Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County, Super. Ct. No. SCN185284, Runston G. Maino, Judge.
McDONALD, J.
A jury convicted appellant David Rust of two counts of lewd and lascivious conduct with a child under the age of 14 (Pen. Code, § 288, sub d. (a)). Prior to trial, Rust admitted the allegation in the information that he had suffered a prior serious felony conviction and a prior strike conviction (§ 667, sub ds. (a)(1), (b)-(i); § 1170.12). The court sentenced Rust to a total term of 25 years.
All further statutory references are to the Penal Code unless otherwise specified.
On appeal, Rust contends (1) the court abused its discretion by admitting evidence revealing the details of child pornography he possessed, (2) the court abused its discretion by admitting evidence of his alleged prior molestation of his daughter, and (3) the court erred by not instructing on battery as a lesser included offense to the charged offenses. He asserts the sentence was erroneous because he could only be convicted of one of the two counts and, in any event, sentence on one of the counts should have been stayed under section 654; he also asserts Cunningham error.
Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham).
I
FACTUAL BACKGROUND
A. The Charged Conduct
In July 2004, 11-year-old Emily and her mother and sisters were staying with Rust's family while visiting San Diego. Emily's mother was a longtime friend of Rust's wife (Linda). Their families were close, and Emily referred to Rust and his wife as Uncle Dave and Aunt Linda.
During the visit, Emily was to sleep with K. (Rust's 15-year-old daughter) in K.'s room, and the other members of Emily's family were distributed in other rooms. On the night of the molestation, Rust's wife slept in the master bedroom but Rust slept on a couch.
Emily went to bed around 10:00 p.m. but she was feeling sick and was coughing. Emily's coughing disturbed K.'s sleep so K. left her room and joined Linda in the master bedroom to sleep. Around 4:00 a.m., Emily awoke and found Rust lying about six inches away from her on K.'s bed. Emily was on lying on her back wearing a t-shirt and pajama bottoms and panties.
Rust placed his hand under her t-shirt and used his palm to rub both her breasts for about four seconds. He then moved his hand from her t-shirt and placed it under her pajama bottoms and panties and rubbed the skin of her buttocks. Rust asked, "Do you like me?" but Emily did not respond. After the second touching, Rust left the room. Emily was mad because what Rust did was "really, really gross."
Rust and Emily had scheduled a morning motorcycle ride. Her mother (Ann) noticed a change in Emily's demeanor, noting Emily appeared upset and sad, but Ann encouraged Emily to go with Rust. Emily complied, but Ann noted that when she got on the motorcycle and put her arm around Rust's waist, Emily had a "disgust[ed] look" on her face. When they returned about 10 minutes later, Ann privately asked Emily whether something was wrong. After about an hour, Emily told Ann about the incident.
Ann and Emily then talked to Rust and Linda about what had happened. Rust admitted he had touched Emily, he loved her, and she was his soul mate. Linda appeared calm and "not very shocked" by the revelation. Rust reacted to Ann's questioning by getting in her face and screaming at her that he had been molested as a child and that she did not understand.
A social worker went to Rust's house to investigate. Rust admitted he "kissed her on the face and touched her on her breast area and touched her buttocks" and he did not do anything else "because she woke up." When asked by the social worker why he touched Emily, Rust responded that earlier in the day Emily had told him "she wanted to spend more time with him and that she loved him, and he thought she meant that in an intimate way." He told the social worker that "he loves little girls. And the little boy in him wants to hug them and make everything all right."
After charges were filed, Rust represented (through his attorney) he would voluntarily surrender in October 2004. Rust did not appear as promised, and in November 2004 the FBI received a tip that Rust was in Utah. They located and arrested him. Rust repeatedly denied his true identity to the arresting agents and claimed he was someone else.
B. The Other Bad Acts Evidence
The Computer Evidence
A federal investigation, conducted independently of the investigation of the charged offenses, found that Rust had downloaded child pornography to his personal computers. Rust's home was searched and his computers seized. The computers contained e-mails and writings authored by Rust that, among other things, described a "Code of Conduct" that should guide an adult in a sexual relationship with a child and conveyed his approval for and experiences with sexual relationships with children. Technicians also found over 1500 images depicting child pornography, some of which were shown (over defense objection) to the jury.
Rust was charged with 10 counts of misdemeanor possession of child pornography and, prior to trial, pleaded guilty to those counts.
The Prior Molestation
K. testified Rust molested her when she was four or five years old, although she had no memory of the details of the incident. K. made it a practice to avoid being alone in the house with Rust. A social worker testified there was a 1994 investigation regarding an incident in which Rust touched K. between her legs and made K. touch his penis, and he admitted (during the investigation of the current incident) it had occurred but that he had been drunk at the time.
C. Defense Case
Rust presented no affirmative evidence. Rust argued there was a reasonable doubt whether he harbored the requisite intent when he touched Emily, arguing that he entered the room and touched her to see if she was in need of medical assistance for her coughing.
II
ANALYSIS
A. The Evidentiary Claims
To prove Rust violated section 288, the prosecution must show (1) a touching of a child under 14 and (2) that the touching was done with the intent to gratify the child's or the defendant's sexual desires. (People v. Raley (1992) 2 Cal.4th 870, 907.) The first element was essentially conceded at trial and the only disputed issue was whether Rust possessed the requisite intent. Rust argues admitting the photographs from his computer and testimony concerning the prior molestation of his daughter constituted prejudicial error.
Legal Principles
Evidence is relevant when it has "any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) "While there is no universal test of relevancy, the general rule in criminal cases might be stated as whether or not the evidence tends logically, naturally, and by reasonable inference to establish any fact material for the prosecution or to overcome any material matter sought to be proved by the defense. [Citation.] Evidence is relevant when no matter how weak it may be, it tends to prove the issue before the jury." (People v. Slocum (1975) 52 Cal. App.3d 867, 891.)
The Legislature has explicitly determined, by its enactment of Evidence Code section 1108, that evidence of other sex-related crimes is relevant and admissible to prove a predisposition to commit sex crimes. However, admission under section 1108 "has a safeguard against the use of uncharged sex offenses in cases where the admission of such evidence could result in a fundamentally unfair trial. Such evidence is still subject to exclusion under Evidence Code section 352. [Citation.] By subjecting evidence of uncharged sexual misconduct to the weighing process of section 352, the Legislature has ensured that such evidence cannot be used in cases where its probative value is substantially outweighed by the possibility that it will consume an undue amount of time or create a substantial danger of undue prejudice, confusion of issues, or misleading the jury. [Citation.] This determination is entrusted to the sound discretion of the trial judge who is in the best position to evaluate the evidence." (People v. Fitch (1997) 55 Cal. App.4th 172, 183.)
The Photographs
We conclude the photographs were admissible under Evidence Code section 1101. Evidence Code section 1101 permits the introduction of evidence of other offenses when relevant to prove an issue other than predisposition to commit the offense, such as intent. (Id. at sub d. (b).) Rust's possession of images depicting prepubescent girls engaged in sexual acts with adults was relevant evidence from which a trier of fact could infer he harbored the intent required by section 288 when he touched Emily. (See People v. Memro (1995) 11 Cal.4th 786, 861-862; People v. Dunnahoo (1984) 152 Cal. App.3d 561, 576.)
It also appears the photographs would be admissible under Evidence Code section 1108. The offense to which he pleaded guilty is one of the other crimes listed by section 1108 that qualifies as admissible propensity evidence. (Evid. Code, § 1108, subd. (d)(1)(A).) Accordingly, evidence of his commission of that offense was independently admissible under the latter section as propensity evidence apart from his intent.
However, evidence otherwise admissible under Evidence Code section 1101 is still subject to exclusion under Evidence Code section 352, and Rust appears to assert the trial court abused its discretion in admitting the photographs over his section 352 objection. However, a court need not exclude photographs merely because they contain graphic depictions of persons that could have been the subject of testimonial description. (People v. Scheid (1997) 16 Cal.4th 1, 18-19.) The court here did not permit an avalanche of every pornographic photograph but limited the evidence to a few examples. Moreover, the prosecutor noted there were even more disturbing photographs (such as children in bondage) he was not offering, and the court observed the proffered examples did not seem to depict "any overt signs of distress by these young girls [in the pictures]," suggesting the court agreed these photographs (while inherently disturbing) were not unnecessarily grotesque examples. Under these circumstances, we cannot find the court abused its discretion in concluding the photographs' probative value (on either Rust's intent under § 1101 or as propensity evidence under § 1108) outweighed their prejudicial impact.
The Prior Molestation
Rust also assert the trial court abused its discretion by allowing evidence of his molestation of K. because its remoteness (approximately 10 years earlier) reduced its probative value, while it was highly inflammatory because it involved a victim much younger than the present victim. The evidence was admissible under either Evidence Code sections 1101 or 1108, and involved neither graphic descriptions of the events nor particularly egregious conduct. The court carefully considered and weighed each of the relevant considerations, and Rust has not shown the trial court clearly abused its discretion in concluding the probative value of the evidence outweighed its prejudicial impact.
Indeed, because K. could not recall any details of the touchings, the description of the molestations were brief and clinical recitations of the touchings.
B. The Lesser Included Offense Issue
Rust requested a jury instruction on battery as a lesser included offense to the charged offenses. The trial court denied the request, and Rust asserts this was prejudicial error.
Legal Principles
A trial court must instruct the jury not only on the crime charged but also on lesser offenses both included within the crime charged and supported by the evidence. (People v. Barton (1995) 12 Cal.4th 186, 190, 194-195.) "[T]he existence of 'any evidence, no matter how weak' will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is 'substantial enough to merit consideration' by the jury. [Citations.] 'Substantial evidence' in this context is ' "evidence from which a jury composed of reasonable [persons] could . . . conclude[ ]" ' that the lesser offense, but not the greater, was committed. [Citations.]" (People v. Breverman (1998) 19 Cal.4th 142, 162.) Pure speculation does not constitute the requisite substantial evidence sufficient to support a lesser included offense instruction. (People v. Wilson (1992) 3 Cal.4th 926, 942.) If there is no proof (other than an outright and inexplicable rejection of portions of the prosecution's evidence) the offense was less than that charged, an instruction on a lesser included offense need not be given. (People v. Wickersham (1982) 32 Cal.3d 307, 323-324, overruled on another ground in People v. Barton, supra, 12 Cal.4th at pp. 200-201.)
Even where the trial court erroneously failed to instruct on a lesser included offense supported by the evidence, the error is one of state law alone. (People v. Breverman, supra, 19 Cal.4th at pp. 165-179.) It does not require reversal unless "an examination of the entire record establishes a reasonable probability that the error affected the outcome." (Id. at p. 165; People v. Watson (1956) 46 Cal.2d 818, 836.)
Analysis
We conclude that, even assuming battery is a necessarily lesser included offense to the charged offense of section 288, subdivision (a), there was no error in declining the requested instruction on battery because there was no substantial evidence from which a reasonable jury could conclude Rust committed the lesser offense of battery but not the greater offense of lewd acts. The only theory upon which the jury could have found a battery was that Rust did not touch Emily with the intent to gratify either her or his sexual desires. The only evidence is that Rust did possess the requisite intent: the places he touched (her breasts and buttocks), the manner he touched them (under her clothes with skin to skin contact), and the time and place (at night and in her bed), all point to sexual activity. Moreover, his words to Emily at the time (inquiring as to her affections toward him), and to Emily's mother (he touched Emily because he loved her, they were soul mates, and he had been molested as a child) and the social worker (he kissed Emily and touched her private parts because Emily had told him that day that she loved him and he thought she meant that in an intimate way), bespeak a sexual intent. Finally, the independent evidence of his pedophilia confirmed that he is sexually aroused by children. Although Rust protests that there was evidence from which a jury could have concluded he harbored an innocent intent (of checking on her medical well-being), the skin to skin touching of her private parts and the utter absence of any contemporaneous statements by Rust inquiring as to her health convinces us there was no substantial evidence (other than an outright and inexplicable rejection of the affirmative evidence) that the offense was less than that charged.
An offense is necessarily included in the greater offense "when the greater offense cannot be committed without necessarily committing the lesser offense." (People v. Marshall (1997) 15 Cal.4th 1, 38.) The court in People v. Thomas (2007) 146 Cal.App.4th 1278 has recently concluded battery is a lesser included offense to a charge of violating section 288, subdivision (a), because it is impossible to commit the greater crime of lewd acts without also committing the lesser offense of battery. (Thomas, at pp. 1291-1293.) We assume Thomas is correct for purposes of our analysis.
The same facts convince us that, even if the court erred by not giving the requested instruction, any error was harmless. In People v. Thomas, supra, 146 Cal. App.4th 1278, the court concluded battery was a lesser included offense to a charge of violating section 288, subdivision (a), but nevertheless found the error harmless as to the counts involving touchings of the victims' buttocks. The court reasoned that, under the evidence of that case (i.e. the touchings involved the victim' buttocks, some touchings were accompanied by comments suggesting a sexual interest, and the defendant had shown a sexual attraction to boys), the error was harmless because "no reasonable jury could have concluded that the incident was merely an offensive touching rather than a lewd act within the meaning of section 288." (Thomas, at pp. 1293-1294.) Here, Rust's actions, words and sexual preferences convince us no reasonable jury could have concluded the incident was merely a battery rather than a lewd act within the meaning of section 288.
C. The Multiple Convictions Issues
Rust argues it was error to permit the jury to convict him of two offenses. He alternatively asserts that, even if he was properly convicted of two offenses, it was error not to stay execution of sentence on one of the convictions pursuant to section 654.
Legal Framework
"A criminal defendant may be convicted of multiple statutory violations citation where he commits identical sex acts which are briefly interrupted . . . ." (People v. Harrison (1989) 48 Cal.3d 321, 324 (Harrison).) In People v. Scott (1994) 9 Cal.4th 331, the court applied Harrison to uphold multiple convictions under section 288 for conduct occurring in a single episode, reasoning that "one offense is complete and another one begins whenever the perpetrator stops and resumes unlawful activity during a sexual assault." (Scott, at p. 345.) Scott reasoned that a violation of section 288 is complete as soon as the requisite touching of a child under the age of 14 occurs with a lewd intent. (Scott, at pp. 341, 343.) "Each individual act that meets the requirements of section 288 can result in a 'new and separate' statutory violation. Citation. . . . A more lenient rule of conviction should not apply simply because more than one lewd act occurs on a single occasion. Citation. Under defendant's approach, the clever molester could violate his victim in numerous lewd ways, safe in the knowledge that he could not be convicted and punished for every act. In light of the special protection afforded underage victims, we cannot conceive that the Legislature intended this result." (Id. at pp. 346-347.) Thus, Scott supports multiple convictions under section 288 where distinct lewd acts are separated by at least a brief interruption.
In People v. Jimenez (2002) 99 Cal. App.4th 450 (Jimenez), the court rejected a claim that the fondling of several body parts on one occasion could support only one conviction under section 288. (Jimenez, at pp. 452-454.) Jimenez concluded there was no reasonable justification for treating several acts of fondling differently than other types of contact between the perpetrator and the victim. "It cannot reasonably be doubted that, when fondling of an underage victim moves from one area of the body to another, a separate outrage has occurred. A defendant who violates multiple areas of the victim's body is deserving of greater punishment." (Id. at p. 456.) Jimenez held that each fondling of a body part accompanied by the requisite intent constitutes a violation of section 288 (Jimenez, at pp. 455-456), and "[t]here is no requirement that there be a delay between the completion of one act and the commencement of another." (Id. at p. 457.)
Multiple Convictions Were Proper
Rust asserted below that there was some evidence from which a jury could have found the touchings were not distinct acts but were instead aspects of a continuous single touching, and submitted a special instruction stating:
"In order to find defendant guilty of multiple counts of lewd act[s] upon Emily D. you must find that he engaged in separate and distinct touching of her. You must find that each alleged count was completed, that the defendant stopped and resumed his unlawful activity during a sexual assault. If you find that defendant only engaged in one unlawful touching or groping that consisted of one continuous course of unlawful conduct, you may only convict him of one count."
The court rejected the instruction, reasoning (1) the matter was covered by CALJIC 17.02, (2) the evidence showed two distinct touchings, and (3) Scott barred defense counsel from amalgamating all touchings during the single incident into a single offense.
We conclude the trial court correctly rejected the instruction. First, it incorrectly states the law articulated in Scott and Harrison. Harrison concluded that multiple similar acts committed in rapid succession could support multiple convictions as long as there was some interruption, even a brief one, between the acts (Harrison, supra, 48 Cal.3d at p. 324), and Rust's proposed instruction contained no articulation of the "however brief" test for multiple acts in rapid succession. Moreover, Harrison addressed multiple identical acts occurring in rapid succession, and did not hold that different acts, committed with hands fondling different body parts, must be separated by time or by force to warrant separate convictions. To the contrary, Harrison noted "that where the acts are of an entirely different nature, they may result in multiple convictions even if committed in rapid succession. Courts have long assumed that no minimum amount of time must separate such acts, nor must they be punctuated by any other significant nonsexual activity." (Id. at p. 330.) Here, the discrete fondling of separate sexual areas appears to qualify for Harrison's "no minimum amount of time" separating the acts.
Finally, even assuming the proposed instruction was correct (in requiring an interruption when the fondling involves wholly distinct areas of the victim's body) and was not incomplete (by omitting the "however brief" test for separating different offenses), there is no substantial evidence from which a jury could have found Rust's touchings were mere segments of an uninterrupted continuum. The only evidence on the subject came from Emily. She testified Rust slipped his hand down her t-shirt from the top and rubbed her breasts in a circular motion for about four seconds. He then removed his hand before placing his hand down inside her pajamas and panties, about 12 inches inside her pajamas, and rubbing her buttocks. After he was finished rubbing her buttocks he asked, "Do you like me?" This evidence clearly permits a conclusion there was some hiatus, however brief, between the two touchings.
Rust argues that the cross-examination could support a finding that the breast rubbing and buttocks rubbing were parts of one continuous motion lasting three or four seconds. Although defense counsel framed a series of questions that appeared to elicit Emily's agreement to that scenario, Emily clarified on redirect that was not what had happened, explaining that Rust touched her breasts, and then removed his hand from her shirt before moving his hand down to touch her buttocks. Because there is no substantial evidence that the two touchings were incidental to a single rubbing, but were instead interrupted by at least some hiatus, the instruction requested by Rust was not supported by substantial evidence and was properly refused.
The questions and answers on cross-examination were:
On redirect, the questions were:
The Section 654 Issue
Rust alternatively contends the four-year sentence on the second count should have been stayed under section 654.
Rust peremptorily asserts that imposition of consecutive sentences denies his right to due process. However, it appears Rust's constitutional argument is predicated on his claim that imposing consecutive sentences was error under section 654. Because we reject Rust's section 654 claim, we do not reach his due process argument.
Section 654 provides: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." The focus of section 654 is to protect against multiple punishment in situations where "there are several offenses committed during 'a course of conduct deemed to be indivisible in time.' Citation." (Harrison, supra, 48 Cal.3d at p. 335.)
A claim under section 654 is reviewed for substantial evidence. (Jimenez, supra, 99 Cal. App.4th at pp. 456-457.) In assessing whether the crimes were divisible, the court must make factual determinations on the defendant's intent and objectives, and the court's implied factual findings will be upheld if supported by substantial evidence. (People v. Cleveland (2001) 87 Cal. App.4th 263, 271.)
Emily testified that Rust touched her breasts, then removed his hand, and then slipped it down her pants to rub her buttocks. In People v. Madera (1991) 231 Cal. App.3d 845 (cited with approval in Scott, supra, 9 Cal.4th at p. 347-348, fn. 9), the court analyzed a claim that multiple section 288 convictions triggered application of section 654. The Madera court concluded section 654 applies where one act "directly facilitates or is merely incidental to the commission of" the second act, but would not apply where the evidence showed the act was not preparatory or incidental to the other but was instead a source of independent sexual gratification each time he committed the different unlawful act. (Madera, at p. 855.)
Here, there is substantial evidence to support the implied findings that each act was separate from each other, and were a source of independent sexual gratification, rather than merely an act that "directly facilitate[d] or [was] merely incidental to" the other act. (People v. Madera, supra, 231 Cal. App.3d at p. 855.) The two distinct acts, separated in time from each other (even though perhaps only briefly), were not inextricably related to the pursuit of each other. Thus, substantial evidence supports a reasonable inference that Rust's touching of Emily's breasts and buttocks were each for the purpose of arousal, rather than being preparatory or incidental to each other.
D. The Sentence
Rust asserts that selection of the upper term on count 1 violated Cunningham because it was based on facts not found by the jury beyond a reasonable doubt. In Cunningham, the high court concluded California's determinate sentencing law (DSL) violates the Sixth Amendment because it "allocates to judges sole authority to find facts permitting the imposition of an upper term sentence[.]" (Cunningham, supra, ___ U.S. at p. ___, 127 S.Ct. at p. 870.) Relying on Cunningham, Rust contends the trial court's imposition of the upper term in this case violated his Sixth Amendment right to a jury trial.
However, the California Supreme Court's recent decision in People v. Black (2007) 41 Cal.4th 799 (Black II) concluded a trial court may impose the upper term without offending Cunningham if the defendant "is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles." (Black II, at p. 813.) We conclude Black II controls this case and mandates affirmance of the sentence
In Black II, our Supreme Court addressed the same issue raised by Rust here: whether imposition of the upper term violated the defendant's right to a jury trial. The Black II court noted that in Blakely v. Washington (2004) 542 U.S. 296, the United States Supreme Court "explicitly recognized the legitimate role of 'judicial fact finding' in indeterminate sentencing, in which the judge may 'implicitly rule on those facts he deems important to the exercise of his sentencing discretion.' [Quoting Blakely, at p. 309.]" (Black II, supra, 41 Cal.4th at pp. 812-813.) Accordingly, the Black II court concluded that "so long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury." (Id. at p. 813.) The Black II court added that "[t]he facts upon which the trial court relies in exercising discretion to select among the terms available for a particular offense 'do not pertain to whether the defendant has a legal right to a lesser sentence--and that makes all the difference insofar as judicial impingement upon the traditional role of the jury is concerned.' [Citation.]" (Ibid.)
After noting that "the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term" under California's DSL, the Black II court concluded that "if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not 'legally entitled' to the middle term sentence, and the upper term sentence is the 'statutory maximum' " for Sixth Amendment purposes. (Black II, supra, 41 Cal.4th at p. 813.) The Black II court then noted the United States Supreme Court "consistently has stated that the right to a jury trial does not apply to the fact of a prior conviction[,] [citations] [and that] 'recidivism . . . is a traditional, if not the most traditional, basis for a sentencing court's increasing an offender's sentence.' [Citation.]" (Black II, at p. 818].) On that basis, the Black II court reasoned a defendant's criminal history alone may render him or her eligible for the upper term. (Ibid.)
The Black II court, after noting the probation report reflected the defendant in Black II had convictions both numerous (three misdemeanors and two felonies) and of increasing seriousness, next addressed the defendant's argument that, even if the fact of a prior conviction may not be a jury issue, he was nevertheless entitled to a jury trial (under Cunningham) on the issues of numerosity or increasing seriousness. The Black II court, rejecting the argument, explained the defendant "reads the 'prior conviction' exception too narrowly. [Citations.] As we recognized in [People v. McGee (2006) 38 Cal.4th 682], numerous decisions from other jurisdictions have interpreted the Almendarez-Torres [v. U.S. (1998) 523 U.S. 224] exception to include not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions. [Citations.] [¶] The determinations whether a defendant has suffered prior convictions, and whether those convictions are 'numerous or of increasing seriousness' (Cal. Rules of Court, rule 4.421 (b)(2)), require consideration of only the number, dates, and offenses of the prior convictions alleged. The relative seriousness of these alleged convictions may be determined simply by reference to the range of punishment provided by statute for each offense. This type of determination is 'quite different from the resolution of issues submitted to a jury, and is one more typically and appropriately undertaken by a court.' [Quoting McGee, supra, 38 Cal.4th at p. 706.]" (Black II, supra, 41 Cal.4th at pp. 819-820. fn. omitted.)
Here, the court specifically noted Rust's prior convictions were numerous and of increasing seriousness. Because Rust's numerous convictions were alone a sufficient basis to render him eligible for the upper term, we are compelled under Black II to conclude Rust suffered no Sixth Amendment violation by the trial court's exercise of its discretion in selecting the upper term in his case based on facts determined by the trial court. (Black II, supra, 41 Cal.4th at p. 820 .)
DISPOSITION
The judgment is affirmed.
WE CONCUR: BENKE, Acting P. J., IRION, J.
"Q: Okay, when he reached the hand down [the top of your t-shirt], was it down there for one or two seconds, or three or four seconds?"
"A: Three to four seconds."
"Q: Isn't it true that that hand never was pulled out at all; the hand stayed down there, didn't it?"
"A: Yes, Yes."
"Q: So the hand stayed down, and then after that it went down toward the butt?"
"A: Yes."
"Q: I think [defense counsel] was asking you if the hand never came out of the shirt. Sounds like a totally dumb question. [¶] When he touched your butt, his hand didn't like go all the way down the shirt and through the shirt and down [to your buttocks], did it?"
"A: No."
"Q: He pulled it out and went down your butt, too?"
"A: Yes."