Opinion
NOT TO BE PUBLISHED
San Francisco City & County Super. Ct. No. 179567
Ruvolo, P. J.
Appellant Collie George Downer appeals from a judgment following a resentencing hearing ordered under Cunningham v. California (2007) 549 U.S. 270 (Cunningham), People v. Black (2007) 41 Cal.4th 799 (Black II), and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval). We reject his claim that the trial court erred when it again imposed the upper term on the principal term and consecutive terms.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellant was tried before a jury and convicted of committing multiple forcible sex acts against a 16-year-old girl (counts 1-3; Pen. Code, § 289, subd. (a)(1)), three counts of forcible oral copulation (counts 4-6; § 288a, subd. (c)); two counts of forcible rape (counts 7-8; § 261, subd. (a)(2)); and two counts of unlawful sexual intercourse with a minor (counts 9-10; § 261.5, subd. (c)). The trial court selected count 7 as the principal term and imposed the upper term of eight years. It also imposed consecutive upper terms of eight years each on counts 1, 2, 6, and 8, and concurrent terms in counts 3, 4, and 5; the court stayed execution of sentence in counts 9 and 10.
All subsequent undesignated statutory references are to the Penal Code.
In his first appeal (People v. Downer (Oct. 31, 2005, A106919 [nonpub. opn.] [Downer I]), appellant contended the judicial imposition of the upper term for all eight counts violated his jury trial rights by imposing the upper term based on factors that had not been found true by a jury or admitted by him. We rejected this claim, noting that we were bound by the California Supreme Court’s decision in People v. Black (2005) 35 Cal.4th 1238 (Black I), which held that Blakely v. Washington (2004) 542 U.S. 296 did not apply to the imposition of an upper term. (Downer I at p. 18.)
We take judicial notice our prior opinion in Downer I. (Evid. Code, § 452, subd. (d).)
The United States Supreme Court granted certiorari, and it subsequently transferred the case back to us for reconsideration in light of its intervening decision in Cunningham, supra, 549 U.S. 270. While the case was still pending before us on remand, the California Supreme Court issued its decisions in Black II, supra, 41 Cal.4th 799, and Sandoval, supra, 41 Cal.4th 825. On reconsideration, we concluded that the appellant’s challenge to the imposition of the upper term had merit and remanded for resentencing “in accordance with “Cunningham, Black [II], and Sandoval.” (People v. Downer (Nov. 13, 2007, A106919 [nonpub. opn.] [Downer II] at pp. 6-7.)
The trial court imposed the same sentence on remand. The court cited two reasons for imposing the upper terms; the victim was under the age of 18 and appellant blamed the victim. As to the victim’s age, the trial court noted that the jury found appellant guilty in counts 9 and 10, which required a finding that the victim was a minor. As for the second reason, the trial court stated that appellant “attempted to attribute the crime to the victim’s conduct and to her persistence, which was not something that convinced the jury.” (Original italics.)
II. DISCUSSION
Appellant appeals again, and claims that the trial court’s imposition of the upper terms without a jury trial on the second factor (i.e., that he tried to blame the victim) violated his constitutional rights. Appellant acknowledges that the resentencing proceedings conducted by the trial court complied with the holdings in Black II and Sandoval, to the extent that the upper terms were based on the victim’s minor status which was found true by the jury in its verdict on counts 9 and 10. Rather, his arguments on appeal are directed at establishing that Black II and Sandoval were wrongly decided, insofar as they hold that the imposition of an upper term is constitutionally permissible so long as one legally sufficient aggravating circumstance has been found to exist by the jury. (Black II, supra, 41 Cal.4th at p. 816; Sandoval, supra, 41 Cal.4th at p. 839.) Nevertheless, appellant accepts that were are bound by both of these decisions. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
As we are bound by Black II and Sandoval, it would serve no purpose for us to analyze the merits of appellant’s arguments. Black II and Sandoval require us to reject appellant’s contentions.
In any event, we note that, by its multiple guilty verdicts, the jury implicitly rejected the defense theory that appellant’s sexual offenses were the result of the 16-year-old victim’s conduct.
III. DISPOSITION
The judgment is affirmed.
We concur: Reardon, J., Sepulveda, J.