Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, William C. Ryan, Judge, Los Angeles County Super. Ct. No. BA277639.
Katharine Eileen Greenbaum, 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, Robert F. Katz and Robert C. Schneider, Deputy Attorneys General, for Plaintiff and Respondent.
WILLHITE, Acting P.J.
Juan M. Martinez appeals from a judgment entered following a jury trial in which he was convicted of continuous sexual abuse, count 1 (Pen. Code, § 288.5, subd. (a)), three counts of forcible rape, counts 2 - 4 (Pen. Code, § 261, subd. (a)(2)); and committing a lewd act upon a child, count 5 (Pen. Code, § 288(a)) with the finding that he committed the offenses charged in counts 1 and 5 by the use of force, violence, duress, menace and fear of immediate and unlawful bodily injury within the meaning of Penal Code section 1203.066, subd. (a)(1). He was sentenced to the upper term on all counts, 16 years for count 1 and eight years each for counts 2 through 5 for a total of 48 years. He contends pursuant to Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham) reversal of his aggravated sentence and imposition of the midterm sentence are required. For reasons stated in the opinion, we affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
D. was 17 years old at the time of trial and testified that from her earliest memory when she was five years old, appellant, her father, was frequently drunk. Appellant would beat her if she did not obey him and often he would beat her mother. At the age of 11 or 12 when the family was living in a house on Clifton in Los Angeles, appellant raped D. While D.’s mother was out paying the rent, appellant pulled her into the bedroom, pulled up her nightgown and put his penis in her vagina. D. told him to stop and appellant covered her mouth. Appellant told D. he would kill her and her mother if D. told anyone about the incident. When D.’s mother returned, she asked why D. was crying and appellant answered that D. had “talked back” and he had hit her. D. did not tell her mother the truth because appellant had threatened to kill D. and her mother. From the age of 12 to just before her 14th birthday, D. estimated appellant raped her once a week. These sexual assaults continued approximately once a week until D. was about 16 years old. D.’s mother would not be home on these occasions. Sometimes she would be at the doctor or at the hospital.
When D. was approximately 14 or 15, she asked appellant to stop drinking because when he was drunk he would beat her and her mother. Appellant stopped drinking but the beatings continued. Appellant would beat D. with an extension cord or his tools and the beatings would leave marks on her legs. When she was 15 years old, appellant told her to have sex with him and she refused. The next day he hit her with a rope and she sustained an injury to her eye. When her teachers asked her what happened, she lied and said she had been in a fight with “some girl.” After awhile D. did not fight or physically resist appellant because if she did, he would beat her up the next day.
On the day the sexual assaults stopped, D., who was 16 years old, and the family went to a gas station. Appellant told D. to make him some coffee and was touching her face “in a sexual way.” When D. told appellant to stop and that she did not like him to touch her face, appellant got angry and pushed her. When D. entered the car, appellant hit her “in [her] shoulders” and said, “Watch what’s going to happen to your beautiful face.” D.’s mother and sister were in the car and they both were crying. When they arrived home, D., her mother and her sister got out of the car and entered their home and D. locked the door. D. believed appellant would not hit her anymore and that she could call the police. D.’s mother was frightened, however, and opened the door. D. then locked herself in the bathroom and, using a cordless phone, called the police. Using an electric saw, appellant started cutting down the door. D. then stabbed herself in the chest with a pair of scissors, thinking appellant would not do anything more and hung up the phone. When the 911 operator called back and asked what was wrong, D. said “nothing” because appellant was threatening her. Appellant told her, “I don’t know why you did it. I’m still going to get out anyways.” D. admitted using drugs between the ages of 14 and 16 to help her deal with the emotional pain she was suffering because of the things appellant did to her. D. also admitted that after appellant was arrested, she participated in a carjacking, which resulted in a camp placement for one year. D. testified she was able to say “no” to appellant on the last occasion because the week before, appellant had hit her with a shovel and she told her mother that this was the last time appellant was going to “put a hand on [her] and put a hand on [her mother].”
DISCUSSION
Appellant contends Cunningham, mandates reversal of his aggravated sentence and imposition of the middle term. We disagree.
At sentencing, the court addressed appellant and stated “as to Counts 2, 3 and 4, you were found guilty of a violation [of] Penal Code section 261(a)(1), rape, rape by force. [¶] For those crimes, you are sentenced as follows: [¶] As to Count 2, the Court having considered the mitigating and the aggravating factors and finding that the aggravating factors, to wit, the defendant’s attitude was very callous towards the victim. [¶] The victim was particularly vulnerable. It was his daughter, and the defendant attempted to dissuade the witness, the victim and the other witnesses. [¶] I will impose the high term on each count of eight years in any state prison, and because the crime required planning and sophistication and I believe that the defendant has a record of increasing serious actions, I’m imposing them consecutive to each other under Penal Code section 667.6(d). The offenses occurred on separate occasions but on the same victim. [¶] As to Count 1, a violation of Penal Code section 288.5, I, again, impose the high term of 16 years consecutive to Counts 2, 3 and 4, pursuant to Penal Code section 667.6(c). [¶] The defendant acted from a position of trust and confidence which permitted him to commit the crime. [¶] And, finally, as to Count 5, a violation of Penal Code section 288(a), I impose the high term of eight years consecutive to Counts 1, 2, 3 and 4, again, for the reasons previously expressed as to Counts 2, 3 and 4, the aggravating factors substantially outweighing the mitigating factors, and I find consecutive is appropriate for the reasons previously expressed to make a total aggregate term of 48 years in any state prison.”
In Cunningham, the United States Supreme Court concluded California’s determinate sentencing law, authorizing a judge to find the facts permitting an upper term sentence and to permit the finding based on a preponderance of the evidence, violated the rule of Apprendi v. New Jersey (2000) 530 U.S. 466, 490 and the Sixth Amendment to the United States Constitution. It also, however, reiterated that the fact of a prior conviction need not be submitted to a jury. (See Cunningham; Almendarez-Torres v. United States (1998) 523 U.S. 224, 239-247.) “The United States Supreme Court consistently has stated that the right to a jury trial does not apply to the fact of a prior conviction. [Citations.]” (People v. Black (2007) 41 Cal.4th 799, 818.) The prior conviction exception to the Apprendi rule has been construed broadly to apply to factors based on a defendant’s recidivism. (See People v. Black, supra, 41 Cal.4th at p. 819; People v. McGee (2006) 38 Cal.4th 682, 704; People v. Thomas (2001) 91 Cal.App.4th 212, 221-222.) Here, appellant concedes that among the factors the court cited to impose the upper term on each count was appellant’s “record of increasing serious actions.” This comment was a clear reference to appellant’s prior criminal record, and use of that factor did not violate his right to a trial by jury or proof of the fact beyond a reasonable doubt. (See People v. Yim (2007) 152 Cal.App.4th 366, 371.) Further, under California law, the court may rely on the same aggravating factor to impose more than one upper term. (People v. Williams (1984) 157 Cal.App.3d 145, 156.)
The probation report reflects that in 1994 appellant was convicted of inflicting corporal injury on a spouse/cohabitant in violation of Penal Code section 273.5, subdivision (a) and placed on two years’ probation. In 1995, he was convicted of driving under the influence of an alcoholic beverage and/or drug in violation of Vehicle Code section 23152, subdivision (a) and placed on three years’ probation. In 1996, probation was revoked and reinstated. In 2000, he was convicted of reckless driving in violation of Vehicle Code section 23103 and placed on two years’ probation. In 2001, he was convicted of driving a vehicle with .08 percent or more, by weight, of alcohol in his blood in violation of Vehicle Code section 23152, subdivision (b) and placed on three years’ probation.
“[I]f one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not ‘legally entitled’ to the middle term sentence, and the upper term sentence is the ‘statutory maximum.’” (People v. Black, supra, 41 Cal.4th at p. 813, fn. omitted.) Thus, “as long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, 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.” (People v. Black, supra, 41 Cal.4th at p. 812.) Here, as the trial court relied upon a factor related to appellant’s recidivism to justify the upper sentence on each count, we need not consider whether reliance on other factors was error. “[T]here is no Sixth Amendment error in a case in which one or more aggravating circumstances have been established in accordance with Sixth Amendment requirements.” (People v. Sandoval (2007) 41 Cal.4th 825, 838; see also People v. Black, supra, 41 Cal.4th at p. 813.)
Blakely v. Washington (2004) 542 U.S. 296.
Contrary to respondent’s claim, appellant did not forfeit his claim. At the time of sentencing on June 29, 2006, the trial court was required to follow People v. Black (2005) 35 Cal.4th 1238, and it would have been futile to assert a Blakely challenge. (See People v. Sandoval, supra, 41 Cal.4th 825, 837.)
DISPOSITION
The judgment is affirmed.
We concur: MANELLA, J., SUZUKAWA, J.