Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. NA063013 Mark C. Kim, Judge.
Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Mary Sanchez, Deputy Attorney General, Chung L. Mar, Deputy Attorney General and Zee Rodriguez, Deputy Attorney General, for Plaintiff and Respondent.
PERLUSS, P. J.
Paul George Carrillo, Jr. appeals from the judgment entered after his conviction by a jury of one count of committing a lewd act upon a child (Pen. Code, § 288, subd. (a)) and his plea of no contest to an additional count of the same offense against a second child. He contends the judgment must be reversed, and a new trial granted, because he received ineffective assistance from his trial counsel. We affirm.
Statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
In March 2004 Carrillo moved into an upstairs unit in a Long Beach apartment building in which a number of children lived with their families. He introduced himself to several parents and told them he had previously lived in New Mexico where he had been a police officer for 15 years. He invited them to call him by his nickname, “Tiger,” and said he had a son and loved children. Some of those parents later testified they heard him calling to the children playing in the courtyard and participating in their play or offering them ice cream and other treats.
Two to three weeks after Carrillo moved into the building, one of the parents returned home from work and began looking for his four-year-old son Jimmy, who was supposed to be playing in the courtyard of the building with the other children. After calling his son repeatedly, the father saw Jimmy run out of Carrillo’s apartment with his shirt half tucked into his pants. Concerned Jimmy had been playing unsupervised inside an adult’s apartment, he questioned the child, who told him Tiger had “tickled his pee-pee” and then bitten it. The father immediately called the police. After confirming the story with the child, the responding officers went to Carrillo’s apartment, where they first questioned and then arrested him.
Jimmy was taken to the hospital, where a forensic nurse examiner collected sexual assault evidence from his body and underpants. When the family returned home from the hospital, the parents were asked by their neighbors about the incident. According to one of the police officers, Jimmy’s mother told their next-door neighbor, the mother of a three-year-old boy named Brendan, who also routinely played in the building courtyard, that Tiger had tickled Jimmy’s “pee-pee.” The second mother, obviously distressed, questioned Brendan, who told her Tiger had tickled his pee-pee but had not bitten it. She and her husband called the police, and Brendan repeated the story to the responding officer.
Carrillo was charged with three counts of committing a lewd act upon a child (§ 288, subd. (a)), based on the incidents with Jimmy and Brendan and Jimmy’s five-year-old sister. Carrillo was represented at trial by private counsel. In their testimony at trial, both boys, then ages five and six, recounted the same facts they had separately provided the responding officers at the time Carrillo was arrested. Their parents and the responding officers largely corroborated the accounts provided by the children. Defense counsel, plainly an experienced trial lawyer albeit less facile with the cross-examination of young children, succeeded in identifying inconsistencies in the children’s testimony the jury could have found disturbing. In particular, the defense raised questions as to whether the children had confused in their testimony actions by Carrillo, whom they called Tiger, with those of a stuffed tiger they had played with in Carrillo’s apartment. Defense counsel also elicited testimony from one of the responding officers that Brendan, in one of his early accounts of the incident, had failed to answer correctly basic questions designed to assess his competency and that Brendan’s mother had learned Carrillo had been arrested for “tickling” Jimmy’s “pee-pee” before she talked to Brendan and heard his similar story, facts that could have been seen by the jury as improperly suggestive to a three-year-old.
The charge involving Jimmy’s sister (count 2) was dismissed at the beginning of the trial.
The defense was less effective, however, in countering the People’s forensic evidence. The People first called Juli Watkins, a senior criminalist with the Los Angeles County Sheriff’s crime laboratory, who screened the sexual assault kit used on Jimmy for body fluids. Although swabs of Jimmy’s genitalia failed to yield detectible amounts of amylase, an enzyme found in large amounts in saliva (and in smaller amounts in urine and other bodily fluids), Watkins testified a stained portion of the front panel of Jimmy’s underwear tested positive for amylase, which she was able to extract and quantify in an amount sufficient for deoxyribonucleic acid (DNA) typing. Watkins then transmitted the DNA to Paul Colman, another criminalist employed by the Los Angeles County Sheriff’s crime laboratory. Colman testified he used polymerase chain reaction (PCR) technology to amplify small bits of the DNA extracted from Jimmy’s underpants and reference samples of Jimmy’s and Carrillo’s saliva. The commercially available PCR kits used by Colman (Profiler Plus and Cofiler) focus on 13 regions of interest -- or loci -- in the DNA molecule known as “short tandem repeats” (STRs) that are highly variable, or polymorphic, in the human population. As Colman explained, these particular STRs are “so highly discriminating that no two unrelated people would ever be expected to share the same 13 bits of information.” Using PCR analysis, Colman testified the tester can identify the particular alleles that are present at each of the 13 loci of any particular sample of DNA. As every individual has two separate alleles at each locus -- one from the mother and one from the father -- the tester can use the resulting alleles to identify the source of the DNA sample.
Amylase was not detected on Jimmy’s scrotal or perineum swabs, and the external penile swab was inconclusive. Brendan was not subjected to a forensic examination because he denied Tiger had “bitten” or “kissed” his “pee-pee.”
The word “allele” generally refers to alternative forms of a gene. (People v. Venegas (1998) 18 Cal.4th 47, 59, fn. 10.)
According to Colman, the results of his testing indicated Jimmy’s underwear swatch contained a mixture of DNA from at least two sources, one of which contributed a smaller proportion of the extracted DNA. Because alleles consistent with Jimmy’s reference sample appeared at each of the 13 loci mapped by Colman, he identified Jimmy as the major contributor to the DNA sample he analyzed. But Colman also found alleles belonging to another “minor” contributor to the DNA sample at many of the loci. As he told the jury, Jimmy’s alleles would be expected to mask those of the minor contributor if the minor contributor had the same alleles as Jimmy at any particular locus; but at sites where Jimmy’s alleles differed from the minor contributor, the test would yield more than two alleles. Colman found as many as four alleles in some loci. Reviewing each separate site, Colman compared the alleles found in the mixed DNA sample to the alleles generated by Carrillo’s reference sample. Colman explained to the jury, “If I saw at any locus an allele that could not be attributable to one or the other or both . . ., then I would have to exclude [Carrillo as a source]. I would have evidence of somebody else in there. . . . But I don’t have in this data set any allele detected that is inconsistent with originating from [Jimmy] or [Carrillo] or both.” In other words, Colman was unable to exclude Carrillo as a contributor to the DNA extracted from Jimmy’s underwear.
Colman then extrapolated the data to determine the probability of finding another person whose alleles would be consistent with those found in the DNA sample (the combined probability of inclusion) and concluded random populations of 21 million Caucasians, 90.6 million African Americans or 5.4 million Hispanics would each yield one additional person who could not be excluded as a contributor. Colman further testified, if he assumed only two people contributed to the sample and one of them was Jimmy (the likelihood ratio), the probability would decrease to one in 2.4 billion Caucasians, 5.7 billion African Americans or 566 million Hispanics. In contrast, Colman stated, “If I was to mix DNA from Jimmy [] and Paul Carrillo, the chance that I would get this mixed profile is 100 percent.”
Lastly, Colman was asked about a report received from the defense expert, Marc Taylor, a criminalist for a private firm who had once worked for the Los Angeles County Coroner’s Office. Colman testified the PCR results obtained by Taylor, who also analyzed DNA extracted from the stained portion of Jimmy’s underwear using Profiler Plus (but without the addition of Cofiler), were entirely consistent with Colman’s. The only difference in Taylor’s results was his detection of sperm cells in Jimmy’s underwear sample, which Colman testified could have been transferred in the laundry.
Taylor is an experienced expert on DNA analysis and has testified in several of the cases establishing the validity of DNA forensic evidence. (See, e.g., People v. Henderson (2003) 107 Cal.App.4th 769; People v. Smith (2003) 107 Cal.App.4th 646; People v. Allen (1999) 72 Cal.App.4th 1093.)
Carrillo did not testify in his own defense. In addition to the police officer who impeached certain statements made by Brendan’s mother, the defense called Jimmy to identify the stuffed tiger he had played with in Carrillo’s apartment. The defense also played the videotape of a detective’s interviews with Jimmy and Brendan. Taylor then testified about the DNA evidence recovered from Jimmy’s underpants. Carrillo’s counsel did not ask Taylor about his own results obtained from analysis of the sample using the Profiler Plus kit but instead sought to establish three points: (1) Carrillo’s saliva on the stuffed tiger could have been transferred to Jimmy’s underwear if he had been tickled with the tiger on his torso; (2) typically amylase would be detected on the penile shaft absent washing before testing; and (3) sperm cells most likely originating from a relative (that is, Jimmy’s father) were detected in the underwear sample. On cross-examination Taylor agreed the sperm could have been transferred in the wash, as postulated by Colman.
The jury convicted Carrillo on the lewd act count (count 1) involving Jimmy, but deadlocked 11-1 in favor of guilt on the count involving Brendan (count 3); and the court declared a mistrial as to that count. Carrillo then entered a negotiated no contest plea to count 3 to avoid the possibility of a life sentence were he to be found guilty on retrial. Following the plea, Carrillo retained new counsel and filed a motion for a new trial alleging ineffective assistance by his original trial counsel in contesting the People’s DNA evidence. The court denied the motion on the ground Jimmy’s testimony was credible and adequate to support the conviction.
The trial court sentenced Carrillo to an aggregate state prison term of 10 years, the eight-year upper term on count 1 and a consecutive term of two years (one-third the middle term of six years) on count 3. Pursuant to the plea agreement, the court struck the section 667.61, subdivision (b), enhancement on count 3.
CONTENTIONS
Carrillo contends the trial court erred in denying his motion for a new trial based on his counsel’s failure to adequately challenge the People’s DNA evidence and counter that evidence with complete testimony from his own expert. In addition, Carrillo argues the court violated his Sixth and Fourteenth Amendment right to a jury trial, as defined in Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham), when it imposed the upper term sentence of eight years on count 1.
DISCUSSION
1. The Legal Standard Governing Motions for New Trial Based on Ineffective Assistance of Counsel
Although ineffective assistance of counsel is not a statutory ground for granting a new trial under Penal Code section 1181, “in appropriate circumstances justice will be expedited by avoiding appellate review, or habeas corpus proceedings, in favor of presenting the issue of counsel’s effectiveness to the trial court as the basis of a motion for new trial. If the court is able to determine the effectiveness issue on such motion, it should do so.” (People v. Fosselman (1983) 33 Cal.3d 572, 582-583; People v. Andrade (2000) 79 Cal.App.4th 651, 659.) We review the denial of a motion for a new trial de novo when claimed errors of constitutional magnitude are at stake (People v. Ault (2004) 33 Cal.4th 1250, 1260-1262), although we must defer to the trial court’s express or implied findings if supported by substantial evidence. (People v. Taylor (1984) 162 Cal.App.3d 720, 724.)
A defendant claiming ineffective assistance of counsel in violation of his Sixth Amendment right to counsel must show not only that his or her counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms but also that it is reasonably probable, but for counsel’s failings, the result would have been more favorable to the defendant. (Strickland v. Washington (1984) 466 U.S. 668, 687, 694 [104 S.Ct. 2052, 80 L.Ed.2d 674] (Strickland); In re Jones (1996) 13 Cal.4th 552, 561.) “‘The burden of sustaining a charge of inadequate or ineffective representation is upon the defendant. The proof . . . must be a demonstrable reality and not a speculative matter.’” (People v. Karis (1988) 46 Cal.3d 612, 656.) There is a presumption the challenged action “‘might be considered sound trial strategy’” under the circumstances. (Strickland, at p. 689; accord, People v. Dennis (1998) 17 Cal.4th 468, 541.) On a direct appeal a conviction will be reversed for ineffective assistance of counsel only when the record demonstrates there could have been no rational tactical purpose for counsel’s challenged act or omission. (People v. Lucas (1995) 12 Cal.4th 415, 442 [“[r]eviewing courts reverse convictions on direct appeal on the ground of incompetence of counsel only if the record on appeal demonstrates there could be no rational tactical purpose for counsel’s omissions”]; People v. Mitcham (1992) 1 Cal.4th 1027, 1058 [“‘[i]f the record sheds no light on why counsel acted or failed to act in the manner challenged, “unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation,” [citation], the contention [that counsel provided ineffective assistance] must be rejected’” (first set of brackets in original)].)
2. The Record Does Not Support Carrillo’s Claim of Ineffective Assistance from His Trial Counsel
California courts have consistently approved “the use of polymerase chain reaction and short tandem repeats technology to analyze a mixed-source forensic sample.” (People v. Smith (2003) 107 Cal.App.4th 646, 665; People v. Hill (2001) 89 Cal.App.4th 48, 58-59; People v. Allen (1999) 72 Cal.App.4th 1093, 1097.) Accordingly, Carrillo does not challenge the admissibility of the evidence but rather asserts his defense counsel failed to adequately prepare to cross-examine the expert testimony offered by the People or to elicit adequate rebuttal testimony from his own expert.
“PCR, which takes small pieces of DNA and copies or amplifies them, is used when the DNA sample is too small or degraded to perform the RFLP method. ‘PCR forensic analysis involves three steps. First, DNA is extracted from cells in the sample. Second, select regions of the DNA are amplified. Scientists have identified these regions, also referred to as genes or genetic markers, as areas that exhibit great genetic variation among the population. . . . After amplification, in the third and final step of PCR analysis the amplified gene is “typed,” through the use of DNA probes, to identify the specific alleles it contains. If the DNA profile thus constructed differs in any way between the suspect and the sample, the suspect is excluded. But if the profiles match, the analyst must next determine how common the profile is in the population.’” (People v. Henderson (2003) 107 Cal.App.4th 769, 778, footnotes and citations omitted; see generally People v. Smith, supra, 107 Cal.App.4th at pp. 671-672 [discussing validity of PCR/STR analysis for mixed source samples]; U.S. v. Trala (D.Del. 2001) 162 F.Supp.2d 336 [same].)
Carrillo’s argument is premised on what has been described as “inherent flaws” in the PCR/STR process. (U.S. v. Trala (D.Del. 2001) 162 F.Supp.2d 336, 349 (Trala).) As the Trala court explained, after amplification of the DNA, “the analyst proceeds to identify fragments of different sizes by their migration in an electric field. In order to detect variations, analyst use a process known as electrophoresis. During the PCR amplification of the STR fragments, the primers that are used contain fluorescent tags, which become incorporated into the STR fragments during amplification. During electrophoresis, the amplified fragments will pass through a gel and eventually pass through a detection window at the end of the gel.” (Id. at p. 342.) “[T]he rate at which the different DNA fragments move through the gel is converted into a pattern of peaks to be read by an analyst for interpretation. The concepts of stutter, allelic dropout and differential amplification all relate to whether a peak is able to be interpreted.” (Id. at p. 349, fn. 14; see also Commonwealth v. Gaynor (2005) 443 Mass. 245, 264 [820 N.E.2d 233] [“[I]nterpretive challenges arise from the presence of technical artifacts: mistakes in the PCR amplification process that replicates a defined segment of DNA through the use of enzymes. Artifacts typically give faint readings.”]; Roberts v. U.S. (D.C. 2007) 916 A.2d 922, 932 [“‘An artifact is a result that does not come from the things one actually intends to test.’ ‘Stutter’ is ‘[a] minor band or peak [on the electropherogram generally] appearing one [STR] repeat unit smaller than a primary STR allele.’”]; People v. Smith, supra, 107 Cal.App.4th at p. 657[“stutter” “is a phenomenon that occurs unpredictably and can mask small alleles or actually be an allele that occurs in a stutter position”].)
Although the defendant in Trala argued the test results should be excluded because these flaws allow an expert to explain away inconsistencies in the data in order to fit the DNA profile to the accused, the court allowed the evidence, stating, “In light of the controls to reduce the effects of inherent flaws such as stutter or allelic drop out, the court finds that the defendant’s challenges are directed to the weight of the evidence and not its admissibility.” (Trala, supra,162 F.Supp.2d at p. 349.)
Carrillo makes a similar argument here, arguing his trial counsel failed to adequately challenge Colman’s raw data, which allegedly contained inconsistencies between the underwear sample and Carrillo’s reference sample, to demonstrate Colman’s interpretation of the data was skewed by his assumption he would find a match between the two samples. In particular, Carrillo points to Colman’s identification of an allele at locus CSF1P0 he attributed to Carrillo but which fell below Colman’s own stated reporting threshold. In other words, the test showed the presence of only two alleles above threshold levels -- an 11 and a 12 -- both of which could be attributed to Jimmy. Carrillo’s reference sample, however, contained an 11 and 14 at that locus. Absent the 14, Carrillo contends, he should have been excluded as a contributor to the mixed DNA sample.
Colman stated the Sheriff’s Crime Laboratory uses a threshold value of 75 R.F.U.’s (“rated fluorescence units”).
Carrillo’s counsel did in fact challenge Colman’s failure to consider the absence of a 14 allele at locus CSF1P0. And Colman answered, “That’s a very good question. The answer to the question is as follows: That particular locus is what we call a relatively large locus and the DNA, in fact, from the 14 was there, but it was below threshold. I could detect it because I did obviously look for it. I wanted to see if it was there. And it, in fact, was there. But we have what we call a threshold for recording [sic] purposes. So for reporting purposes since I couldn’t record it, I couldn’t use this locus for stat[istic]s and all the stats . . . I relayed to you did not incorporate this locus. But the 14, in fact, is there . . . . It was detected but so weakly that it didn’t rise to the threshold that our laboratory requires an allele to rise to before we can conclusively . . . use it for statistics.” Defense counsel then asked whether the 14 Colman detected above baseline but below threshold for reporting purposes could have been an artifact. Colman answered, “No.”
Contrary to Carrillo’s contention Colman’s opinion relied improperly on his assumption the underwear sample matched Carrillo’s reference sample, Colman followed his laboratory’s protocol and expressly excluded from his statistical probability calculations any sub-threshold results, including locus CSF1P0. Even independent of those loci, the probability calculation yielded by Colman’s analysis was highly probative of Carrillo’s guilt.
Carrillo’s counsel, however, did not cross-examine Colman on other alleged inconsistencies in Colman’s raw data. Nor did he ask Carrillo’s expert to discuss those inconsistencies. In support of his attack on the evidence against him, Carrillo cites the Fifth District’s decision overturning a conviction based on questionable DNA testimony in People v. Pizarro (2003) 110 Cal.App.4th 530 (Pizarro), disapproved in part by People v. Wilson (2006) 38 Cal.4th 1237 (Wilson). In Pizarro the court criticized the prosecution’s reliance on the defendant’s genetic traits to establish the perpetrator’s genetic traits, stating: “The defendant’s traits fill out the perpetrator’s description with facts that are not in evidence, and the perpetrator’s traits are ‘proved’ by what is in effect a presumption that because the defendant possesses certain traits, the perpetrator also possesses those traits. Such a presumption operates as a substitute for proper evidence of the perpetrator’s traits, thereby lightening the prosecution’s burden of affirmatively proving the defendant’s identity as the perpetrator and undermining the defendant’s presumption of innocence.” (Pizarro, at p. 544.) Elaborating on its own discomfort with the perceived infallibility of DNA technology, the Court of Appeal cautioned, “[V]arious commentators agree that the perpetrator’s genetic profile must be ascertained independently of the defendant’s profile. DNA bands ‘must be identified separately and independently in [the perpetrator’s and defendant’s] samples. It is not permissible to decide which features of [a perpetrator’s] sample to count and which to discount on the basis of a comparison with a [defendant’s] sample, because this can bias one’s interpretation.’ [Citation.] . . . Indeed, ‘[c]ommentators have noted a disturbing tendency for forensic analysts to resolve ambiguities in DNA patterns in a manner consistent with the expected result. . . . “[O]ne runs the risk of discounting precisely those differences that would exonerate an innocent defendant.” An analyst who too readily dismisses discrepancies in a DNA test that do not fit with other evidence can mistakenly conclude that weak, equivocal evidence is quite powerful, and thereby mislead the trier of fact.’” (Id. at p. 599, fn. 63.) The court proceeded to reverse the trial court’s admission of DNA evidence based on the prosecution’s failure to establish foundational facts independently of the defendant’s genetic and ethnic characteristics. (Id. at pp. 621-622, 634.)
Carrillo claims his counsel failed to cross-examine Colman on the inconsistency of recognizing a 14 at CSF1P0, while not acknowledging a number of other potential alleles at other loci that similarly fell below the laboratory threshold -- approximately 15 in all -- three of which might have exonerated Carrillo.
But the Pizarro court’s cautious approach has, at least in part, been rejected by the Supreme Court. In Wilson, supra, 38 Cal.4th 1237 the Court disapproved of Pizarro’s broad rejection of ethnically targeted probability calculations absent independent confirmation of the perpetrator’s ethnicity and upheld the admission of such testimony so long as a range of statistics from major racial groups is presented. (Id. at pp. 1250-1251.)
Likewise, the concerns voiced in Pizarro, while sobering, do not persuade us Carrillo’s right to effective assistance of counsel was violated here. While Colman may have, at times, incorrectly posited the purpose of his analysis, the fact remains he was charged with detecting the possibility of a match between Jimmy’s underwear sample and Carrillo’s reference sample. As the Supreme Court explained in Wilson, “‘DNA analysis . . . is a process by which characteristics of a suspect’s genetic structure are identified, are compared with samples taken from a crime scene, and, if there is a match, are subjected to statistical analysis to determine the frequency with which they occur in the general population.’” (Wilson, supra, 38 Cal.4th at p. 1242.) Colman discharged this duty, and Carrillo’s counsel was in turn charged with identifying and challenging substantive mistakes in Colman’s analysis.
Whether or not the DNA evidence was truly inconsistent and would justify relief on a writ of habeas corpus, the issue before us is far more limited: Did Carrillo’s counsel’s performance fall below an objective standard of reasonableness under prevailing professional norms of competence in light of the evident strategy pursued at trial? The answer is no on this record. In his direct testimony Colman stated unequivocally that Taylor’s PCR analysis was entirely consistent with his own. As we must, we read this uncontested statement and the evident purpose of Taylor’s testimony (eliciting an alternative explanation for the presence of Carrillo’s (or another person’s) bodily fluids on Jimmy’s underpants) as confirmation of a legitimate trial tactic not to dwell on DNA evidence Carrillo’s own expert apparently considered irrefutable. Under the limited scope of inquiry available to us, we see no alternative but to reject Carrillo’s assertion of ineffective assistance of counsel. (See Strickland, supra, 466 U.S. at p. 689 [courts must presume challenged action “‘might be considered sound trial strategy’” absent evidence to contrary]; accord, People v. Dennis, supra, 17 Cal.4th at p. 541.)
Well after briefing was completed in this appeal and shortly before oral argument, Carrillo’s appellate counsel filed directly with this court a petition for a writ of habeas corpus directed to the claim of ineffective assistance of counsel. That petition will be separately addressed by the court.
Accordingly, the trial court did not err in denying Carrillo’s motion for a new trial.
3. Although the Court’s Factfinding on the Aggravated Circumstances Underlying the Sentence Violated Carrillo’s Sixth Amendment Rights, the Error Was Harmless
In Cunningham, supra, 549 U.S. ___ [127 S.Ct. 856], the United States Supreme Court reaffirmed Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403] (Blakely) and Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2438, 147 L.Ed.2d 435], overruled People v. Black (2005) 35 Cal.4th 1238 (Black I) and held California’s determinate sentencing law violates a defendant’s right to a jury trial guaranteed by 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) that expose a defendant to an upper term sentence by a preponderance of the evidence. “This Court has repeatedly held that, under the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence.” (Cunningham, at p. ___ [127 S.Ct. at pp. 863-864].)
Following its decision in Cunningham, the United States Supreme Court vacated the judgment in Black I, supra, 35 Cal.4th 1238and remanded the case to the California Supreme Court for further consideration in light of Cunningham. In People v. Black (2007) 41 Cal.4th 799 (Black II) the Court held the existence of at least one aggravating circumstance established by means that satisfy the governing Sixth Amendment authorities “renders a defendant eligible for the upper term sentence” under the determinate sentencing law, so that “any additional factfinding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to jury trial.” (Id. at p. 812.) “The court’s factual findings regarding the existence of additional aggravating circumstances may increase the likelihood that it actually will impose the upper term sentence, but these findings do not themselves further raise the authorized sentence beyond the upper term. No matter how many additional aggravating facts are found by the trial court, the upper term remains the maximum that may be imposed. Accordingly, judicial factfinding on those additional aggravating circumstances is not unconstitutional.” (Id. at p. 815.)
In Black I, supra, 35 Cal.4th 1238 the California Supreme Court had held, notwithstanding Blakely, “the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence or consecutive terms under California law does not implicate a defendant’s Sixth Amendment right to a jury trial.” (Black I, at p. 1244.) The Court explained, “The jury’s verdict of guilty on an offense authorizes the judge to sentence a defendant to any of the three terms specified by statute as the potential punishments for that offense, as long as the judge exercises his or her discretion in a reasonable manner that is consistent with the requirements and guidelines contained in statutes and court rules.” (Id. at pp. 1257-1258.)
In a companion case filed the same day as Black II, People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval),the Court further held, if no aggravating factors have been found consistent with Sixth Amendment principles (that is, found to be true by a jury beyond a reasonable doubt, admitted by the defendant or included within the “recidivism” exception recognized by the United States Supreme Court in Cunningham and Blakely), the “denial of the right to a jury trial on aggravating circumstances is reviewed under the harmless error standard set forth in Chapman v. California (1967) 386 U.S. 18 [87 S.Ct. 824, 17 L.Ed.2d 705] . . . .” (Sandoval, at p. 838.) “[I]f a reviewing court concludes, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury, the Sixth Amendment error properly may be found harmless.” (Id. at p. 839.)
In imposing the upper term on count 1, the trial court relied upon two aggravating factors: The victims were especially vulnerable due to their ages and Carrillo took advantage of a position of trust and authority by telling family members he had been a police officer for 15 years (Cal. Rules of Court, rule 4.421(a)(3) & (11)). Imposition of the upper term based on the trial court’s own factual findings regarding these aggravating circumstances, which did not involve a prior conviction or even more broadly the defendant’s recidivism, violated Carrillo’s constitutional right to a jury trial. (Sandoval, supra, 41 Cal.4th at pp. 837-838 [imposition of upper term sentence based on fact victim was particularly vulnerable, if not admitted by defendant or established by jury’s verdict, violates defendant’s Sixth Amendment rights]; see Cunningham, supra, 549 U.S. at p. ___ [127 S.Ct. 856]; Black II, supra, 41 Cal.4th at p. 815.) However, from this record we are confident the jury would necessarily have found true beyond a reasonable doubt that Jimmy and Brendan, Carrillo’s victims, who were ages four and three at the time of the crimes, were in fact particularly vulnerable; and the trial court’s error, therefore, was harmless.
Although a determination whether the victim was particularly vulnerable may in some cases “require an imprecise quantitative or comparative evaluation of the facts” that makes it “difficult for a reviewing court to conclude with confidence that, had the issue been submitted to the jury, the jury would have assessed the facts in the same manner as did the trial court” (Sandoval, supra, 41 Cal.4th at p. 840), this is not one of those cases. The children’s very young ages here underscore the inevitability of a jury finding they were “obviously and indisputably vulnerable.” (See id. at p. 842 [“[t]he record, however, does not reflect such a clear-cut instance of victim vulnerability that we confidentially can conclude the jury would have made the same findings, as might be the case if, for example, the victims had been elderly, very young, or disabled, or otherwise obviously and indisputably vulnerable”].)
DISPOSITION
The judgment is affirmed.
We concur: WOODS, J., ZELON, J.