Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County Super.Ct.No. FSB043314. Donna Gunnell Garza, Judge.
Charlotte E. Costan, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Rhonda Cartwright-Ladendorf, Supervising Deputy Attorney General, and Heather F. Crawford, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P. J.
Defendant Ronald Clyde Dean appeals from a jury verdict of continuous sexual abuse of a child in violation of Penal Code section 288.5, subdivision (a) (count 2), and two separate lewd acts on a child in violation of section 288, subdivision (a) (counts 1 and 3). The victim of these offenses was defendant’s daughter, who was under 14 years old at the time the abuse took place. As a result of the jury’s verdict, the trial court imposed a total prison term of 26 years.
All statutory references are to the Penal Code unless otherwise indicated.
Defendant argues his conviction on all counts should be reversed because the trial court erroneously admitted irrelevant but prejudicial testimony; there is insufficient evidence to support his conviction on count 3; and the trial court’s imposition of aggravated terms and consecutive sentences violate his constitutional right to a jury trial as articulated in the Supreme Court’s decision in Blakely v. Washington (2004) 542 U.S. 296 (Blakely). Because it materially affects our analysis of the aggravated terms imposed by the trial court, we considered supplemental briefing by the parties in light of the Supreme Court’s recent decision in Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham).
FACTUAL AND PROCEDURAL HISTORY
The victim estimated she was between eight and nine years old when defendant began abusing her sexually. At the time this case went to trial, she was 14 years old. When the abuse began, the victim lived in a house with defendant, as well as her mother, older brother, and three younger sisters. During trial, the victim testified about several incidents of sexual abuse against her by defendant while the family was living in the house. When the victim was 11 years old, the family lived for a time in different motels, and defendant continued to abuse her during this time.
For reasons unrelated to the sexual abuse, the victim and her siblings were placed in foster care from approximately February 2001, until October 2001. While the children were in foster care, there were regular visitations, including unsupervised weekend and overnight visits with the parents. The children were then returned to the home. However, the parents separated, and the mother moved into a boyfriend’s home. The victim understood at this time her parents would be getting a divorce.
In late January of 2004, defendant brought the victim and her siblings to live in a mobilehome with his friends, Danae and Brian, who were a married couple. The victim testified there was another incident of sexual abuse by her father while they were living in the mobilehome. The victim thereafter revealed to Danae that her father had been sexually abusing her and asked for help. Danae told the victim to tell her mother. When the mother called the mobilehome, Danae gave the victim the telephone. According to Danae, she listened to some or all of the conversation, and the victim told her mother about the abuse. The mother reported it to the police. The victim has not seen or heard from her mother since then and does not know where she is. The mother was not called as a witness at trial.
After the mother reported the allegations of abuse, a female police officer who was trained in investigating child abuse and molestation cases arrived at the mobilehome to investigate allegations of sexual abuse against the victim by defendant. After interviewing the victim and observing and confronting defendant at the mobilehome, the police officer arrested defendant and had the children taken by Child Protective Services. The victim was examined by a forensic pediatrician for physical signs of abuse. At trial, the pediatrician testified that a vaginal examination of the victim was highly suggestive of sexual abuse. Since then, the victim and her siblings have been in foster care.
DISCUSSION
1. Insufficient Evidence
In count 3, it was alleged defendant committed a lewd act on the victim in violation of section 288, subdivision (a), during the specific time period of January 1, 2004, through February 29, 2004, while defendant, the victim, and her siblings were living in the mobilehome with Danae and Brian. Defendant argues there is insufficient evidence to support his conviction on count 3, because the prosecution “did not establish the crucial element of a lewd touching” during the specific time period. Although acknowledging the victim testified defendant asked her to touch him during this time period, defendant claims the victim testified no touching occurred because she refused.
“It is the prosecution’s burden in a criminal case to prove every element of a crime beyond a reasonable doubt.” (People v. Cuevas (1995) 12 Cal.4th 252, 260, citing In re Winship (1970) 397 U.S. 358.) “To determine whether the prosecution has introduced sufficient evidence to meet this burden, courts apply the ‘substantial evidence’ test. Under this standard, the court ‘must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ ” (People v. Cuevas, supra, at p. 260, quoting People v. Johnson (1980) 26 Cal.3d 557, 578.) “In reviewing a jury’s determination, we view the whole record in a light most favorable to the verdict, drawing all reasonable inferences and resolving all conflicts in support of the jury’s verdict.” (People v. Massie (2006) 142 Cal.App.4th 365, 371.) “We must uphold the verdict unless it clearly appears that upon no hypothesis whatever is there sufficient evidence to support it.” (Ibid.)
Section 288, subdivision (a), is violated by “ ‘any touching’ ” of an underage child committed with the intent to sexually arouse either the defendant or the child. (People v. Martinez (1995) 11 Cal.4th 434, 442.) There is nothing in the language of section 288, subdivision (a), which “restricts the manner in which such contact can occur or requires that specific or intimate body parts be touched.” (Ibid.)
At trial, the victim was asked whether she remembered “the last time [defendant] touched you?” She responded as follows: “Yes. I was living at Brian’s house and it was five days before the police came.” Defendant, the victim, and her siblings went to live with Brian and Danae in a mobilehome sometime during late January of 2004; the police arrested defendant and had the children removed from the home on or about March 1, 2004. While they were living with Brian and Danae, the victim recalled defendant asking her to go with him to look at another mobilehome nearby that he was trying to rent. While they were inside this other mobilehome, the victim testified defendant “asked [her] to do something for him.” She testified that she responded “no” because she was “tired of it,” and he then “went in the bathroom and started jacking off.” Although she previously indicated the last time defendant touched her was while they were living at Brian’s five days before the police came, the victim did not recall actually touching defendant during this particular incident. While being interviewed during the initial investigation, the victim said defendant attempted to force her head down towards his penis during this incident. Viewing her testimony concerning this time period as a whole, as well as her prior statement made closer in time, it would be reasonable for the jury to infer defendant did touch the victim with the requisite intent during the challenged time period of January 1, 2004, through February 29, 2004.
Viewing the evidence in the light most favorable to the judgment, a jury could reasonably infer from all of the facts and circumstances that defendant did indeed touch the victim with the requisite intent during the challenged time period of January 1, 2004, through February 29, 2004. We therefore conclude there is substantial evidence to support a conviction for a lewd touching of the victim in violation of section 288, subdivision (a), as alleged against defendant in count 3.
2. Erroneous Admission of Evidence
Defendant claims the trial court erroneously and prejudicially declined to redact a statement by a police examiner during a taped interview with the victim which was played for the jury. During the taped interview, the examiner made the following remarks: “You know that what he did was wrong. And I’m glad that you told me the truth because now I can protect you and protect your sisters from that happening to them too.” Because the victim’s credibility was of paramount importance to the prosecution’s case and an issue for the jury alone to decide, defendant argues it was erroneous to admit the officer’s statement because it unfairly bolstered her credibility “coming from an officer of the law.”
Appellate courts generally apply the abuse of discretion standard when reviewing a trial court’s ruling on the admissibility of evidence. (People v. Waidla (2000) 22 Cal.4th 690, 717-718.) In People v. Sergill (1982) 138 Cal.App.3d 34 (Sergill), also a child sexual abuse case, reversible error was found because the trial court allowed two investigating police officers to testify at trial about opinions they formed as to whether the child was being truthful about the allegations when they interviewed her. (Id. at pp. 37-38.) During trial, the defendant testified in his own defense and denied the allegations. (Id. at p. 37.) Defense counsel called the investigating officers to testify about discrepancies between the child’s report to police and her trial testimony. (Id. at p. 38.) On cross-examination, the prosecutor asked the investigating officers whether they had formed opinions as to whether the child’s allegations were true. (Ibid.) In overruling defendant’s objection, the trial court stated as follows: “ ‘Number one, a witness is entitled to give his opinion on the questions that the jury is entitled to determine. Number two, this officer has had approximately seven years of experience, and has written, as I recall his testimony, something in the nature of a thousand or more reports, which indicates that he has had experience in taking witnesses’ testimony, and I think [in] the course of that he would be normally expected to judge whether a person, in his opinion, is telling the truth or not. I think that he’s qualified to render his opinion in that regard.’ ” (Ibid.) Thereafter, both officers testified they were convinced the child was being truthful and explained the reasons for their beliefs. One of the officers stated he had interviewed many children, and, as a result, could usually determine with a high degree of certainty whether their allegations were true. (Ibid.)
In reaching its conclusion there was reversible error as a result of the testimony, the appellate court in Sergill opined the officers’ opinions were inadmissible for several reasons. First, the testimony did not qualify as reputation evidence, because the officers did not know the child and therefore could not testify as to her reputation for being truthful. (Sergill, supra, 138 Cal.App.3d at p. 39.) Second, the officers’ experience interviewing reporters of crimes numerous times during their careers did not qualify them as experts in judging truthfulness, and in any case, the veracity of those who report crimes is not a proper subject for expert testimony. (Ibid.) Third, the testimony was not admissible as lay opinion under Evidence Code section 800, subdivision (b). (Sergill, at p. 40.) “A lay witness may testify in the form of an opinion only when he cannot adequately describe his observations without using opinion wording,” such as when the details of an observation are too complex or subtle for concrete description. (Ibid.) The officers, however, were able to testify about their interviews with the child victim in concrete detail. Finally, the officers’ opinions about the victim’s veracity were not relevant because they did not fall within the list of factors bearing on credibility listed in Evidence Code section 780. (Sergill, at p. 40.) Finding error, the appellate court in Sergill considered “whether it is reasonably probable that a result more favorable to appellant would have been reached had this evidence not been admitted. (People v. Watson (1956) 46 Cal.2d 818, 836.)” (Sergill, at p. 41.) The appellate court concluded the error in allowing the testimony was prejudicial under People v. Watson because the child victim’s credibility was the “critical question,” and there were other doubts about the evidence as a whole. (Sergill, at p. 41.)
In our view, the facts and circumstances of Sergill are distinguishable from those at issue here for a number of reasons. Unlike Sergill, the interviewer’s statement about the victim’s veracity in this case involved a single, brief statement made to the victim during a taped interview which was replayed to the jury. In other words, the statement was not made directly to the jury to convince the jurors of the victim’s credibility. Rather, the statement was made during the course of an investigative interview in order to comfort and reassure the victim. The statement was also insignificant compared to the strong evidence presented against defendant. In contrast to Sergill, the trial court in this case did not interpose its own views while the jury was present indicating the interviewing officer was highly qualified to render an opinion as to whether the reporting victim was telling the truth. In addition, the jury was instructed: “It is up to you exclusively to decide what happened.” We assume the jury followed this instruction and conclude there was no abuse of discretion by the trial court in declining to redact the challenged statement from the interview tape. (People v. Harris (2005) 37 Cal.4th 310, 350.)
3. Aggravated Terms.
After a jury found defendant guilty as charged, the trial court sentenced him as follows: Using count 2, continuous sexual abuse of a child in violation of section 288.5, subdivision (a), as the base term, the trial court sentenced defendant to the upper term of 16 years. On count 1, committing a lewd act on a child under 14 years old in violation of section 288, subdivision (a), the trial court imposed the upper term of eight years in state prison. On count 3, a second violation of section 288, subdivision (a), the trial court imposed one-third of the middle term of two years. Defendant is therefore serving a 26-year prison sentence.
Defendant argues his sentence is unconstitutional under Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), and Blakely v. Washington (2004) 542 U.S. 296 (Blakely). Defendant believes his sentence is unconstitutional because the trial court imposed aggravated, upper terms on counts 1 and 2 based on facts which were not admitted or found true by a jury. Preliminarily, we must reject the People’s contention defendant failed to specifically object to his sentence on constitutional grounds in the trial court, and as a result, he forfeited these claims. Although acknowledging Blakely was not decided until defendant had already been sentenced, the People argue forfeiture still applies because defendant was sentenced after Apprendi, which provided a basis for the objection. We disagree. Defendant was sentenced on April 26, 2006. At that time, the trial court was bound by People v. Black (2005) 35 Cal.4th 1238 (Black), which was decided on June 20, 2005. In Black, our Supreme Court concluded Apprendi and Blakely did not impact California’s determinate sentencing law (DSL). As a result, it would have been futile for defendant to object at the time of sentencing on the constitutional grounds presented in this appeal.
While this case was pending before us, the United States Supreme Court in Cunningham overruled Black, supra, 35 Cal.4th 1238, and concluded that California’s DSL violates a criminal defendant’s right to a jury trial guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution to the extent it allows trial courts to impose an aggravated upper term based on facts found by the court rather than by a jury beyond a reasonable doubt. (Cunningham, supra, 127 S.Ct. at pp. 863-864.) Unless an aggravated term is justified based on the fact of a prior conviction, the Supreme Court in Cunningham also concluded the statutory middle term is the maximum or presumptive sentence a judge may impose based on its own factual findings. (Ibid.) In addition, under California law, a trial court imposing an aggravated sentence cannot rely on jury findings which are either elements of the defendant’s offenses or are used to impose enhancements. (People v. Hill (1994) 23 Cal.App.4th 1566, 1575.) As noted earlier, we considered supplemental briefing by the parties in light of Cunningham.
During the sentencing hearing, the trial court imposed upper terms on counts 1 and 2 because it found aggravating factors outweighed those in mitigation. As mitigating factors, the trial court noted defendant’s lack of “any significant or any prior felony criminal history,” other than a misdemeanor, and satisfactory performance on probation. Accordingly, we cannot determine the constitutionality of defendant’s sentence by relying on Cunningham’s exception for the use of prior convictions to justify imposing an upper term without the necessity of a jury trial.
As aggravating factors, the trial court also cited two factors constituting an element of the charged offenses. First, the trial court cited the fact that the victim was a child “under the age of fourteen years.” However, this factor cannot be considered because it is an element of count 1, which alleged a violation of section 288, subdivision (a). To prove a violation of section 288, subdivision (a), the prosecution was required to prove the victim was a child “under the age of fourteen years.” Second, the trial court cited the continuous nature of the abuse. However, this factor cannot be considered to justify an upper term, because it is an element of count 2, which alleged a violation of section 288.5, subdivision (a), since the prosecutor had the burden of proving facts establishing that the nature of the sexual abuse was “continuous.”
The remaining factors noted by the trial court during sentencing to justify aggravated terms included the victim’s particular vulnerability, the infliction of serious emotional injury and great bodily harm, as well as the seriousness of the crimes. The trial court’s finding that these factors justified aggravated terms was primarily based on evidence presented on the underlying charges during trial. The victim also submitted a statement for consideration by the court during sentencing. None of these facts were admitted by the defendant or specifically established by the jury’s verdict. As a result, we conclude the upper terms imposed on counts 1 and 2 violated defendant’s constitutional right to a jury trial.
In People v. Sandoval (2007) 41 Cal.4th 825, 838, our Supreme Court recently held that violations of a defendant’s right to a jury trial on aggravating circumstances are subject to the harmless error analysis as set forth in Chapman v. California (1967) 386 U.S. 18, 23 (Chapman). Pursuant to Chapman and Sandoval, we may find an error harmless if we conclude 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.” (Sandoval, supra, 41 Cal.4th at p. 839.)
Based on our review of the record, we conclude the jury would have undoubtedly found one or more of the relevant aggravating factors true beyond a reasonable doubt, thereby authorizing imposition of the upper terms on counts 1 and 2. The victim’s credibility was a key issue, and by convicting defendant of all charges, it is obvious the jury found the victim credible. The victim’s “particular vulnerability” is indisputable. She was defendant’s daughter, a relationship of trust, and she lived in the same home under circumstances which allowed defendant almost unfettered access to her, so she was unable to avoid the abuse. The record also includes revealing testimony suggesting the victim was particularly vulnerable because she was left unprotected and abandoned by her mother, who may have suspected or detected the abuse long before it was reported to police. Although not substantial, the record does include some evidence on the extent of any bodily harm inflicted by defendant on the victim. The victim recalled one incident in which defendant attempted to penetrate her with his penis, but he stopped when she said it hurt. There was also testimony by an expert pediatrician who performed a vaginal examination of the victim and stated the examination was highly suggestive of sexual abuse.
There is also compelling evidence in the record of serious emotional injury, particularly in the victim’s impact statement, which was read to the court during defendant’s sentencing hearing. While the victim reported she and her sisters now have a better life, she stated the molestation by her father robbed her of her childhood. Although she now feels stronger, is doing well in school, has more friends, and sleeps better, she indicated she previously felt embarrassed and was unable to be open with people. She asked the court to make sure “he will never be around kids ever again” and to keep him in custody until her youngest sister is at least 18 years old.
In sum, we conclude the record does meet the reasonable doubt standard with respect to the factors of vulnerability, emotional injury, and seriousness. We therefore conclude any constitutional violation in imposing the upper terms on counts 1 and 2 was harmless beyond a reasonable doubt. As a result, we decline to reduce the sentence to the middle terms or to remand the matter to the trial court for resentencing.
4. Consecutive Terms.
Defendant also attacks the constitutionality of his sentence under the reasoning of Blakely and Cunningham, because the trial court imposed consecutive sentences based on facts which were not admitted or found true by a jury under the reasonable doubt standard. However, these cases did not address consecutive sentences, and Cunningham did not expressly overrule the holding of our Supreme Court in Black, supra, 35 Cal.4th at page 1262, that consecutive sentencing decisions are not affected by the United States Supreme Court decisions in Apprendi and Blakely. More recently, our Supreme Court flatly rejected this argument, holding the constitutional right to a jury trial is not implicated when a trial court imposes consecutive terms based on aggravating factors not found true by a jury. (People v. Black (2007) 41 Cal.4th 799, 806, 820-823.)
DISPOSITION
The judgment is affirmed.
We concur:
McKINSTER, J., KING, J.