would get mad and say that he was “mean.”
Third, defendant had caught Jane evidently making out with her brother. One night, he noticed that Jane’s television was still on. He went into her room and saw that her brother was in bed with her. It looked like “they were touching each other . . . .” The brother immediately jumped up off the bed. Defendant asked them what was going on; they said, “[N]othing.” Defendant said, “[Y]ou better not be lying because I am going to tell your parents . . . .” The next day, in Jane’s room, defendant found some of Jane’s clothing, some of her brother’s clothing, and some lotion, all “stashed” under a towel in the corner of Jane’s closet.
Defendant denied that the incident to which Priscilla had testified ever occurred. He admitted, however, that he did not know any reason why she would accuse him falsely.
Three character witnesses — defendant’s fiancée, his fiancée’s brother, and a long-time friend and coworker — all agreed that defendant was not capable of molesting a child.
II
EVIDENCE OF A PREVIOUS SEXUAL OFFENSE
Defendant contends that the trial court erred by admitting evidence that he had committed a previous sexual offense.
A. Additional Factual and Procedural Background.
In its trial brief, the prosecution indicated that it intended to offer evidence of the following prior sexual offense under Evidence Code section 1108: In 1995, when defendant was 15, he raped Priscilla T., identified in the trial brief as a “family friend.” They were at his home. He had her sit on a chair. He lifted up her shirt and pulled down her pants, then touched her breast area and vagina. When he pulled down his own pants, she tried to get up, but he pushed her back down. He then had sex with her.
While the trial brief did not say exactly how old Priscilla T. was at the time, it did state that both she and Jane Doe were “young girls.” At trial, she testified that she was “[f]ive or six.”
At trial, Priscilla T. testified that defendant is actually her cousin.
Defendant filed a motion in limine to exclude this evidence. He argued that the evidence should be excluded under Evidence Code section 352, because it was remote, it was not sufficiently similar, and it did not result in a conviction. In addition, he argued that the evidence was not admissible under Evidence Code section 1101, subdivision (b). The trial court denied the motion and admitted the evidence. Thus, Priscilla testified at defendant’s first trial.
That trial, however, ended with a hung jury. As far as the record reflects, in connection with defendant’s second trial, the prosecution did not file a new trial brief, nor did defendant make a new motion in limine. Accordingly, Priscilla testified again at defendant’s second trial. In addition, sexual assault nurse examiner Deborah McMahon, who had examined Jane Doe, also testified about her examination of Priscilla.
B. Analysis.
Preliminarily, we questioned whether defendant forfeited his present contention by not renewing his motion in limine or otherwise objecting to Priscilla’s testimony at his second trial. (See People v. Mattson (1990) 50 Cal.3d 826, 849-850; but see People v. Morris (1991) 53 Cal.3d 152, 189-191 , disapproved on other grounds in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.) The same judge, however, presided over both trials; thus, it seems clear that, so long as defendant is not relying on any facts or circumstances that were developed following the trial court’s initial denial of the motion, renewing the motion would have been futile. Accordingly, even assuming that, ordinarily, defendant would have been required to renew the motion (see Evid. Code, § 353, subd. (a)), that requirement is excused. (People v. Carrillo (2004) 119 Cal.App.4th 94, 101.)
Evidence Code section 1108 “permit[s] the admission, in a sex offense case, of the defendant’s other sex crimes for the purpose of showing a propensity to commit such crimes.” (People v. Falsetta (1999) 21 Cal.4th 903, 907.) It provides, as relevant here: “In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant’s commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352.” (Evid. Code, § 1108, subd. (a).)
“By reason of section 1108, trial courts may no longer deem ‘propensity’ evidence unduly prejudicial per se, but must engage in a careful weighing process under section 352. Rather than admit or exclude every sex offense a defendant commits, trial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant’s other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense. [Citations.]” (People v. Falsetta, supra, 21 Cal.4th at pp. 916-917.)
“This court reviews the admissibility of evidence of prior sex offenses under an abuse of discretion standard. [Citation.] A trial court abuses its discretion when its ruling ‘falls outside the bounds of reason.’ [Citation.]” (People v. Wesson (2006) 138 Cal.App.4th 959, 969, quoting People v. DeSantis (1992) 2 Cal.4th 1198, 1226.)
Because the defense theory was that Jane Doe was accusing defendant falsely, evidence that he had a propensity to commit sex offenses was highly probative. “‘In the determination of probabilities of guilt, evidence of character is relevant. [Citations.]’ [Citation.] Indeed, the rationale for excluding such evidence is not that it lacks probative value, but that it is too relevant.” (People v. Fitch (1997) 55 Cal.App.4th 172, 179, quoting People v. Jones (1954) 42 Cal.2d 219, 223.)
The prior offense was reasonably similar to the current offenses in that, in each case, defendant found himself at his home alone with an elementary-school-aged female relative; he began by fondling the victim’s breasts and crotch, then unilaterally progressed to sexual intercourse. Of course, he lived with Jane, whereas Priscilla was just visiting him; accordingly, he went on to commit a greater variety of sex acts with Jane and to commit them when others were in the home. Nevertheless, the evidence had substantial probative value concerning defendant’s propensity to commit such an offense.
When the trial court ruled on the motion, it knew only that Priscilla T. was a family friend. Thereafter, however, in the first trial, Priscilla T. testified that she was defendant’s cousin. Because this may partially explain why defendant did not renew his motion in limine, we believe we are entitled to take it into account.
At the same time, the evidence was not particularly prejudicial. “‘[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendant’s case. The stronger the evidence, the more it is “prejudicial.” The “prejudice” referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against defendant as an individual and which has very little effect on the issues. In applying section 352, “prejudicial” is not synonymous with “damaging.”’ [Citation.]” (People v. Karis (1988) 46 Cal.3d 612, 638, quoting People v. Yu (1983) 143 Cal.App.3d 358, 377.) Here, the evidence was “prejudicial” only in the sense that it was relevant and probative propensity evidence. Precisely because the prior offense was essentially similar, it did not tend to evoke any greater emotional bias against defendant than did the evidence of the current offense.
Defendant argues that the evidence was “cumulative[],” because his “videotaped confession” was played for the jury, and “[his] own statements corroborated Doe’s allegations.” The videotape that was played for the jury, however, showed an interview with Jane Doe, not an interview with defendant (much less a confession by him). In their brief, the People pointed this out. Nevertheless, somewhat bizarrely, defendant reiterated this argument in his reply brief. We reject it as factually unfounded.
Defendant also argues that the evidence was likely to confuse the jury. The jury was properly instructed, however, using CALCRIM No. 1191, that it was to consider the evidence solely as propensity evidence and not for any other purpose. (See part III, post.) The evidence did not take up a great deal of time — it covers no more than 23 transcript pages. We see no reason why the jury would have had any more trouble evaluating it than in any other instance of “other crimes” evidence.
We recognize that the prior offense did not result in a conviction. It has been held that “the prejudicial impact of the evidence is reduced if the uncharged offenses resulted in actual convictions and a prison term, ensuring that the jury would not be tempted to convict the defendant simply to punish him for the other offenses . . . .” (People v. Falsetta, supra, 21 Cal.4th at p. 917.) However, it is also reduced somewhat if, as here, the jury simply is not told whether the prior offense resulted in a conviction or not. (People v. Waples (2000) 79 Cal.App.4th 1389, 1395 [Fourth Dist., Div. Two].) In any event, a prior offense that did not result in a conviction is not inadmissible per se. We cannot say that it fell “outside the bounds of reason” to conclude that the substantial probative value of the evidence outweighed this entirely speculative prejudicial effect.
Defendant relies on People v. Harris (1998) 60 Cal.App.4th 727. There, however, the defendant, a mental health nurse, was accused of orally copulating, manually masturbating, and otherwise sexually touching two patients in his care, with some force but without threats or violence. (Id. at pp. 731-732.) By contrast, in the prior offense, the defendant had attacked a stranger in her apartment, leaving her unconscious and bleeding from the crotch; he was found, shortly afterward, with blood all over his crotch, shorts, and pants. (Id. at pp. 733-735.) The appellate court noted that the evidence of the prior offense “was inflammatory in the extreme.” (Id. at p. 738.) It had little similarity to the current offenses, aside from the fact that the victims were all Caucasian (as was the defendant) and “in their 20’s or 30’s.” (Id. at p. 740.) The jury was told that, in connection with the prior offense, the defendant had been convicted of burglary with great bodily injury, leading it to believe that he had “escaped appropriate rape charges . . . .” (Id. at p. 738.) The prior offense was also extremely remote — it had occurred 23 years before the current offense. (Id. at p. 739.) The appellate court concluded that the trial court abused its discretion by admitting the prior offense under Evidence Code section 1108. (Harris, at p. 741.)
Here, of course, all of these decisive factors were absent. The prior offense was not violent or otherwise significantly more inflammatory. There was greater similarity between the current and prior offenses. The jury was not told whether the prior offense resulted in a conviction. And the prior offense, while somewhat remote, was not nearly as much so as the prior offense in Harris. Accordingly, we come to a different result.
We conclude that the trial court did not abuse its discretion by admitting evidence of the prior sexual offense.
III
JURY INSTRUCTION ON EVIDENCE OF A PRIOR SEXUAL OFFENSE
Defendant contends that CALCRIM No. 1191, concerning evidence of a prior sexual offense, violated his federal and state constitutional rights to due process and a fair trial.
CALCRIM No. 1191, as given in this case, provided:
“The People have presented evidence that the defendant committed the crime of lewd or lascivious act by fear or by force or fear, violation of 288(b) of the Penal Code[,] that was not charged in this case. The crime is defined for you in these instructions. . . . This has to do with the testimony regarding Priscilla.
“You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged offense. [¶] . . . [¶]
“Proof by a preponderance of the evidence is a different burden of proof from proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true.
“If the People have not met this burden of proof, you must disregard this evidence entirely.
“If you decide that the defendant committed the uncharged offense, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit sexual offenses, and based on that decision, also conclude that the defendant was likely to commit sodomy by force, as charged here. If you conclude that the defendant committed the uncharged offense, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of this crime. The People must still prove each element of every charge beyond a reasonable doubt.
“Do not consider this evidence for any other purpose except for the limited purpose that the defendant is likely to continue to commit sexual offenses against children and to determine the defendant’s credibility.” (Italics added.)
The italicized language is likewise emphasized in defendant’s brief; evidently this is the language that he contends is erroneous.
Defendant concedes that, in People v. Reliford (2003) 29 Cal.4th 1007, 1012-1016, the California Supreme Court rejected a challenge to similar language in CALJIC No. 2.50.01. He further concedes that Reliford “likely precludes” his challenge to CALCRIM No. 1191. We agree. (See People v. Cromp (2007) 153 Cal.App.4th 476, 479-480.) Indeed, as defendant does not provide any citation of authority or reasoned argument to support his challenge (except by representing that the challenges in Reliford were similar), Reliford requires us to do so.
IV
PROSECUTORIAL MISCONDUCT IN CLOSING ARGUMENT
Defendant contends that the prosecutor committed misconduct by referring to him in closing argument as a “monster.” He also contends that his defense counsel’s failure to object to this asserted misconduct constituted ineffective assistance of counsel.
A. Additional Factual and Procedural Background.
In closing argument, the prosecutor made the following remarks:
“In my opening I told you that by the end of this trial you will see the defendant for what he really is, a child molester and a monster.”
“The allegations against the defendant are dis[g]usting, and yet through this trial when Jane Doe testified, he sat there motionless. When [Jane Doe’s mother] got on the stand and you could see the pain . . ., he sat there motionless.
“When Priscilla got up on the stand and she had to face that wall, she couldn’t even look at him, he sat there motionless.
“He got up on the stand and testified. He was very polite, he was calm and methodical just like somebody without a conscience.
“That defendant is a monster.”
“He is a sexual perpetrator, he is a monster, and you need to stop it.”
Defense counsel did not object to any of these remarks.
B. Analysis.
“A prosecutor who uses deceptive or reprehensible methods to persuade the jury commits misconduct, and such actions require reversal under the federal Constitution when they infect the trial with such ‘“unfairness as to make the resulting conviction a denial of due process.”’ [Citations.] Under state law, a prosecutor who uses such methods commits misconduct even when those actions do not result in a fundamentally unfair trial. [Citation.] In order to preserve a claim of misconduct, a defendant must make a timely objection and request an admonition; only if an admonition would not have cured the harm is the claim of misconduct preserved for review. [Citation.]” (People v. Alfaro (2007) 41 Cal.4th 1277, 1328, quoting Darden v. Wainwright (1986) 477 U.S. 168, 181 [106 S.Ct. 2464, 91 L.Ed.2d 144], quoting Donnelly v. DeChristoforo (1974) 416 U.S. 637, 643 [94 S.Ct. 1868, 40 L.Ed.2d 431].)
Here, defense counsel failed to object or to request an admonition. Accordingly, defendant’s contention has been forfeited. This is not a case in which an admonition could not have cured the harm. Defendant argues that “the bell could not be ‘unrung.’” To the contrary, however, assuming the trial court sustained such an objection, reprimanded the prosecutor, and admonished the jury to disregard this characterization, thus throwing the weight of its authority behind defendant’s position, we see no reason why the jury could not have followed the admonition.
Separately and alternatively, however, even if not waived, the contention lacks merit. “Prosecutors . . . are held to an elevated standard of conduct. ‘It is the duty of every member of the bar to “maintain the respect due to the courts” and to “abstain from all offensive personality.” [Citation.] A prosecutor is held to a standard higher than that imposed on other attorneys because of the unique function he or she performs in representing the interests, and in exercising the sovereign power, of the state. [Citation.] . . . Prosecutors who engage in rude or intemperate behavior, even in response to provocation by opposing counsel, greatly demean the office they hold and the People in whose name they serve. [Citations.]’ [Citations.]” (People v. Hill (1998) 17 Cal.4th 800, 819-820, quoting People v. Espinoza (1992) 3 Cal.4th 806, 819-820, quoting Bus. & Prof. Code, § 6068, subds. (b) and (f).)
Even so, “‘“‘a prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. [Citations.] . . . ’ [Citation.] ‘A prosecutor may “vigorously argue his case and is not limited to ‘Chesterfieldian politeness’” [citation], and he may “use appropriate epithets . . . .”’” [Citation.]’ [Citation.]” (People v. Stanley (2006) 39 Cal.4th 913, 951-952, quoting People v. Williams (1997) 16 Cal.4th 153, 221, quoting People v. Wharton (1991) 53 Cal.3d 522, 567-568.)
The evidence, if believed, showed that defendant repeatedly raped and sodomized his niece, starting on her eighth birthday; he also raped his six-year-old cousin. Describing him as a “monster” was no more than fair comment on this evidence. (People v. Rundle (2008) 43 Cal.4th 76, 163 [not misconduct to state that “defendant ‘didn’t learn how to conduct himself like a human being,’ but instead acted ‘like a caveman’”]; People v. Harrison (2005) 35 Cal.4th 208, 245-246 [not misconduct to call defendant, among other things, “‘a head hunter,’” “‘[a] one-man gang,’” and “‘the lowest common denominator and the complete and total essence of evil’”]; People v. Mayfield (1997) 14 Cal.4th 668, 789 [not misconduct to compare defendant to “‘a mad dog’”]; People v. Thomas (1992) 2 Cal.4th 489, 537 [not misconduct to describe defendant as “‘mass murderer, rapist,’” “‘perverted murderous cancer,’” and “‘walking depraved cancer’”].)
Defendant relies on cases dealing with overt or covert appeals to racial, ethnic, or religious prejudice. (E.g., People v. Simon (1927) 80 Cal.App. 675, 677 [prosecutor stated, “There has, of course, grown up a suspicion in this country with reference to fires, whenever a Jew has anything to do with it. . . . [T]here has been so many fires where the Jew lived in the house in order to obtain the money,” italics omitted].) There was none of that in this case. He also relies on People v. Parmelee (1934) 138 Cal.App. 123, involving an alleged assault on a police officer during a Depression-era “‘hunger parade.’” (Id. at p. 124.) There, the prosecutor was allowed not only to ask defense witnesses irrelevant questions about their membership in the Communist Party, but also to argue that some of the demonstrators were Communists who “hate police officers” and who were there to “deposit the seeds of anarchy . . . .” (Id. at pp. 125-126.) There was no evidence that the defendant was a Communist. (Id. at p. 124.) Here, by contrast, there was ample admissible evidence to back up the prosecutor’s argument.
Finally, inasmuch as the prosecutor did not commit misconduct, defense counsel did not render ineffective assistance by not objecting and requesting an admonition. (People v. Parson (2008) 44 Cal.4th 332, 368.)
V
THE EFFECT OF THE SIXTH AMENDMENT ON THE IMPOSITION OF UPPER-TERM SENTENCES
Defendant contends that the trial court erred by imposing upper-term sentences based on facts neither admitted by him nor found beyond a reasonable doubt by a jury.
A. Additional Factual and Procedural Background.
On count 1 (aggravated sexual abuse of a child), the trial court sentenced defendant to an indeterminate term of 15 years to life. On count 2 (oral copulation of a child), which the trial court selected as the principal term, it sentenced defendant to 8 years, the upper term. (Pen. Code, § 288a, subd. (c)(1).) On count 3 (continuous sexual abuse of a child), it sentenced defendant to 16 years, the upper term (Pen. Code, § 288.5, subd. (a)), stayed pursuant to Penal Code section 654.
The conviction and, a fortiori, the sentence on count 3 were erroneous.
The trial court found “numerous factors in aggravation”:
“The victim was the niece of the defendant. He took advantage of a position of trust with the victim and with her parents. They trusted him to be the caretaker for the children in their absence.
“They provided him with a place to live and other necessities of life. Instead of being grateful, he did all he could to ruin the life of both the parents and of the only daughter.
“They are both in therapy, or at least were in therapy at the conclusion of the trial and may never be the same. Keep in mind that this young girl was only eight years old when this started. And that [is] pursuant to rule 4.421 sub (a) sub (11).
“The defendant had plenty of time to think about his actions in this case and reflect on his conduct and discontinue his criminal contact or at a minimum warn his brother and his wife to protect the child. He did nothing.
“The defendant committed these acts over an extended period of time. He had plenty of time to reflect on his conduct. But he chose, once again, to continue molesting his niece.
“These were separate offenses and deserve separate punishments. These criminal acts occurred on at least 11 occasions. The victim in this case . . . was in constant fear of the next attack.
“When caught in the act by the victim’s brother, he blames the brother of the victim for the criminal conduct. The victim in this case was particularly vulnerable.
“The defendant was living with the family and had continuing access to the victim. This is found in 4.421(a)(3). This was the same home as the victim’s family.
“The defendant’s actions in this case shows planning, sophistication, or professionalism, as outlined in 4.421 sub (a) sub (8). She was fearful of what the defendant might do to her or her family if she told her parents.
“Defendant has shown absolutely no remorse. He merely blames others for his conduct.
“As I’ve said before, the victim’s parents were in therapy because of the conduct of the defendant. The child will never be the same. [The d]amage caused by the defendant in this case is beyond calculation.”
It found only one factor in mitigation — that defendant had “a very small criminal record, [although] he has been in trouble basically since he had the ability to go out and misbehave.” (See Cal. Rules of Court, rule 4.423(b)(1) [defendant has no prior record, or has an insignificant record of criminal conduct].)
B. Analysis.
“Other than a prior conviction, [citation] . . . ‘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.’ [Citations.]” (Cunningham v. California (2007) 549 U.S. 270, ___ [127 S.Ct. 856, 864, 166 L.Ed.2d 856], quoting Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [120 S.Ct. 2348, 147 L.Ed.2d 435].) “‘[T]he relevant “statutory maximum” . . . is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.’ [Citation.]” (Cunningham, at p. 860, quoting Blakely v. Washington (2004) 542 U.S. 296, 303-304 [124 S.Ct. 2531, 159 L.Ed.2d 403].) Thus, ordinarily, “the middle term prescribed in California’s statutes, not the upper term, is the relevant statutory maximum. [Citation.]” (Cunningham, at p. 868.)
Here, the trial court did impose upper terms based on findings not made by a jury nor found beyond a reasonable doubt. None of those findings was within the prior conviction exception. (See generally People v. Towne (2008) 44 Cal.4th 63, 75-83.) Accordingly, it erred.
The People do not really argue otherwise. However, they do argue that the error was harmless, “because a jury . . . unquestionably would have found one qualifying statutory aggravating circumstance true beyond a reasonable doubt.” We agree.
“The denial of the right to a jury trial on aggravating circumstances is reviewed . . . to determine whether it appears ‘beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’ [Citations.] The reviewing court must ‘ask[] whether the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element.’ [Citation.]” (People v. Sandoval (2007) 41 Cal.4th 825, 838, quoting Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705] and Neder v. United States (1999) 527 U.S. 1, 19 [119 S.Ct. 1827, 144 L.Ed.2d 35].) “[I]f a reviewing court concludes, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury, the Sixth Amendment error properly may be found harmless.” (Sandoval, at p. 839.)
Here, we have no doubt whatsoever that a jury would have found, as the trial court did, that defendant took advantage of a position of trust or confidence to commit the offenses. (Cal. Rules of Court, rule 4.421(a)(11).) Jane was defendant’s niece. “‘[A] confidential relationship . . . is particularly likely to exist when there is a family relationship . . . .’ [Citations.]” (Estate of Sanders (1985) 40 Cal.3d 607, 615, quoting Kudokas v. Balkus (1972) 26 Cal.App.3d 744, 750.) Moreover, Jane’s parents brought defendant into their home so he would have a place to live. They left Jane home alone with him. Indeed, according to defendant’s own testimony, they relied on him to baby-sit her. (See People v. Miranda (1987) 196 Cal.App.3d 1000, 1002 [fact that defendant, as victim’s aunt and baby-sitter, occupied position of trust was proper aggravating circumstance justifying upper term].) There was no evidence that defendant was not in a position of trust and confidence. We therefore conclude that the error was harmless.
VI
DISPOSITION
For the reasons stated in footnote 5, ante, defendant’s conviction on count 3 (continuous sexual abuse of a child), as well as the 16-year sentence imposed on count 3 and then stayed, are stricken. The judgment as modified is affirmed. The trial court is directed to prepare an amended abstract of judgment reflecting the modification and to forward certified copies to the Department of Corrections and Rehabilitation.
We concur: McKINSTER, Acting P.J., KING, J.
Penal Code section 288.5, subdivision (c), as it stood when the crimes were committed, provided: “No other felony sex offense involving the same victim may be charged in the same proceeding with a charge under this section unless the other charged offense occurred outside the time period charged under this section or the other offense is charged in the alternative.” (Former Pen. Code, § 288.5, subd. (c), Stats. 1989, ch. 1402, § 4, p. 6140.)
The same subdivision, as it now stands, provides: “No other act of substantial sexual conduct, as defined in subdivision (b) of Section 1203.066, with a child under 14 years of age at the time of the commission of the offenses, . . . involving the same victim may be charged in the same proceeding with a charge under this section unless the other charged offense occurred outside the time period charged under this section or the other offense is charged in the alternative.” Substantial sexual conduct includes penetration of the vagina, penetration of the rectum, and oral copulation. (Pen. Code, § 1203.066, subd. (b).) Aggravated sexual abuse of a child requires some form of substantial sexual conduct. (Pen. Code, § 269, subds. (a)(1)-(a)(5).) In this case, it was allegedly committed by forcible sodomy.
All three counts were allegedly committed “between September 2002 and December 2003 . . . .” Accordingly, no matter which version of Penal Code section 288.5, subdivision (c) applies, defendant should not have been convicted on count 3, in addition to counts 1 and 2.
To remedy this error, we will strike the conviction and sentence on count 3. This will have no effect on the total sentence.