Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Michael L. Schuur, Judge. Affirmed. Los Angeles County Super. Ct. No.VA066423
Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer and Edmund G. Brown Jr., Attorneys General, Robert R. Anderson and Dane R. Gillette, Chief Assistant Attorneys General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels and Richard S. Moskowitz, Deputy Attorneys General, for Plaintiff and Respondent.
EPSTEIN, P. J.
Ricardo Rosas appeals from the judgment entered following a remand for the limited purpose of resentencing after this court determined the trial court had erred in concluding full, consecutive sentencing was mandatory under Penal Code section 667.6, subdivision (d). Following remand, he was sentenced to prison for a total of 12 years for having committed three counts of forcible lewd acts upon a child (Pen. Code, § 288, subd. (b)(1)) to whom he was a stranger (Pen. Code, § 1203.66, subd. (a)(3)) with substantial sexual conduct (Pen Code, § 1203.066, subd. (a)(8)) and use of force, violence, duress, menace and fear of bodily injury (Pen. Code, § 1203.066, subd. (a)(1)).
After review of the record, appellant’s court-appointed counsel filed an opening brief requesting this court to independently review the record pursuant to the holding of People v. Wende (1979) 25 Cal.3d 436, 441.)
On February 23, 2004, we advised appellant that he had 30 days within which to personally submit any contentions or issues which he wished us to consider. An extension to file a supplemental brief was granted to May 24, 2004. On May 17, 2004, appellant filed a supplemental brief on appeal challenging the sufficiency of evidence to support his convictions.
On June 15, 2004, this court filed its opinion stating we had examined the entire record and we were satisfied that no arguable issues existed and that appellant had, by virtue of counsel’s compliance with the Wende procedure and our review of the record, received adequate and effective appellate review of the judgment entered against him.
On July 14, 2004, appellant filed a motion for this court to withdraw its opinion and for permission to file a supplemental brief. On July 14, 2004, this court ordered that the opinion filed on June 15, 2004, be withdrawn and permission to file appellant’s supplemental brief, received July 14, 2004, was granted. Respondent was granted permission to file a supplemental response no later than August 13, 2004, and appellant was granted permission to file a supplemental reply brief by September 2, 2004. Respondent did not file a supplemental brief, nor did appellant file a supplemental reply brief.
Appellant contended based on Blakely v. Washington (2004) 542 U.S. 296, remand to the trial court was required for a jury trial on the aggravating factors or alternatively for imposition of a midterm sentence on the base term and concurrent sentences on the subordinate counts.
On April 28, 2005, this court filed its opinion reversing the sentencing and remanding the matter to the trial court for resentencing and in all other respects affirming the judgment.
Thereafter, the California Supreme Court granted Petition for Review. On September 7, 2005, the matter was transferred to this court with directions to vacate our decision and to reconsider the cause in light of People v. Black (2005) 35 Cal.4th 1238.
On October 31, 2005, we filed our opinion affirming the judgment and concluding in light of People v. Black, supra, 35 Cal.4th 1238, no constitutional error in sentencing.
Appellant, thereafter, filed a petition for writ of certiorari in the United States Supreme Court. While the petition was pending, that court decided Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham) and later granted appellant’s certiorari petition, vacated our judgment, and remanded the matter to us for further consideration in light of Cunningham. We recalled the remittitur, vacated the opinion, and granted the parties leave to file supplemental briefs addressing the effect, if any, of Cunningham on appellant’s sentence. While the case was pending, the California Supreme Court considered Cunningham issues in People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825. We afforded the parties additional time to address those opinions. After review of Cunningham, Black II, Sandoval, and the parties’ supplemental briefs, we affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
The record establishes that in July 2001, appellant took the 10-year-old daughter of a woman he had recently met into the bedroom of the woman’s apartment. He told the young girl his name was “Richie Rich” and put the bed in front of the door, preventing the door from opening. The victim was wearing shorts over a bathing suit, and appellant removed her shorts. Appellant’s young victim was frightened because she thought something bad was going to happen to her. She believed she could not leave the room because appellant was a “grown up” and bigger than she and that the bed kept anyone, including her mother, from entering the room and helping her. Appellant told his young victim to close her eyes, which she did because she was frightened, moved her bathing suit to the side and began a sexual assault that included licking the girl’s vaginal area, rubbing and penetration of her vaginal area with his finger, and rubbing and penetration of her vaginal area with his penis. The victim felt pain when appellant put his finger in her vagina and when he tried to force his penis into her vagina.
Appellant testified in his own defense, denying touching the victim with his penis and any penetration, but admitting the other acts to which the victim testified. Appellant explained that the victim told him to close the bedroom door and move the bed because she wanted to tell him a secret. She told appellant “she was going to be 12 to 13 years old,” and said “she had already had relations before.” The prosecutor asked: “So you look at this 12 to 13 year old and she said she had had sex before, and just, you couldn’t resist. Is that what you’re telling us?” Appellant answered: “Of course, that’s what I’m saying.”
At sentencing, the court stated that appellant “is the worst type of predator that there is. He goes into a stranger’s house. He locks a little girl in a room and then does all these things to her. I don’t know what can be much worse than that. [¶] But, in any event, he’s not eligible for probation, because the special allegations were found true. Probation is denied. The court selects count 1 as the principal term or the base term. And the court selects the high term of eight years. [¶] And because I do adopt all the aggravating circumstances, one through five in the probation report, and I also adopt the mitigating circumstance in the probation report. The court finds the aggravating factors listed in the probation report 1 and 2 outweigh the mitigating circumstance. [¶] In considering concurrent or consecutive sentences the court adopts the aggravating circumstances 3, 4 and 5, in the probation report, and I intend to impose consecutive sentences of one-third the midterm on counts 2 and 3, and that’s pursuant to California Rules of Court 4.425(D). [¶] So, the sentence then would be, on count 1, the high term of eight years; count 2, an additional and consecutive two years; and on count 3, again, an additional and consecutive two years, both those at one-third the midterm. So, the total aggregate sentence then is 12 years in prison.”
The probation report listed as circumstances in aggravation:
DISCUSSION
“In Cunningham, the United States Supreme Court, applying principles established in its earlier decisions in Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [147 L.Ed.2d 435, 120 S.Ct. 2348] (Apprendi) and Blakely v. Washington[, supra,] 542 U.S. 296 . . . (Blakely), concluded that California’s [determinate sentencing law] DSL does not comply with a defendant’s right to a jury trial. ‘[U]nder the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence.’ [Citation.]” (Sandoval, supra, 41 Cal.4th at p. 835.)
“The United States Supreme Court has recognized two exceptions to a defendant’s Sixth Amendment right to a jury trial on an aggravating fact that renders him or her eligible for a sentence above the statutory maximum. 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. (Blakely, supra, 542 U.S. at p. 303.) 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.]” (Sandoval, supra, 41 Cal.4th at pp. 836-837.) Here, the trial court selected the upper term based on the first two factors referred to in the probation report, that the crime “involved a high degree of cruelty, viciousness, or callousness” and that the victim “was particularly vulnerable.” Neither factor fell within the two exceptions set forth in Blakely and we conclude, therefore, appellant’s Sixth Amendment rights were violated by imposition of the upper term.
The denial of the right to a jury trial on aggravating circumstances is reviewed under the harmless error standard. (Sandoval, supra, 41 Cal.4th at p. 838.) “[W]e must determine whether, if the question of the existence of an aggravating circumstance or circumstances had been submitted to the jury, the jury’s verdict would have authorized the upper term sentence.” (Ibid.) “[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.” (Id. at p. 839.)
In the present case we conclude the error was harmless. While appellant committed his three acts of lewd conduct on his 10-year-old victim, he was holding her captive with no avenue of escape. He had pushed the bed in front of the door, preventing the door from opening, preventing her from escaping, and preventing anyone from coming to her aid. It is difficult to imagine a more vulnerable victim than that. We conclude beyond a reasonable doubt that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true this aggravating circumstance had it been submitted to it and the Sixth Amendment error was harmless.
DISPOSITION
The judgment is affirmed.
We concur:
MANELLA, J., SUZUKAWA, J.
“1. The crime involved a high degree of cruelty, viciousness, or callousness.
“2. The victim was particularly vulnerable.
“3. The manner in which the crime was carried out indicates planning, sophistication, or professionalism.
“4. The defendant took advantage of trust to commit the crime.
“5. Defendant has engaged in violent conduct which indicates a serious danger to society.”
As the only circumstance in mitigation, it was reported that the defendant had no prior record.