Opinion
NOT TO BE PUBLISHED
Received for posting 5/25/10
APPEAL from a judgment of the Superior Court of Los Angeles County No. MA039251, Kathleen Blanchard, Judge.
Bernstein Law Offices Inc., Barry O. Bernstein and Alison Minet Adams for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Laurence M. Daniels, and Roberta L. Davis and Tita Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
PERLUSS, P. J.
Gary Steven Calhoun appeals from the judgment entered after his conviction by a jury on five counts of lewd conduct upon a child, contending the evidence at trial was insufficient to support the verdicts against him, the trial court improperly admitted evidence of uncharged acts of lewd conduct involving children, the court erroneously instructed the jury as to the burden of proof to be applied in considering those uncharged acts and the court erred when it refused to stay the sentences on four counts under Penal Code section 654. Calhoun further contends imposition of a 16 year sentence violated his Sixth Amendment right to a jury trial under Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham) and constituted cruel and unusual punishment. We affirm.
Statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
On a hot afternoon in early July 2005, Dakota E., Calhoun’s 11-year-old granddaughter, and her parents visited Calhoun and his wife at their home in Palmdale. Because of the heat, Dakota spent most of the afternoon in the Calhouns’ large hot tub, while other family members prepared a barbecue lunch and conversed. At one point, Dakota got out of the hot tub to join her father and grandfather in hunting a rabbit on the property. After grilling meat for the lunch, Calhoun got into the hot tub. Dakota joined him soon after. None of the other family members went into the hot tub; instead, they sat in the shade by a nearby pond on the property or watched television in the house.
Dakota and her parents estimated she spent at least two hours in the hot tub with her grandfather. Both parents saw Dakota playing with Calhoun but did not suspect any inappropriate behavior. Her father spent much of the afternoon watching a stock car race and was surprised Calhoun, who was also an avid fan, did not join him. Late in the afternoon, as her mother walked by the hot tub, Dakota softly, but urgently, told her she wanted to get out and go home. Her mother did not question her and told Dakota’s father they needed to leave. Dakota’s mother helped her out of the hot tub and took her inside to change her clothes. While changing, Dakota told her mother Calhoun was “a pervert” and had been touching her. Afraid of precipitating a confrontation between her husband, Calhoun’s stepson, and her in-laws, Dakota’s mother told her daughter they would talk about what had happened when they got home. The family gathered its things and left.
Once home, Dakota told her mother Calhoun had touched her inappropriately but did not describe exactly what he had done to her. Dakota knew about unacceptable touching because her mother had routinely reminded her that no one should be touching her private parts. Dakota’s mother then told her husband about the touching. As she had expected, he was angry. Although he had never done so before after a visit from Dakota’s family, Calhoun called that night and the next morning to make sure the family was all right. Dakota’s father took the calls but did not challenge Calhoun. A week later he drove to Calhoun’s home to confront him.
Although they believed Dakota had been truthful about the touching, Dakota’s parents did not file a report with the police. Over the course of the next year, even though they no longer visited the Calhouns, Dakota’s grades dropped; and she began to exhibit angry and self-destructive behavior. She also refused to let anyone touch or hug her. Worried about her, Dakota’s parents decided to report the incident to rebuild her self-esteem. In response to questioning by a female detective, Dakota revealed that, over the course of two or more hours in the hot tub, Calhoun had repeatedly rubbed her back, chest, thighs and buttocks and had inserted his hand into her bathing suit to rub and touch her labia. He also tried to penetrate her vagina with his finger; and, although he had not succeeded, her vaginal opening was sore for a week after the assault. When she had tried to push away from Calhoun, he pulled her legs so that she was forced to sit on his lap facing him. According to Dakota, she was close enough to feel his penis, which was hard. At trial Dakota testified she tried to get away from Calhoun about 20 times, but he kept pulling her back. During the entire episode, however, she did not try to alert her parents to what was happening until she told her mother, “Get me out of here.”
Although neither Dakota nor her parents disclosed the details of the assault to any other family members, the fact she had accused her grandfather of inappropriately touching her led three other female relatives to volunteer to testify Calhoun had molested them when they were young. Maureen L., 45 years old at the time of trial, had lived with Calhoun for several years when he was married to her sister. When Maureen was 11 and 12 years old, Calhoun had touched her inappropriately more than 10 times, usually when she was seated on the couch watching television with her younger nephews. Sitting under a blanket, Calhoun had first fondled Maureen through her clothes, but he progressed to putting his hands under her clothes and rubbing her clitoris and penetrating her with his finger. Maureen did not tell anyone at the time because she was afraid she would have nowhere to go if she were kicked out of the house. She told no one (other than a roommate some years later) until her sister, having heard about Dakota, called and asked whether Calhoun had ever touched Maureen inappropriately. Maureen told her he had but did not give any details to her sister or learn any details about Dakota’s experience with Calhoun. Maureen decided to testify because she felt guilty that other children had suffered as a result of her silence.
Kristin G. and Celia G., the nieces of Calhoun’s current wife, also agreed to testify. Now in their mid-20’s, they had visited the Calhouns frequently when they were children. Kristin and Celia each testified Calhoun had molested them on numerous occasions over the course of three or four years when they were between the ages of six and 12. Frequently, Calhoun took them for car rides on back roads where he let them sit on his lap and steer his truck. While they sat on his lap, he slipped his hand underneath their shorts and rubbed their vaginal area, including between the labia. On other occasions Calhoun took them for hikes and, while carrying them on his back, fondled them. Both girls knew he was touching the other, but neither told anyone at the time because they were afraid members of the family would be angry. In 2001, however, when Kristin was 19, she told her mother Calhoun had molested both her and Celia. Although Celia was extremely angry Kristin had told about the molestation, she confirmed it had occurred; and their mother took them to the police the next day to file a report.
Although Calhoun and his wife were informed of the allegations, there is no indication in the record any charges were filed.
Before Calhoun molested Dakota, none of the girls (other than Kristin and Celia) knew each other or knew that Calhoun had molested the others.
In response to Dakota’s allegations, Calhoun was charged in an amended information with five counts of lewd acts upon a child (§ 288, subd. (a)), four counts of forcible lewd acts upon a child (§ 288, subd. (b)(1)) and one count of aggravated sexual assault of a child (§ 289, subd. (a)).
At trial Dakota and her family testified about the events of July 2, 2005, and Maureen, Kristin and Celia each testified about her own experiences with Calhoun. Los Angeles County Sheriff’s Deputy Maria Czarnocki provided expert testimony about the emotional effects of molestation on children, including the fact that children often delay in reporting sexual abuse. Calhoun, his wife and two sons testified in Calhoun’s defense. Calhoun denied molesting or inappropriately touching any of the girls. In particular, he challenged aspects of Dakota’s story as false, including her assertions she had worn a two-piece bathing suit, he had peeled sunburned skin from her back, she had not been able to get out of the hot tub and he had had an erection.
The jury found guilty Calhoun on all five counts of lewd conduct with a child but was unable to reach a verdict on the remaining counts. The court sentenced Calhoun to an aggregate state prison term of 16 years: the upper term of eight years on count 1, as the base term, and two years (one-third of the middle term) on each of the remaining four counts.
The court declared a mistrial on the remaining counts, and they were subsequently dismissed.
DISCUSSION
1.Substantial Evidence Supports the Jury’s Verdicts
To assess a claim of insufficient evidence in a criminal case, “we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime or special circumstances beyond a reasonable doubt. [Citation.] The record must disclose substantial evidence to support the verdict-i.e., evidence that is reasonable, credible, and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. [Citation.] ‘Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]’ [Citation.] A reversal for insufficient evidence ‘is unwarranted unless it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support”’ the jury’s verdict.” (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
There was unquestionably substantial evidence at trial to support the jury’s verdicts. Notwithstanding purported inconsistencies in Dakota’s description of the molestation, there was nothing inherently improbable about her testimony, much of which was supported by her parents. Having heard the conflicting accounts of the events, the jury believed Dakota truthfully described Calhoun’s actions. Moreover, her version of events was amply supported by the testimony of Maureen, Kristin and Celia, who independently recounted similar patterns of molestation by Calhoun. The People took special care to ensure those witnesses were not influenced by each other’s account, and this effort strengthened the impact of their testimony.
Unless it is physically impossible or inherently improbable, the testimony of a single witness is sufficient to support a conviction. (People v. Young (2005) 34 Cal.4th 1149, 1181; see also Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1204 [“testimony of a witness offered in support of a judgment may not be rejected on appeal unless it is physically impossible or inherently improbable and such inherent improbability plainly appears”].)
Calhoun’s assertion the jury’s inability to decide the remaining counts demonstrates its ambivalence about the guilty verdicts is specious. As is apparent, although the jury was unable to agree whether Calhoun had used force, it clearly concluded he had engaged in lewd conduct with Dakota. Substantial evidence supported that conclusion.
2.The Trial Court Properly Admitted Propensity Evidence Under Evidence Code Section 1108
Notwithstanding the general rule prohibiting evidence of uncharged acts to prove propensity or disposition to commit the crimes charged (see Evid. Code, § 1101, subd. (a)), “Evidence Code section 1108 authorizes the admission of evidence of a prior sexual offense to establish the defendant’s propensity to commit a sexual offense, subject to exclusion under Evidence Code section 352.” (People v. Lewis (2009) 46 Cal.4th 1255, 1286; see also People v. Walker (2006) 139 Cal.App.4th 782, 796-797.) “By removing the restriction on character evidence in section 1101, section 1108 now ‘permit[s] the jury in sex offense... cases to consider evidence of prior offenses for any relevant purpose’ [citation], subject only to the prejudicial effect versus probative value weighing process required by section 352.” (People v. Britt (2002) 104 Cal.App.4th 500, 505.)
To be admissible under Evidence Code section 1108, “the probative value of the evidence of uncharged crimes ‘must be substantial and must not be largely outweighed by the probability that its admission would create a serious danger of undue prejudice, of confusing the issues, or of misleading the jury.’” (People v. Walker, supra, 139 Cal.App.4th 782, 796; see Evid. Code, § 352.) “The principal factor affecting the probative value of an uncharged act is its similarity to the charged offense. Other factors affecting the probative value include the extent to which the source of the evidence is independent of the charged offense, and the amount of time between the uncharged acts and the charged offense. The factors affecting the prejudicial effect of uncharged acts include whether the uncharged acts resulted in criminal convictions and whether the evidence of uncharged acts is stronger or more inflammatory than the evidence of the charged offenses.” (People v. Zepeda (2001) 87 Cal.App.4th 1183, 1211.) “The weighing process under section 352 depends upon the trial court’s consideration of the unique facts and issues of each case, rather than upon the mechanical application of automatic rules.” (People v. Jennings (2000) 81 Cal.App.4th 1301, 1314.)
Evidence Code section 1108, subdivision (a), provides, “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.”
Calhoun contends the probative value of Maureen, Kristin and Celia’s testimony was dramatically impaired by its remoteness in time. Moreover, precisely because of this remoteness, Calhoun argues he was severely prejudiced because he is unable to defend against allegations made about long ago events that went unreported. In essence, he contends, he was forced to defend himself against four charges of sexual misconduct, not just the claims by Dakota. Under Evidence Code section 352, he concludes, the evidence of prior uncharged acts should have been excluded. (See, e.g., People v. Harris (1998) 60 Cal.App.4th 727, 739 [“remoteness” or “staleness” of prior conduct is appropriate factor to consider in Evid. Code, § 352 analysis].)
Calhoun raised this argument in a pretrial motion and again at trial. Although we have not been provided with the transcript of the pretrial hearing, at trial the court expressly acknowledged the required Evidence Code section 352 analysis and concluded “the probative value of [Maureen, Kristin and Celia’s] testimony was in no way outweighed by any potential prejudice.” (See People v. Crittenden (1994) 9 Cal.4th 83, 135 [“When a defendant objects to evidence pursuant to Evidence Code section 352, the record must demonstrate affirmatively that the trial court did in fact weigh prejudice against probative value. [Citations.] Nonetheless ‘“the trial judge need not expressly weigh prejudice against probative value-or even expressly state that he has done so.”’”]; People v. Carter (2005) 36 Cal.4th 1114, 1170.)
The trial court plainly did not abuse its discretion in concluding the probative value of the evidence outweighed its prejudicial effect. (See People v. Wesson (2006) 138 Cal.App.4th 959, 969 [trial court’s decision to admit evidence of prior sex offenses reviewed for abuse of discretion]; see generally People v. Rodriguez (1999) 20 Cal.4th 1, 9-10 [“trial court’s exercise of discretion in admitting or excluding evidence is reviewable for abuse [citation] and will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice”].) As Zepeda explains, the most crucial factor in determining the probative weight of evidence of an uncharged act is its similarity to the currently charged act. (People v. Zepeda, supra, 87 Cal.App.4th at p. 1211; see also People v. Daniels (2009) 176 Cal.App.4th 304, 316 [“significant similarities” between 1990 and 2005 events established 1990 rape had “a great deal of probative value” on question of intent].) Here, there is a startling similarity between the accounts given by Maureen, Kristin and Celia and the testimony of Dakota, who knew nothing of their previous experiences. While it may be difficult to defend against decades-old evidence, and the age of the evidence may diminish its probative value, the circumstances under which this evidence was elicited, including the effort to prevent the contamination of each witness’s account, amplify those similarities. (See, e.g., People v. Lewis, surpa, 46 Cal.4th at p. 1287 [fact that source of uncharged acts evidence was entirely unrelated to charged offenses increased its probative value].) Nor were the prior episodes inherently more inflammatory than the charges involving Dakota, a factor that would have undercut both the similarity of the assaults and their ensuing probative value. (See, e.g., People v. Harris, supra, 60 Cal.App.4th at p. 791 [extremely inflammatory nature of evidence of prior sexual offenses weighed sharply in favor of exclusion].)
Similarities include the age and physical size of the four girls at the time Calhoun molested them, his exploitation of his position within the family as a trusted relative, the mode of the molestations (massaging and rubbing the girls’ vaginal areas and attempted digital penetration) and the willingness to engage in the conduct in the presence of other people.
On the other hand, the prejudice resulting from this testimony, while significant, was not undue. “‘The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. “[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendant’s case.... The ‘prejudice’ referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues.”’” (People v. Daniels, supra, 176 Cal.App.4th at p. 317.) The substantial impact of the evidence of uncharged sexual offenses in this case stemmed from the similarity of the assaults-not from their inflammatory nature.
Calhoun also argues admission of this evidence violated his right to due process but acknowledges the California Supreme Court has decided this issue adversely to him. (See People v. Daniels, supra, 176 Cal.App.4th at p. 315, fn. 9; People v. Falsetta (1999) 21 Cal.4th 903, 919.)
3.The Court’s Use of CALJIC No. 2.50.01 Did Not Violate Calhoun’s Constitutional Rights
Calhoun next contends the trial court’s use of CALJIC No. 2.50.01 violated his constitutional right to due process because, by allowing the jury to infer propensity under Evidence Code section 1108 by a preponderance of the evidence, it undermined the presumption of innocence and interfered with the requirement the jury determine his guilt on the charges before them beyond a reasonable doubt.
The court instructed the jury, “Evidence has been introduced for the purpose of showing that the defendant engaged in a sexual offense on one or more occasions other than those charged in this case. [¶] A ‘sexual offense’ means a crime under the laws of a state or of the United States that involves any of the following: [¶] Any conduct made criminal by Penal Code sections 288, subdivision (a), and 269, subdivision (a). The elements of these crimes are set forth elsewhere in these instructions. [¶] If you find that the defendant committed a prior sexual offense or prior sexual offenses, you may, but are not required to, infer that the defendant had a disposition to commit sexual offenses. If you find that the defendant had this disposition, you may, but are not required to, infer that he was likely to commit and did commit the crime or crimes of which he is accused. [¶] However, if you find by a preponderance of the evidence that the defendant committed a prior sexual offense or prior sexual offenses, that is not sufficient by itself to prove beyond a reasonable doubt that he committed the charged crimes. If you determine an inference properly can be drawn from this evidence, this inference is simply one item for you to consider, along with all other evidence, in determining whether the defendant has been proved guilty beyond a reasonable doubt of the charged crime. [¶] Unless you are otherwise instructed, you must not consider this evidence for any other purpose.” (CALJIC No. 2.50.01, as modified.)
The People contend Calhoun has forfeited this argument because he failed to object to the use of the instruction in the trial court. Generally, “‘“‘[a] party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.’”’” (People v. Campos (2007) 156 Cal.App.4th 1228, 1236 [challenge to CALCRIM No. 600 deemed forfeited]; see People v. Gonzalez (2002) 99 Cal.App.4th 475, 483 [failure to object or to request clarifying instructions forfeits the issue on appeal].) However, when an instruction allegedly affects the substantial rights of the defendant, it is reviewable even in the absence of an objection. (§ 1259; see, e.g., People v. Hudson (2006) 38 Cal.4th 1002, 1011-1012 [failure to object to instruction does not forfeit issue on appeal when alleged error concerns elements of offense];People v. Smithey (1999) 20 Cal.4th 936, 976, fn. 7 [defendant did not forfeit right to object to instruction alleged to be incorrect statement of law and given in violation of due process]; People v. Van Winkle (1999) 75 Cal.App.4th 133, 139-140 [defendant’s challenge to constitutionality of jury instructions not forfeited for failure to object because “the constitutional right to have all elements of a criminal offense proved beyond a reasonable doubt is substantial”].)
Even if Calhoun’s challenge to CALJIC No. 2.50.01 has not been forfeited, his precise argument has been repeatedly rejected by the Supreme Court and the Courts of Appeal. (See People v. Reliford (2003) 29 Cal.4th 1007; People v. Lewis, supra, 46 Cal.4th at p. 1296 [affirming rationale of Reliford]; see also People v. Reyes (2008) 160 Cal.App.4th 246, 248-254 [rejecting] due process challenge to CALCRIM No. 852, counterpart to CALJIC No. 2.50.02, 2.50.01 corollary for domestic violence cases].) We decline Calhoun’s invitation to revisit this issue.
4. The Trial Court Did Not Err in Sentencing Calhoun
i. The trial court’s imposition of the upper term sentence on count 1 was constitutionally authorized
Relying on Cunningham, supra, 549 U.S. 270, Calhoun contends the trial court violated his Sixth Amendment right to a jury trial by imposing an upper term sentence of eight years based on facts not found by the jury.
In Cunningham the United States Supreme Court held California’s determinate sentencing law violates a defendant’s federal constitutional right to a jury trial under the Sixth and Fourteenth Amendments to the United States Constitution to the extent it authorizes the trial judge to find facts (other than a prior conviction) by a preponderance of the evidence that subject a defendant to the possibility of an upper term sentence. Following Cunningham the Legislature amended section 1170, subdivision (b), effective March 30, 2007 as urgency legislation, to eliminate the statutory presumption for the middle term and, instead, to grant the trial court full discretion to impose the upper, middle or lower term. (§ 1170, subd. (b) [“[w]hen a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court”]; see People v. Sandoval (2007) 41 Cal.4th 825, 845.)
Noting that Senate Bill No. 40 (2007-2008 Reg. Sess.), which amended section 1170, subdivision (b), contains no language regarding retroactivity, the California Supreme Court in People v. Sandoval, supra, 41 Cal.4th 825 avoided deciding whether the amendments to the determinative sentencing law applied to all sentencing proceedings conducted after the effective date of those amendments (see id. at p. 845) by “fashion[ing] a constitutional procedure for resentencing in cases in which Cunningham requires a reversal of an upper term sentence.” (Id. at p. 846.) The Sandoval Court held a defendant, not subject to the amended sentencing procedures, is nonetheless properly sentenced or resentenced under a judicially reformed sentencing scheme in which the trial court has full discretion to impose the upper, middle or lower term unconstrained by the requirement that the upper term may not be imposed unless an aggravating circumstances is established. (See id. at pp. 845-852; People v. French (2008) 43 Cal.4th 36, 45.) “Under [the Supreme Court’s] holding in Sandoval, if a defendant is successful in establishing Cunningham error on appeal, the trial court is not precluded from imposing the upper term upon remand for resentencing. The defendant is entitled only to be resentenced under a constitutional scheme and is afforded the opportunity to attempt to persuade the trial court to exercise its discretion to impose a lesser sentence.” (French, at pp. 45-46.)
In short, Calhoun’s sentencing in February 2009, based on his 2008 convictions for offenses committed in July 2005, was authorized by-and Calhoun’s constitutional rights were fully protected by-either amended section 1170, subdivision (b), or the reformed sentencing scheme described in Sandoval. Under either version of the governing sentencing law, it was constitutionally permissible for the trial court to impose the upper term for his offense without any additional jury findings. (See, e.g., People v. Wilson (2008) 164 Cal.App.4th 988, 992.)
Calhoun originally contended imposition of consecutive sentences on counts 2 to 5 also violated his Sixth Amendment right to a jury trial but now concedes this issue has been resolved against him by the decision of the United States Supreme Court in Oregon v. Ice (2009) 555 U.S. ___ [129 S.Ct. 711, 172 L.Ed.2d 517]. (Accord, People v. Black (2007) 41 Cal.4th 799, 820-823.)
ii. The trial court did not abuse its discretion in denying probation to Calhoun
Calhoun contends the trial court abused its discretion in refusing to sentence him to probation or, at most, the middle term of six years on count 1.
Our review of a trial court’s decision to grant or deny probation is deferential. “The sentencing court has broad discretion to determine whether an eligible defendant is suitable for probation and, if so, under what conditions.” (People v. Carbajal (1995) 10 Cal.4th 1114, 1120; see Cal. Rules of Court, rule 4.414.) To establish an abuse of discretion, the defendant must show that, under all the circumstances, the denial of probation was arbitrary, capricious or exceeded the bounds of reason. (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 834, 835; see also People v. Carmony (2004) 33 Cal.4th 367, 377 [“[A] ‘“decision will not be reversed merely because reasonable people might disagree. ‘An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.’”’ [Citation.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it”].) “Probation is generally reserved for convicted criminals whose conditional release into society poses minimal risk to public safety and promotes rehabilitation.” (Carbajal, at p. 1120.) “[A] grant of probation is not a matter of right but an act of clemency.” (People v. Covington (2000) 82 Cal.App.4th 1263, 1267.)
The trial court concluded Calhoun was not eligible for probation, and the People urge this position on appeal. We see no reason why Calhoun was not legally eligible for probation, but we construe the court’s statement it could only grant probation in limited circumstances not applicable in this case as reflecting its unwillingness to make the requisite findings to support an order of probation. In sentencing Calhoun to the upper term of eight years on count 1, the court articulated factors in aggravation that fully justified its denial of probation.
Section 1203.066, subdivision (d)(1)(B), allows the court to order probation if it finds “rehabilitation of the defendant is feasible and that the defendant is amenable to undergoing treatment, and the defendant is placed in a recognized treatment program designed to deal with child molestation immediately after the grant of probation or the suspension of execution or imposition of sentence.” We have reviewed section 1203.066, subdivision (a), which lists specific circumstances under which probation may not be granted and conclude they are inapplicable to this case.
Similarly, in light of the factors identified by the court, we cannot say imposition of the upper term, rather than the lower or middle term on count 1, constituted an abuse of discretion. “‘Sentencing courts have wide discretion in weighing aggravating and mitigating factors [citations], and may balance them against each other in “qualitative as well as quantitative terms” [citation].... We must affirm unless there is a clear showing the sentence choice was arbitrary or irrational.’” (People v. Avalos (1996) 47 Cal.App.4th 1569, 1582; accord People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978 [“‘The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] 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.’”].)
As the court explained in choosing the upper term, “[Calhoun] is a sexual predator who cultivates familia[l] relationships to accomplish his crimes. He’s been getting away with the conduct for decades. And, in my opinion, because of this, he became more emboldened in this action. So that in these crimes, he didn’t take Dakota for a walk in the woods where no one else was around. Instead, he digitally penetrated her in a Jacuzzi with her parents in the backyard. This recidivist conduct that I find escalating in terms of where and how he commits it says to me that he poses a grave, serious danger to society.”
iii. The trial court did not abuse its discretion in ordering consecutive, rather than concurrent, sentences
For the same reasons, the trial court did not abuse its discretion in sentencing Calhoun to consecutive terms for all five counts of lewd conduct on a child. California Rules of Court, rule 4.425 sets forth specific criteria affecting the decision to impose consecutive rather than concurrent sentences. Although Calhoun fails to articulate in what manner the court may have abused its discretion under this rule, a court is barred from relying on the same aggravating factor both to impose the upper term and to justify imposition of consecutive sentences. (Cal. Rules of Court, rule 4.425(b)(1).) Here, in identifying aggravating factors, the court did not separately identify which factors applied to which sentencing determination, nor did Calhoun’s counsel request such clarification. (See People v. Scott (1994) 9 Cal.4th 331, 356 [“complaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal”]; cf. People v. Velasquez (2007) 152 Cal.App.4th 1503, 1512 [lack of objection to trial court’s failure to state reasons for imposing upper term forfeits issue for appeal].) The court, however, identified at least two factors that would support the sentence imposed (that is, imposition of the upper term and consecutive terms)-Calhoun’s exploitation of family relationships and his recidivism over the course of 30 years. (See Scott, at p. 350, fn. 12 [“[T]he court cannot rely on the same fact to impose both the upper term and a consecutive term. [Citations.] However, one relevant and sustainable fact may explain a series of consecutive sentences.”].) Nothing more is required. (See People v. Osband (1996) 13 Cal.4th 622, 728-729 [“Only a single aggravating factor is required to impose the upper term [citation], and the same is true of the choice to impose a consecutive sentence [citation]. In this case, the court could have selected disparate facts from among those it recited to justify the imposition of both a consecutive sentence and the upper term, and on this record we discern no reasonable probability that it would not have done so. Resentencing is not required.”].)
It is not at all uncommon for separate counts to be charged, and consecutive prison terms imposed, for separate acts committed during a single episode of sexual assault. (See, e.g., People v. Jimenez (2002) 99 Cal.App.4th 450, 456 [upholding conviction of three separate violations of same child molestation statute based on single incident during which defendant fondled three separate portions of victim’s body; defendant sentenced to consecutive terms in part]; People v. Harrison (1989)48 Cal.3d 321, 324-325, 336-338 [consecutive sentences for separate acts of penetration during sexual assault].)
California Rules of Court, rule 4.425 provides, “Criteria affecting the decision to impose consecutive rather than concurrent sentences include: [¶] (a) Criteria relating to crimes [¶] Facts relating to the crimes, including whether or not: [¶] (1) The crimes and their objectives were predominantly independent of each other; [¶] (2) The crimes involved separate acts of violence or threats of violence; or [¶] (3) The crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior. [¶] (b) Other criteria and limitations [¶] Any circumstances in aggravation or mitigation may be considered in deciding whether to impose consecutive rather than concurrent sentences, except: [¶] (1) A fact used to impose the upper term; [¶] (2) A fact used to otherwise enhance the defendant’s prison sentence; and [¶] (3) A fact that is an element of the crime may not be used to impose consecutive sentences. ”
iv. The trial court was not required to stay the sentences imposed on counts 2 through 5
Section 654 prohibits punishment for two offenses arising from the same act or from a series of acts constituting an indivisible course of conduct. (People v. Lewis (2008) 43 Cal.4th 415, 419; People v. Latimer (1993) 5 Cal.4th 1203, 1216.) “Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.” (Neal v. State of California (1960) 55 Cal.2d 11, 19; see Latimer, at p. 1208.) On the other hand, if the defendant entertained multiple criminal objectives that were independent and not incidental to each other, he or she “may be punished for each statutory violation committed in pursuit of each objective” even though the violations were otherwise part of an indivisible course of conduct. (People v. Harrison (1989) 48 Cal.3d 321, 335.) “‘The principal inquiry in each case is whether the defendant’s criminal intent and objective were single or multiple.’ [Citation.] ‘A defendant’s criminal objective is “determined from all the circumstances.”’” (In re Jose P. (2003) 106 Cal.App.4th 458, 469; accord, People v. Sok (2010) 181 Cal.App.4th 88, 99.)
Section 654, subdivision (a), 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. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other.”
Whether section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination. (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312; People v. Herrera (1999) 70 Cal.App.4th 1456, 1466.) Its findings will not be reversed on appeal if there is any substantial evidence to support them. (Hutchins, at p. 1312; Herrera, at p. 1466; People v. Nichols (1994) 29 Cal.App.4th 1651, 1657.) “We review the trial court’s determination in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence.” (People v. Jones (2002) 103 Cal.App.4th 1139, 1143; see People v. Cleveland (2001) 87 Cal.App.4th 263, 271 [trial court’s finding of “‘separate intents’” reviewed for sufficient evidence in light most favorable to the judgment].)
Other than a broad assertion the sentences on counts 2 through 5 should have been stayed under section 654, Calhoun offers no analysis or authority to support his position. Nor, in light of the authorities discussed above, do we conclude the court erred in refusing to stay sentencing under section 654 on four of the five acts of lewd conduct for which Calhoun was convicted. There was substantial evidence in Dakota’s testimony of separate criminal acts by Calhoun over the course of two hours, which fully justifies imposition of separate punishment for each crime. (See People v. Perez (1979) 23 Cal.3d 545, 552 [§ 654 does not preclude multiple punishments for separate sex offenses against same victim even though all offenses were motivated by same intent and objective-to obtain sexual gratification]; People v. Harrison, supra, 48 Cal.3d at pp. 336-338.)
v. Calhoun’s sentence was not unconstitutionally cruel or unusual
Finally, Calhoun contends his 16-year sentence constituted cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution and cruel or unusual punishment in violation of the California Constitution. Calhoun has forfeited these arguments by failing to raise them in the trial court. (See, e.g., People v. Norman (2003) 109 Cal.App.4th 221, 229 [cruel and unusual punishment arguments must be raised in trial court because they require fact-specific determinations about the offense and the offender]; accord, People v. Kelley (1997) 52 Cal.App.4th 568, 583.) In addition, they fail on their merits.
A sentence violates the California Constitution if it is “so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.” (In re Lynch (1972) 8 Cal.3d 410, 424.) We evaluate a cruel and unusual punishment claim under the three factors set forth in Lynch: (1) “the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society” (id. at p. 425); (2) a “compar[ison of] the challenged penalty with the punishments prescribed in the same jurisdiction for different offenses which, by the same test, must be deemed more serious” (id. at p. 426); and (3) “a comparison of the challenged penalty with the punishments prescribed for the same offense in other jurisdictions having an identical or similar constitutional provision” (id. at p. 427). (See also People v. Martinez (1999) 71 Cal.App.4th 1502, 1510.) “Because it is the Legislature which determines the appropriate penalty for criminal offenses, defendant must overcome a ‘considerable burden’ in convincing us his sentence was disproportionate to his level of culpability.” (People v. Weddle (1991) 1 Cal.App.4th 1190, 1196-1197.) Calhoun bears the burden of establishing the punishment is unconstitutional. (People v. King (1993) 16 Cal.App.4th 567, 572.)
Calhoun concedes the federal constitution offers no greater protection than the California constitution; and, like him, we focus on the three-prong analysis established in Lynch.
As to the first Lynch factor, when evaluating the offense, we look at “the totality of the circumstances surrounding the commission of the offense, including such factors as its motive, the way it was committed, the extent of the defendant’s involvement, and the consequences of his acts.” (People v. Dillon (1983) 34 Cal.3d 441, 479.) When evaluating the particular offender, we focus on “individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind.” (Ibid.)
As the trial court pointed out, Calhoun’s sentence was premised on a pattern of sexual exploitation of vulnerable young girls, all entrusted to Calhoun’s care in his role as an uncle or grandfather. Abuse of girls entrusted to his care apparently began more than 30 years earlier, and Calhoun’s abuse of Dakota unquestionably demonstrates he has not altered his behavior and remains a threat to children. The impact of this form of exploitation of the most vulnerable of victims has already been determined by the Legislature to warrant the significant penalties authorized in section 288.
Perhaps aware of the lack of compelling examples, Calhoun has offered no analysis of the second and third Lynch prongs requiring comparison of sentences from California and other jurisdictions. Under these circumstances, he has failed to meet his burden of establishing that the punishment was cruel and unusual.
DISPOSITION
The judgment is affirmed.
We concur: JACKSON, J., SEGAL, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
The jury was also instructed with CALJIC No. 2.50.1, which provides: “Within the meaning of the preceding instructions, the prosecution has the burden of proving by a preponderance of the evidence that a defendant committed a sexual offense other than those for which he is on trial. [¶] You must not consider this evidence for any purpose unless you find by a preponderance of the evidence that the defendant committed the other sexual offenses. [¶] If you find other crimes were committed by a preponderance of the evidence, you are nevertheless cautioned and reminded that before a defendant can be found guilty of any crime charged in this trial, the evidence as a whole must persuade you beyond a reasonable doubt that the defendant is guilty of that crime.”