Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. CRF07322, CRF06482
ROBIE, J.
In a bench trial in case No. CRF06482 (the registration case), defendant Raymond Willard McLaughlin was convicted of failure to register as a sex offender. Imposition of sentence was suspended and defendant was placed on probation for three years.
In case No. CRF07322 (the molestation case), a jury convicted defendant of sexual penetration of a child less than 14 years old and more than 10 years younger than defendant and two counts of lewd and lascivious acts with a child less than 14 years old (counts I, II, & III). The trial court found that he had a 1997 oral copulation conviction that is both a serious felony and a strike.
Defendant was sentenced in the molestation case to state prison for 25 years, consisting of 16 years (twice the upper term) for count II, four years (two-thirds the midterm) for count I, and five years for the prior serious felony. Sentence on count III was stayed pursuant to Penal Code section 654.
All further statutory references are to the Penal Code unless otherwise indicated.
At defendant’s request, the trial court terminated his probation in the registration case and sentenced him to state prison for 16 months to run concurrently with the sentence in the molestation case.
On appeal, defendant contends his sentence is unconstitutional under Blakely and Cunningham. We shall affirm the judgment.
Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403]; Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856].
Our statement of facts is limited to the molestation case.
Prior to the summer of 2006, 12-year-old J. G. lived with her grandmother in Woodland. For a few weeks that summer, J. G. stayed with her mother, E. G., in Marysville. J. G.’s two brothers and defendant, the boyfriend of E. G., also lived there. One evening during the stay, J. G. watched television in a bedroom with her brothers, her mother, and defendant. J. G. and E. G. fell asleep next to defendant. J. G. awoke when she felt a hand reach up under her baggy shirt. Defendant put his hand on J. G.’s right breast. She remained still and pretended to be asleep. He removed his hand from under her shirt, shook her, told her to wake up, and sent her to the living room couch where she customarily slept.
The next morning, E. G. went to a hospital because she did not feel well. Only defendant, J. G., and her brothers remained at the house. Defendant entered the living room where J. G. had been sleeping and lay down next to her on the couch. He put his arms around her as she watched television. He held her hand, “playing” with her fingers and hand. Then he kissed her fingers and put them in his mouth. Next he kissed her with an open mouth, putting his tongue in her mouth. He moved on top of her and continued to kiss her. Then he put his hand in her shorts and inserted a finger in her vagina. He stopped when J. G.’s brothers appeared. J. G. did not tell E. G. what had happened because she was scared. Defendant had told J. G. that “he would go away for a long time” if she disclosed what had happened. J. G. was concerned that if defendant went away, E. G. would “hate” her and she “wouldn’t be able to see [her] brothers again.”
J. G. resumed living with her grandmother and did not disclose what defendant had done to her. The grandmother noticed that J. G.’s behavior was different after she returned from her mother’s house. J. G. began experiencing stomach problems that caused her to throw up and to lose weight. She also suffered from insomnia. She saw doctors for these conditions. She did not want to attend school or softball practice. She was “really upset” and her best friends perceived that something was wrong. She disclosed the incident to her friends but told them not to reveal it to her grandmother. J. G.’s first school report card was “bad,” which prompted her to tell her grandmother that defendant had tried to kiss her. Eventually, J. G. told her grandmother everything that had occurred but asked her not to report it to police. J. G. later was persuaded that the incident had to be disclosed. The grandmother reported the incident to police.
E. G. testified that then-nine-year-old J. G. was “very angry” when defendant first moved into E. G.’s residence. At the time he moved in, E. G. had just left another relationship, and J. G. liked E. G.’s former partner.
E. G. remembered watching a movie in bed with defendant and J. G; however, she recalled that J. G.’s shirt was not baggy. The next morning, when E. G. went to the doctor, neighbor Scott Weems was at the house. E. G. did not recall telling an investigator that only defendant, J. G., and her two brothers were home when she returned from the doctor.
E. G. did not recall any time during J. G.’s visit that J. G. was alone with defendant. E. G. explained that they had friends from across the street who “were at our house from the time we got up until the time we went to bed every day.” E. G. was home every day, while defendant worked “swing shift” six days per week. E. G. did not notice a change in J. G., nor did J. G. disclose that defendant had touched her during her visit.
Later, after E. G. became aware of the allegations, she talked to J. G. about them. E. G. was angry and confronted defendant, who told her it had not happened.
Mary Ann Barr, an investigator with the Yuba County District Attorney’s Office, conducted a multi-disciplinary forensic interview of J. G. J. G. was “fairly calm,” but she was experiencing problems with her stomach and at times was “a little teary eyed.”
In the summer of 2006, Scott Weems lived on the other side of the trailer court from defendant. Defendant and Weems were friends. Weems visited defendant’s home “all the time.” It was Weems’s opinion that “[t]here was never a time where [defendant] was alone with” J. G. Weems never observed any inappropriate conduct between defendant and J. G.
DISCUSSION
Defendant contends the trial court violated his Sixth Amendment rights by sentencing him to the upper term on count II of the molestation case. Specifically, he claims that two of the factors the court relied on when imposing the upper term were not admitted by him or found beyond a reasonable doubt by a jury. We are not persuaded.
Defendant contends the issue is not forfeited, notwithstanding his failure to object to the lack of jury trial at sentencing. We agree.
At the sentencing hearing, defendant urged imposition of the low term or the middle term. The prosecutor argued that this was “an upper term case.”
Before formally announcing its sentence choice, the trial court “observ[ed] the following things: he has numerous prior convictions, felony grand theft in Idaho in 1994, felony burglary in Idaho in 1994. And then there was the offense in Yolo [C]ounty as noted by probation. He came home and found his girlfriend in bed with a 19 year old male, physically assaulted the male, made the male orally copulate him. And he sodomized the victim. Considering that conduct, and I’m considering also the fact that he has served two prior prison terms, Idaho in 1994 and the conduct in Yolo [C]ounty in 1997. And in this case he occupied a position of trust with the child. While not being married to the child’s mother, he is the father of the child’s two siblings to which she is very attached. And he advised her that while waiting for the child’s mother to leave the house to go to her appointment he utilized his position in the family to make it quite clear to her if she told her mother, the mother would be mad at her. And she would never see her brothers again. To a small child she had no one to turn to, and she internalized the stress of the conduct that had been committed by the defendant and suffered serious side effects that were only observed by a caring grandmother, noting that the mother did not appear to pick up on what had happened and did not protect her daughter from a registered sex offender in the home.”
After making these observations, the trial court stated: “So at this point in time I select the upper term on Count Two. I believe that is appropriate because of specifically the criminal history of the defendant and the fact that he has suffered several prior felony convictions. He suffered a serious sex offense, so I do not believe that he, because of his previous conduct, is a middle term or lower term candidate and because of his particular conduct in this case in victimizing a vulnerable child, someone who he was essentially the stepfather to. I don’t believe that middle or lower term would be appropriate, so I am imposing the upper term in Count Two of 16 years.”
The United States Supreme Court held in Cunningham that, under California’s determinate sentencing law, the middle term is the statutory maximum which a judge may impose solely based on the facts reflected in the jury verdict or admitted by the defendant. (Cunningham v. California, supra, 549 U.S. at p. ___ [166 L.Ed.2d at p. 862].)
“The California Legislature quickly responded to the Cunningham decision. Senate Bill No. 40 (2007–2008 Reg. Sess.) (Senate Bill 40) amended section 1170 in response to Cunningham’s suggestion that California could comply with the federal jury-trial constitutional guarantee while still retaining determinate sentencing, by allowing trial judges broad discretion in selecting a term within a statutory range, thereby eliminating the requirement of a judge-found factual finding to impose an upper term. [Citations.] Senate Bill 40 amended section 1170 so that (1) the middle term is no longer the presumptive term absent aggravating or mitigating facts found by the trial judge; and (2) a trial judge has the discretion to impose an upper, middle or lower term based on reasons he or she states. As amended, section 1170 now provides as pertinent: ‘When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court. . . . The court shall select the term which, in the court’s discretion, best serves the interests of justice. The court shall set forth on the record the reasons for imposing the term selected . . . .’ [Citation.] This amended version of section 1170 became effective on March 30, 2007. [Citation.]” (People v. Wilson (2008) 164 Cal.App.4th 988, 992.)
Here, the trial court sentenced defendant on February 21, 2008. The court stated its reasons for imposing the upper term as noted above. Defendant claims amended section 1170, subdivision (b), violates his Sixth Amendment rights because the court’s stated reasons are facts that have not been found true by a jury or proved beyond a reasonable doubt. The claim fails because the found facts do not expose defendant to a sentence that exceeds the amended statutory maximum. (Cunningham v. California, supra, 549 U.S. at p. ___ [166 L.Ed.2d at p. 862].)
Even under the previous version of section 1170, there was no error. Applying Cunningham, our Supreme Court held in People v. Black (2007) 41 Cal.4th 799 that “imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (Black,at p. 816, italics added.)
The recidivist finding in the present case, that the upper term is appropriate “because of specifically the criminal history of the defendant and the fact that he has suffered several prior felony convictions,” renders him eligible for the upper term. Thus, he “was not legally entitled to the middle term, and his Sixth Amendment right to jury trial was not violated by imposition of the upper term sentence.” (People v. Black, supra, 41 Cal.4th at p. 820.)
In a separate argument, defendant contends that Black and the companion case of People v. Sandoval (2007) 41 Cal.4th 825 “were wrongly decided.” As he acknowledges, Black and Sandoval are binding upon this court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
DISPOSITION
The judgment is affirmed.
We concur: NICHOLSON, Acting P.J., MORRISON, J.
Because “the jury trial right at issue in the present case is one that is guaranteed by the federal Constitution,” decisional law requires “an express waiver even in cases in which the circumstances make it apparent that all involved--the trial court, the prosecutor, defense counsel, and the defendant --assumed that the defendant had waived or intended to waive the right to a jury trial. [Citations.]” (People v. French (2008) 43 Cal.4th 36, 47.) In this case, defendant did not expressly waive his constitutional right to a jury trial on aggravating circumstances. Thus, he is entitled to complain about the lack of jury trial for the first time on appeal.