Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 03F07643
HULL , J.Defendant was convicted by a jury of forcible rape (Pen. Code, § 261, subd. (a)(2); further undesignated section references are to the Penal Code), forcible sexual penetration with a foreign object (§ 289, subd. (a)(1)), assault with a deadly weapon (§ 245, subd. (a)(1)), battery causing serious bodily injury (§ 243, subd. (d)), and torture (§ 206), all arising from a single incident in which defendant beat and sexually assaulted his one-time girlfriend over a period of eight hours. He was acquitted of aggravated kidnapping for the purpose of committing a sex offense (§ 209, subd. (b)(1)), but convicted of the lesser included offense of simple kidnapping (§ 207). The jury also found various enhancements and one-strike allegations true. Defendant thereafter admitted a prior serious felony conviction within the meaning of the three strikes law (§§ 667 and 1170.12) and another conviction for which he served a prison term (§ 667.5).
Sentenced to an aggregate, unstayed term in state prison of 83 years to life, defendant appeals contending he was denied his constitutional right to present a defense by virtue of several evidentiary rulings by the trial court and he was denied the right to a jury trial on factors used to determine the aggregate sentence imposed. We find no error and affirm the judgment.
FACTS AND PROCEEDINGS
B.W. had been homeless since 1998. She spent her days collecting cans and plastics for recycling. She had at times engaged in prostitution, used drugs, and believed herself to be an alcoholic.
B.W. and defendant carried on a romantic relationship and lived together on and off for a period of time. B.W. had defendant’s first name tattooed on her neck. However, their relationship included violence every other day, and B.W. eventually broke the relationship off because she could not take the abuse any longer.
On one occasion before they had broken up, defendant and B.W. arrived at the home of B.W.’s sister and B.W. had blood running down her head. Defendant explained that he had “accidentally” hit B.W. on the head twice. B.W. had two gashes on her head and her sister picked wood slivers out of them. According to B.W., defendant had hit her with a bedpost.
In late August 2003, after B.W. had broken up with defendant, she was collecting cans when she heard the screech of tires behind her. She turned around and saw defendant, who came up to her and punched her in the face. The next thing B.W. knew, she was in the back of defendant’s van and it was moving. She had with her a plastic garbage bag of cans and a duffel bag containing some clothes and personal effects.
Around this time, defendant had been working for Labor Ready, a temporary work agency, and was assigned to work at Cal Expo cleaning out stables. Defendant drove B.W. over to the Labor Ready office. On the way, he hit her with his fist.
After they arrived at Labor Ready, defendant began hitting B.W. with the flat side of a knife on her legs, arms, face, and head. When B.W. tried to protect herself, she received a cut on her hand. Defendant got into the back of the van with a stick he had broken off a nearby tree and began hitting B.W. with it. He eventually said the stick was not good enough and used an iron bar on her.
B.W. was in and out of consciousness during this period. She was bleeding from a cut on her face and hand and was screaming. Defendant told her the more she screamed the harder he would hit her. She put a blanket in her mouth to stifle the screams.
Defendant took a break and then resumed beating B.W. At some point, defendant had removed B.W.’s pants and had sex with her against her will. He also inserted the iron bar into her vagina and said he would ruin her so no other man would want her.
Eventually, another man came to the van and asked defendant if he was ready for work. Defendant put some pants on B.W. and let the man in the van. Defendant hit B.W. again and the man told him to stop. That man left and another man got in the van with them. They drove from Labor Ready to Cal Expo.
After they arrived at Cal Expo, defendant left the van to go to work. Before departing, defendant told B.W. he was going to take her under a bridge and finish what he started. B.W. later walked to a security shack on the premises and asked for help.
B.W. was taken to U.C. Davis Medical Center and received treatment. She had multiple bruises and facial lacerations. She had a puncture wound on her left hand, injuries to her feet, bruising on her back side, cuts on her left knee, bruising on her left leg, bruising around her eyes, a laceration to her lower lip and a laceration on her left cheek. Some of these injuries were consistent with blunt force trauma. There was also some injury to her vagina.
B.W. did not initially report that defendant had raped her. She later explained that she did not report it because she was afraid defendant would hurt her sister. B.W. eventually reported that defendant had raped her three times in the back of his van and beat her over an eight-hour period.
The police searched defendant’s van and discovered a black plastic bag containing cans and a black, nylon duffel bag containing women’s clothes, deodorant, a toothbrush and feminine hygiene products. B.W. identified these as belonging to her. They also found an iron bar, which B.W. identified as the one used on her, and a bedspread, pillow, a pair of women’s jeans, and a t-shirt with blood on them.
Defendant was interviewed by police and said a bloody t-shirt found in the van was from a fight he had gotten into. However, at trial, defendant explained that B.W. had come to his van the morning she was taken to U.C. Davis Medical Center and was already bloody and he wiped her off with the t-shirt. Defendant elaborated that the night before he had refused to give B.W. money for drugs so she departed to engage in prostitution to obtain drugs. He did not see her again until the next morning.
In the interview, defendant also told police he had not had sex with B.W. for a month or more. However, the DNA of a semen sample taken from B.W.’s vagina at U.C. Davis Medical Center matched defendant’s DNA.
Evidence was presented at trial regarding earlier incidents of sexual assault by defendant. In 1977, 13-year-old Leslie L. met defendant at the home of a mutual friend. They were drinking alcoholic beverages with some others. Later they all went to defendant’s home where Leslie passed out. She awoke to find everyone else gone and defendant pulling off her pants. She kicked and screamed, but defendant succeeded in raping her.
In 1992, defendant came to visit Louise C. and, after talking for an hour, starting kissing her neck. She told him to stop and backed away. He grabbed her arm and pulled her into a bedroom. She asked him to stop and leave, but defendant said he would not leave until he got what he wanted. When Louise started crying, defendant said, “Shut your fuckin’ mouth or I’m gonna hurt you.” Defendant pushed Louise down and pulled off her pants and underwear. He put his finger in her vagina and then tried to insert his penis but was unable to do so because he could not obtain a full erection. Defendant eventually departed.
Defendant dated G.R. for about a year around 1993. In one incident, while they were living in a trailer, defendant asked her to leave and she went to get a cart for her belongings. When G.R. came back, defendant threw her clothes at her. He also hit her in the upper part of her body and hit her with a stick across the shoulders. In another incident, while they were living in an apartment, defendant came home and woke G.R. up. He was angry about there not being anything to eat and dragged her into the kitchen. He hit her in the chest and the upper part of her body nine or 10 times. She received bruises on her face and chest and a cut on her lip that required seven stitches.
In July 2003, Cheryl C. stayed with defendant for five days in his van. However, she became uncomfortable with the situation and departed one morning. She was standing by a brick wall outside a market when defendant arrived, came up to her, and “popped” her in the face, causing the back of her head to strike the wall. Defendant accused Cheryl of stealing his television from the van.
Defendant was charged with six substantive offenses and two prior convictions.
In count one, defendant was charged with forcible rape (§ 261, subd. (a)(2)). He was also charged as a habitual sex offender, for purposes of one-strike sentencing, with simple kidnapping (§ 667.61, subd. (d)(2)), infliction of aggravated mayhem or torture (§ 667.61, subd. (d)(3)), aggravated kidnapping (§ 667.61, subds. (e)(1)), infliction of great bodily injury (§ 667.61, subd. (e)(3)), and personal use of a deadly weapon (§ 667.61, subd. (e)(4)).
In count two, defendant was charged with forcible sexual penetration with a foreign object (§ 289, subd. (a)(1)). He was also charged as a habitual sex offender with simple kidnapping (§ 667.61, subd. (d)(2)), infliction of aggravated mayhem or torture (§ 667.61, subd. (d)(3)), aggravated kidnapping (§ 667.61, subds. (e)(1)), infliction of great bodily injury (§ 667.61, subd. (e)(3)), and personal use of a deadly weapon (§ 667.61, subd. (e)(4)).
In count three, defendant was charged with assault with a deadly weapon (§ 245, subd. (a)(1)) and an enhancement for infliction of great bodily injury under circumstances involving domestic violence (§ 12022.7, subd. (e)).
In count four, he was charged with battery causing serious bodily injury (§ 243, subd. (d)) and an enhancement for personal use of a deadly weapon (§ 12022, subd. (b)(1)).
In count five, defendant was charged with aggravated kidnapping for the purpose of committing a sexual offense (§ 209, subd. (b)(1)) and an enhancement for personal use of a deadly weapon (§ 12022, subd. (b)(1)).
In count six, defendant was charged with torture (§ 206), with enhancements for infliction of great bodily injury under circumstances involving domestic violence (§ 12022.7, subd. (e)) and personal use of a deadly weapon (§ 12022, subd. (b)(1)).
Defendant was further charged with a prior serious felony conviction (§ 667, subd. (a)) within the meaning of the three strikes law (§§ 667 and 1170.12) for a 1994 assault with a firearm (§ 245, subd. (a)(2)) and a 1997 conviction for sale or transportation of marijuana (Health & Saf. Code, § 11360, subd. (a)) for which he served a term in prison (Pen. Code, § 667.5).
Following jury trial, defendant was convicted on counts one through four and count six. On count five, defendant was convicted of the lesser included offense of simple kidnapping (§ 207). On counts one and two, the jury found all the one-strike allegations true except infliction of great bodily injury (§ 667.61, subd. (e)(3)). The charged enhancements were all found true except that alleged in count five. Defendant thereafter admitted the two priors.
Defendant was sentenced on count two to the middle term of six years, doubled to 12 under the three strikes law (§§ 667 and 1170.12). On count three, he was sentenced to the middle term of three years, doubled to six, plus a four-year enhancement. On count four, defendant was sentenced to the middle term of three years, doubled to six, plus a one-year enhancement. On count five, he was sentenced to five years, doubled to 10. However, the court ordered the terms on counts three, four and five stayed pursuant to section 654.
On count one, defendant was sentenced to an indeterminate term of 25 years to life under the habitual sexual offender law (§ 667.61), doubled to 50 years to life under the three strikes law. That term was ordered to run consecutive to the term imposed on count two. On count six, defendant received a consecutive, indeterminate term of 14 years to life plus an enhancement of one year.
Finally, defendant received a total of six years for his prior convictions for an aggregate, unstayed sentence of 83 years to life.
DISCUSSION
I
EXCLUSION OF EVIDENCE
Defendant contends the trial court erred in excluding evidence offered to impeach B.W. He argues this matter was primarily a credibility contest between him and B.W. and the exclusion of this evidence effectively denied him the right to present a defense. Defendant further contends the trial court erred in permitting the prosecution to present excerpts of his interview with police but denying his request to present the entire interview in order to put those excerpts in context. As we shall explain, there was no error.
“The Sixth Amendment to the [United States] Constitution guarantees the right of an accused in a criminal prosecution ‘to be confronted with the witnesses against him.’ This right is secured for defendants in state as well as federal criminal proceedings . . . .” (Davis v. Alaska (1974) 415 U.S. 308, 315 [39 L.Ed.2d 347, 353].)
“Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested.” (Davis v. Alaska, supra, 415 U.S. at pp. 315-316 [39 L.Ed.2d at p. 353].) In order to protect the rights of a defendant in a criminal proceeding, cross-examination to test the credibility of a prosecuting witness should be given wide latitude. (Curry v. Superior Court (1970) 2 Cal.3d 707, 715.) In determining credibility of a witness, the jury may consider “any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing, including but not limited to any of the following: [¶] . . . [¶] (e) His character for honesty or veracity or their opposites. [¶] (f) The existence or nonexistence of a bias, interest, or other motive. . . .” (Evid. Code, § 780.)
Notwithstanding the wide latitude afforded criminal defendants on cross-examination, trial courts also retain wide latitude under the Confrontation Clause “to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’[s] safety, or interrogation that is repetitive or only marginally relevant.” (Delaware v. Van Arsdall (1986) 475 U.S. 673, 679 [89 L.Ed.2d 674, 683].) Trial courts may also restrict cross-examination on the basis of Evidence Code section 352, which authorizes the exclusion of evidence “if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code, § 352.) The application of Evidence Code section 352 is a matter of trial court discretion. The court’s exercise of such discretion to limit cross-examination contravenes neither the Sixth Amendment nor the California Constitution unless the defendant can show the prohibited cross-examination might have resulted in “a significantly different impression of [the witness’s] credibility.” (Delaware, supra, at p. 680 [89 L.Ed.2d at p. 684]; see also People v. Carpenter (1999) 21 Cal.4th 1016, 1050-1051; People v. Frye (1998) 18 Cal.4th 894, 946.)
Regarding impeachment of B.W., defendant acknowledges that he was allowed to present some impeaching evidence to the jury. However, he argues the court excluded evidence that “would have allowed the jury to see that [B.W.] had on six prior occasions accused men of domestic violence, had assaulted someone with a gun and used a stolen truck to commit a hit and run.” As we shall explain, defendant exaggerates the breadth of evidence excluded by the trial court.
Defendant filed a motion in limine seeking permission to present evidence to impeach B.W. He sought the introduction of evidence that B.W. had misdemeanor convictions for prostitution, that B.W. committed a burglary against Thelan T. in which she stole guns, one of which she used to threaten defendant, that she stole money and a pickup truck from Thelan T., and that she wrecked the truck and fled the scene.
Defendant also sought to present evidence of B.W.’s drug addiction, that her eight children had been taken from her by the court because of her drug abuse, that B.W. had previously submitted police reports against various individuals, including Thelan T., and that the prosecution was paying for B.W.’s lodging during trial.
The trial court permitted impeachment of B.W. with three prior misdemeanor convictions for prostitution, but not her record of prior arrests for which there were no convictions. The court excluded evidence that B.W.’s children had been taken from her by the court due to drug abuse, concluding the probative value of that evidence was outweighed by its prejudicial effect and the potential for undue consumption of time. The court permitted the defense to question B.W. about the theft of Thelan T.’s gun. The court also permitted the defense to impeach B.W. with the fact she took Thelan T.’s truck without permission, was involved in a collision, and abandoned the truck. However, the court excluded evidence that B.W. conspired with another woman to steal money from Thelan T. because it was based on speculation. The court also excluded evidence that B.W. had filed a police report against Thelan T., because there was no evidence the report was false.
The court permitted defendant to impeach B.W. with evidence that she received lodging and clothes at the district attorney’s expense and that the district attorney wrote a letter allowing B.W. to delay turning herself in on a misdemeanor warrant. The court excluded testimony from one witness about B.W.’s mental state, that she is always on drugs and alcohol, and that she engages in prostitution. The court permitted another witness to testify that B.W. is a liar, but would not permit that witness to testify about B.W.’s drug addiction and alcohol use or her mental state. The court also excluded evidence that B.W. abused her pain medication after the offenses in this matter.
As the foregoing demonstrates, the trial court permitted the defense to impeach B.W. with her prior prostitution convictions, her theft of a gun and truck from Thelan T., her hit-and-run with the truck, her receipt of lodging and clothes from the prosecution, and her reputation as a liar. In her testimony, B.W. acknowledged one prostitution conviction, the theft of the gun and truck from Thelan T., and hitting a parked car and telephone pole with the truck. She also testified about staying in a hotel during trial at the prosecution’s expense, receiving the standard witness fee, and having a warrant cleared by the prosecution. She also acknowledged being an alcoholic and using drugs around the time of the offenses.
Defendant testified about B.W.’s drug use. He also testified that, the day before the assault, he refused to give B.W. money for drugs so she departed for the “stroll” on Del Paso Boulevard to sell her body. Thelan T. testified that B.W. did not have a good reputation for honesty and will lie if she needs to do so. He also testified that B.W.’s sister has referred to B.W. as a “pathological liar.” Another witness, with whom B.W. had lived for a while, testified that B.W. will lie and steal from anyone to obtain alcohol and drugs.
Despite defendant’s assertion to the contrary, the trial court did not preclude him from presenting evidence that B.W. “used a stolen truck to commit a hit and run.” The court did not permit defendant to show B.W. had assaulted “someone” with a gun because the “someone” he referred to was defendant himself. Since there was no claim by defendant that in this matter he acted in self-defense in committing the acts alleged, the court excluded the proffered evidence. Defendant offers no argument as to why this ruling was improper.
As for the remaining evidence defendant claims was improperly excluded, defendant argues on appeal that evidence that B.W. made prior complaints of domestic violence “under circumstances not leading to arrest and prosecution could have been admissible to show her pattern of conduct with the men with whom she had been involved.” Defendant argues here that “[w]hen a complaining witness has a reputation for dishonesty and provides contradictory descriptions of the rape charged against a defendant, it is reversible error not to admit evidence that the witness had previously falsely accused others of rape.”
There are a number of problems with defendant’s argument. First, defendant argues B.W. had claimed she was the victim of domestic violence on six prior occasions. We note that one of the six was the complaint that led to the charges in this case and so this complaint was not one made “on a prior occasion.”
As for the other five, defendant’s argument on appeal is different from the one he presented to the trial court. In his motion in limine at trial, defendant asserted that on all but one of the prior occasions, the target of B.W.’s accusation was arrested on her complaint. He did not argue that these were false accusations, but instead that the evidence was relevant to show that, in B.W.’s experience, “when she accused [a man] of assaulting her, that man is normally arrested” and that “in the past she had no reservations about reporting her assailant” and “is well acquainted with the process of accusation, medical treatment and arrest similar to the present case.”
We have no difficulty seeing why the trial court would not have been impressed with this argument. The issue for the jury was whether B.W. was telling the truth when she accused defendant of assaulting her. The fact that she had accused others in the past of assault which in turn led to their arrest would have no bearing on this issue unless it was also established that those prior accusations had been false. (See People v. Adams (1988) 198 Cal.App.3d 10, 18; People v. Burrell-Hart (1987) 192 Cal.App.3d 593, 599-600.) In fact, evidence that the targets of her accusations had been at least arrested would tend to have the opposite effect.
Nevertheless, it does appear defendant raised the argument he now presents to us as an alternate basis for introduction of the evidence, at least as to one of the five individuals. During argument, the court asked if defendant was asserting that the evidence is relevant to prove B.W. either makes up or exaggerates her claims of harm. Defendant responded that this was the case only with respect to her claim against Thelan T. Defendant asserted in his moving papers that B.W. “falsely accused [Thelan T.] of trying to cut her throat, during an act of domestic violence.”
The trial court found defendant’s showing in this regard insufficient, explaining: “As a general principle, certainly a false report made by a victim may certainly bear on the issue of credibility and bear fairly strongly on that point. However, in considering the facts presented in this case, it doesn’t appear that there’s evidence that the accusation was false. The fact that there were no charges filed is often the case, and as we’ve seen in several of the other incidents in this particular case, does not render the underlying report a false report. There are a number of reasons why a case does not see the light of day in court.” The court later revisited the issue but stood by its decision. The court explained this was not a case of a “demonstrably false report” but “simply an incidence in which the victim was, at least from her perspective, a victim of a domestic abuse . . . .” The trial court’s ruling was correct.
As for the other four accusations of assault, we have been cited to nothing in the record to suggest the trial court ever ruled on whether defendant could present evidence on those matters. Where a defendant does not secure a ruling on a point, it is not preserved for appeal. (People v. Rowland (1992) 4 Cal.4th 238, 259.) The closest thing we have found in the record is a ruling during cross-examination of B.W. in which the court sustained an objection to the question: “Okay. Well, normally when you’ve turned in other people for domestic relations violence, they’ve always been arrested immediately, haven’t they?” As explained above, the fact the targets of B.W.’s accusations were arrested would not support a claim that the accusations were false. At any rate, defendant cites nothing in the record to support an assertion that B.W.’s reports of domestic violence, if they had in fact been made, were false.
Defendant has failed to show the trial court violated his rights under the confrontation clause by restricting his impeachment of B.W.
Defendant also contends the court improperly barred him from introducing the entire tape of his interview with police in an effort to explain his statement about not having had sex with B.W. for at least a month. Defendant argues this “left the jury to assess [his] credibility without seeing the confrontative context in which the statement was made.”
Other than his basic assertion that the entire interview provides context to his statement, defendant provides no argument or legal authority for why it was error to exclude the entire interview. Where a point is raised in an appellate brief without argument or legal support, “it is deemed to be without foundation and requires no discussion by the reviewing court.” (Atchley v. City of Fresno (1984) 151 Cal.App.3d 635, 647.)
Evidence Code section 356 provides that when part of a conversation is given in evidence, “the whole on the same subject may be inquired into by an adverse party.” It further provides that “when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing which is necessary to make it understood may also be given in evidence.” (Evid. Code, § 356.)
Defendant does not contend he was prevented from introducing portions of the interview that dealt with the same subject matter as the portions presented by the prosecution. Nor does defendant explain how introduction of the entire interview was necessary to make the portions introduced by the prosecution understood. Defendant asserts introduction of the entire interview was necessary to demonstrate its confrontational context. However, he makes no attempt to explain how this is so.
The trial court explained that, viewing the entire interview, this was not a situation where defendant changed his story as the interview became more aggressive. Here, defendant’s story remained the same--he had not had sex with B.W. for a month or more. Defendant pointed out that he said in the beginning of the interview he and B.W. have sex all the time. However, this general statement did not contradict the more specific statements about not having had sex recently. At any rate, the defense was not precluded from introducing this evidence. The court ruled only that the entire interview could not be presented.
Defendant has failed to demonstrate the trial court erred in excluding his entire interview with the police.
II
CONSECUTIVE SENTENCES
The trial court ordered the terms imposed on counts one and two to run consecutively. It gave as reasons the fact that the two offenses involved separate violent acts against the same victim and defendant had a reasonable time after the first act to reflect on his conduct before proceeding with the second.
Defendant contends imposition of consecutive terms based on the foregoing factual findings violated his Sixth Amendment right to trial by jury as recognized in Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi), Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely), and Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham).
In Apprendi, supra, 530 U.S. 466 [147 L.Ed.2d 435], the United States Supreme Court held that “[o]ther than the fact of a prior conviction, 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.” (Id. at p. 490 [147 L.Ed.2d at p. 455].) In Blakely, the Supreme Court applied the rule of Apprendi to invalidate a state court sentence. The court explained that “the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” (Blakely, supra, 542 U.S. at p. 303 [159 L.Ed.2d at p. 413].)
In Cunningham, the Supreme Court applied Apprendi and Blakely to California’s determinate sentencing law and held that by “assign[ing] to the trial judge, not to the jury, authority to find the facts that expose a defendant to an elevated ‘upper term’ sentence,” California’s determinate sentencing law “violates a defendant’s right to trial by jury safeguarded by the Sixth and Fourteenth Amendments.” (Cunningham, supra, 549 U.S. at p. ___ [166 L.Ed.2d at p. 864], overruling on this point People v. Black (2005) 35 Cal.4th 1238, vacated in Black v. California (Feb. 20, 2007) ___ U.S. ___ [167 L.Ed.2d 36].)
The issue here is not aggravated terms, as in Cunningham, but consecutive terms. By imposing the terms for the individual offenses consecutively rather than concurrently, defendant’s aggregate sentence was extended significantly.
The People contend defendant has forfeited the issue by failing to raise it in the trial court. The People are wrong. Defendant was sentenced on September 16, 2005. On June 20, 2005, our Supreme Court decided People v. Black, supra, 35 Cal.4th 1238, which held that a defendant does not have a right to a jury determination of factors used to impose aggravated or consecutive terms. (Id. at p. 1244.) Black was controlling law at the time of defendant’s sentencing. Cunningham, which overruled Black on this point, was not decided until January 22, 2007. Defendant was not required to make a futile objection. It is pointless to require a defendant to ask a trial court to overrule a decision of the California Supreme Court. (Moradi-Shalal v. Fireman’s Fund Ins. Companies (1988) 46 Cal.3d 287, 292, fn. 1.)
Cunningham did not address whether the decision to run separate terms concurrently or consecutively must be made by the jury. However, in People v. Black (July 19, 2007, S126182) ___ Cal.4th ___ (Black II), our State Supreme Court concluded Sixth Amendment rights are not implicated by a trial court’s decision to run separate terms consecutively. The high court explained that nothing in Apprendi or Blakely suggests they apply to factual findings that are not the functional equivalent of elements of a crime. (Black II, supra, __ Cal.4th at p. ___ [at p. 25].) According to the court: “The determination whether two or more sentences should be served [consecutively] is a ‘sentencing decision[] made by the judge after the jury has made the factual findings necessary to subject the defendant to the statutory maximum sentence on each offense’ and does not ‘implicate[] the defendant’s right to a jury trial on facts that are the functional equivalent of elements of an offense.’” (Id. at p. ___ [at p. 27].)
We are bound by Black II (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), and therefore reject defendant’s challenge to his consecutive sentences.
Disposition
The judgment is affirmed.
We concur: SIMS , Acting P.J., ROBIE , J.