Opinion
NOT TO BE PUBLISHED
Humboldt County Super. Ct. No. CR030081
Jenkins, J.
Defendant Michael Robert Hiscox appeals from a judgment entered after he was resentenced on 11 counts of lewd and lascivious conduct with a child under the age of 14 years. He challenges his sentences on various grounds. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
We granted Hiscox’s request for judicial notice of the records on file in earlier proceedings: People v. Hiscox (2006) 136 Cal.App.4th 253, and In re Hiscox (A117993). The background facts are taken, in part, from those records.
The charges against Hiscox were based upon allegations that he sexually molested three children over the course of several years from about 1992 through 1996. The molestations occurred while Hiscox was living with the children and their mother and he was acting as a father figure for the children. In November of 2003, a jury convicted Hiscox of 11 counts of lewd and lascivious conduct with a child under the age of 14 years. (Pen. Code, § 288, subd. (a).) Each count included a finding of “substantial sexual conduct” under section 1203.066, subdivision (a)(8). The jury found the offenses involved multiple victims under sections 667.61 and 1203.066, subdivision (a)(7).
All further unspecified statutory references are to the Penal Code.
At the original sentencing, the court applied section 667.61 and ordered Hiscox to serve 11 consecutive terms of 15 years to life for an aggregate term of 165 years in state prison. In response to Hiscox’s initial appeal, we affirmed the convictions but vacated the sentences and directed the trial court to sentence him under the law in effect before November 30, 1994. (People v. Hiscox, supra, 136 Cal.App.4th at pp. 257-262.) Hiscox sought review of our decision in the California Supreme Court, which denied his petition on May 17, 2006, and the remittitur issued on June 21, 2006. Before the Supreme Court acted, the trial court resentenced Hiscox on May 4, 2006. On August 28, 2007, we granted Hiscox’s petition for a writ of habeas corpus on the ground that the trial court had prematurely resentenced Hiscox before it had regained jurisdiction of the case. We directed resentencing in accordance with the principles discussed in Cunningham v. California (2007) 549 U.S. 270, 127 S.Ct. 856 (Cunningham); People v. Black (2007) 41 Cal.4th 799 (Black), cert denied sub nom. Black v. California (Jan. 14, 2008, No. 07-6140) __ U.S. __ [128 S.Ct. 1063], and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval).
On October 25, 2007, the court informed the parties of its tentative decision to resentence Hiscox to “consecutive term of 28 years,” consisting of the aggravated term of eight years on one count and consecutive two-year terms on the remaining ten counts. The court noted that under the recently amended section 1170, effective March 30, 2007, the sentencing presumption in favor of the middle term had been eliminated and the court now had complete discretion to select the term that best served the interests of justice. The court explained that the aggravated term was appropriate as follows: “Mr. Hiscox took advantage of the trust given to him by the victims and their mother, and . . . Mr. Hiscox . . . had assumed a fatherly role with the victims before the crimes were committed.” Hiscox presented arguments as to why the court should impose the mitigated term. The trial prosecutor argued that the aggravated term was appropriate for the reasons stated by the court. After considering counsels’ arguments, the court imposed its previously announced tentative sentence: “The Court does find that the aggravated term is the appropriate one for Mr. Hiscox on count number one. [¶] And in that regard the Court finds that aggravating factors outweigh mitigating ones. The Court finds no factors in mitigation. While in aggravation we have Rule 4.421, subdivision (a)(11), Mr. Hiscox did assume a fatherly role with the three victims. And he did violate the trust of those three victims and their mother in gaining access to the victims. The court will impose the upper term of imprisonment of eight years on count number one. [¶] . . . As to counts two through eleven, as to each, . . . [Hiscox is] ordered to serve two years, this being one-third the midterm of six years for each of the additional violations of Penal Code section 288 [subd.] (a). This makes for a total consecutive term of 28 years. . . .” After imposing sentence, the court again asked counsel to address any other concerns. At that point, at the request of defense counsel, the court clarified that Hiscox’s lack of a prior criminal record was a mitigating factor, but that the aggravating factor regarding his violation of trust after assuming a fatherly role with the victims, “more than counter-balance[d]” the mitigating factor.
DISCUSSION
Hiscox challenges the sentences on various grounds. We conclude that Hiscox’s arguments do not warrant granting him the relief he requests of vacating the sentences and remand for resentencing.
Hiscox argues that the imposition of the aggravated term violated Cunningham, supra, 127 S.Ct. at p. 871, which precluded imposing an upper term based on judicially determined aggravating factors, and the Cunningham error cannot be deemed harmless beyond a reasonable doubt. However, as conceded by Hiscox, the trial court sentenced him pursuant to the amendments to section 1170 that became effective on March 30, 2007 (Stats. 2007, ch. 3, § 2), as it was required to do by the Supreme Court’s Sandoval decision. (Sandoval, supra, 41 Cal.4th at pp. 846-847, 851.) Under the amended sentencing statute, the trial court is required to specify reasons for its sentencing decisions and is to be guided by the criteria in the California Rules of Court including those rules that specify aggravating and mitigating circumstances. (Ibid.) But, the trial court is not required “to cite ‘facts’ that support its decision or to weigh aggravating and mitigating circumstances. (See § 1170, subd. (c), as amended by Stats. 2007, ch. 3, § 2; § 1170.3 as amended by Stats. 2007, ch. 3, § 4; compare former Cal. Rules of Court, rule 4.420 with rule 4.420 as amended May 23, 2007.)” (Sandoval, supra, 41 Cal.4th at p. 847; emphasis added.) The trial court’s decision is now subject to review for an abuse of discretion. (Ibid.)
Hiscox presents no argument that the trial court abused its discretion in imposing an aggravated term of eight years on count one under the revised sentencing statute. He recognizes that the trial court was bound to follow Sandoval’s directive that he was subject to sentencing under the revised statute after the matter was remanded for resentencing in 2007, and that we are also bound to follow Sandoval. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455). Sandoval also forecloses Hiscox’s constitutional challenges to the application of the amended sentence statute to his offenses. (Sandoval, supra, 41 Cal.4th at pp. 848-852, 853-857.) Because these constitutional issues are asserted for the purpose of further review, we do not address them.
Hiscox additionally contends that the imposition of consecutive terms violated the constitutional provisions of substantive due process and trial by jury as enunciated in Cunningham, supra, 549 U.S 270, Blakely v. Washington (2004) 542 U.S 296 (Blakely), and Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi). However, he acknowledges that this argument is foreclosed by Black, supra, 41 Cal.4th at pp. 799, 820-821, in which our Supreme Court held that the discretionary sentencing choice of concurrent or consecutive terms under section 669 does not implicate the constitutional rulings enunciated in Cunningham, Blakely, and Apprendi. Although the issue is currently pending before the United States Supreme Court, Hiscox correctly recognizes that we are bound by the ruling in Black. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.) Because this issue is asserted for the purpose of further review, we do not address it.
In State of Oregon v. Ice (2007) 343 Ore. 248, 266-267, a majority of the Oregon Supreme Court held that the trial court’s imposition of consecutive sentences based on its own factual findings violated the defendant’s constitutional rights as enunciated in Apprendi, supra, 530 U.S. 466, and Blakely, supra, 542 U.S. 296. On application of the People in that case, the United States Supreme Court granted a petition for writ of certiorari, in part, limited to the issue of whether the Sixth Amendment, as construed in Apprendi and Blakely, “ ‘requires that facts (other than prior convictions) necessary to imposing consecutive sentences be found by the jury or admitted by the defendant.’ ” (Oregon v. Ice (Mar. 17, 2008; No. 07-901) __ U.S. __ [128 S.Ct. 1657].)
Hiscox also contends that the trial court’s failure to articulate its reasons for imposing consecutive terms requires resentencing. In the absence of any affirmative indication to the contrary, we presume the court chose to impose consecutive terms after considering the criteria in California Rules of Court, rule 4.425(a). (See People v. Giminez (1975) 14 Cal.3d 68, 72.) Because Hiscox did not object to the omission of a statement of reasons before the trial court, he has forfeited appellate review. (People v. Scott (1994) 9 Cal.4th 331, 353 (Scott).) Hiscox does not contend that the imposition of consecutive terms was erroneous as a matter of law. Accordingly, we decline to excuse his failure to preserve the issue for the policy reasons stated in Scott, 9 Cal.4th at pp. 353-356.
As relevant to this case, California Rules of Court, rule 4.425(a), provides that consecutive terms may be imposed if “[t]he crimes and their objectives were predominantly independent of each other,” or “[t]he crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior.”
By an order of June 23, 2008, we denied Hiscox’s application to file a belated supplemental brief at the time he filed his reply brief. Out of caution, we asserted we would review the application and the proposed supplemental brief at this time to ascertain whether Hiscox sought to raise an issue of which we must take cognizance on this appeal. We have reviewed the application and proffered brief, and conclude that Hiscox has not presented any argument that we are required to consider on this appeal.
In his proposed supplemental brief, Hiscox argues that his trial counsel was ineffective because he failed to ask the court to consider certain mitigating factors before imposing the aggravated term and to articulate its reasons for imposing consecutive terms. “[T]he standards for extraordinary relief based on a claim of ineffective assistance of counsel are familiar and stringent.” (Scott, supra, 9 Cal.4th at pp. 356-357, fn. 18.) “[T]here is a ‘strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.’ [Citation]. Defendant’s burden is difficult to carry on direct appeal[.] . . . ‘ “Reviewing courts will reverse convictions [on direct appeal] on the ground of inadequate counsel only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for [his or her] act or omission.” ’ ” (People v. Lucas (1995) 12 Cal.4th 415, 437.) The record does not disclose trial counsel’s reasons for the omissions challenged by Hiscox. “ ‘On a silent record, as we have here, we will not assume that the defense counsel’s failure[s] . . . rendered his assistance ineffective. Any assertion that counsel was inadequate in this regard must be raised on habeas corpus.’ ” (People v. Cudjo (1993) 6 Cal.4th 585, 634.)
DISPOSITION
The judgment is affirmed.
We concur: McGuiness, P. J., Siggins, J.