Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Alameda County Super. Ct. No. H41135
Swager, J.
Defendant was convicted following a jury trial of four counts of lewd and lascivious conduct with a child under the age of 14 (Pen. Code, § 288, subd. (a)), and one count of disobeying a court order (§166, subd. (a)(4)). He was sentenced to an aggregate term of 13 years in state prison. He was also ordered to pay a restitution fine in the amount of $2,400 (§ 1202.4, subd. (b)), and a $2,800 parole revocation fine (§ 1202.45), suspended unless parole is revoked.
All further statutory references are to the Penal Code.
In this appeal defendant claims that the trial court violated his due process and jury trial rights under Blakely v. Washington (2004) 542 U.S. 296 (Blakely), and Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856, 127 S.Ct. 856] (Cunningham), by imposing consecutive terms for the multiple convictions, imposed an unauthorized one-year consecutive term for the misdemeanor conviction for disobeying a court order, and imposed an excessive parole revocation fine. We conclude that the imposition of consecutive terms did not violate Blakely and Cunningham, but the one-year consecutive term for the misdemeanor conviction was error, and the amount of the parole revocation fine must be modified. We therefore affirm the judgment as modified.
This appeal challenges only the sentence imposed upon defendant, so our recitation of facts will be abbreviated accordingly.
In late November or December of 2005, while defendant lived in the garage of the residence of his aunt and grandmother in Newark, he became acquainted with the victim Elise and her mother Ronda, who lived a few houses away on the same street. Elise was then 12 years old, and in the seventh grade; defendant was 37 years old. In December of 2005, about a month after Elise met defendant, she began to regularly “sneak out” through her bedroom window and stay away “all night” with him. Elise testified that her “friendship” with defendant evolved into a “boyfriend and girlfriend relationship” by Christmas of 2005. Neighbors observed Elise at defendant’s garage residence essentially every day. She also “cut school” often to visit defendant.
For purposes of confidentiality and convenience we will refer to the victim and her mother by their first names only.
In Elise’s testimony she recounted acts that constituted the charged offenses. She testified that one day when she and defendant were “at his house” he told her that “he wanted to be in a relationship” with her. They then kissed with their arms around each other before she left. Weeks later, again in the garage, defendant touched her breasts and vagina while her hands were “on his penis.” Thereafter, they saw each other nearly every day in his garage, and were “physical” a “couple times a week,” or “maybe 50 times” in total. In January or February of 2006, defendant began to ask Elise to “have sex” with him every time they met. When Elise replied that she “didn’t want to,” defendant seemed “kind of mad” and “disappointed” with her. Defendant also told Elise, “when you turn 18 I want to marry you,” and she agreed.
About 8:20 p.m. on February 6, 2006, a California Highway Patrol officer discovered defendant in his parked car with Elise at the Ravenswood turnout area of the Dumbarton Bridge. Defendant told the officer “they were sitting there talking.” The officer noticed that Elise, who said she was 13 years old, had a “purple mark” on her neck that “appeared to be a hickey.” Elise said that “a boyfriend” was responsible for the hickey, and defendant was just a “family friend.” Although a restraining order was issued on February 17, 2006, that prohibited defendant from having personal, telephonic or written contact with Elise, they continued to see each other.
Elise acknowledged that by April or May, she snuck out of her grandmother’s house essentially every evening through her bedroom window to “spend the night” with defendant in his garage. She would typically leave the garage around 9:30 or 10:00 in the morning. By April, Elise “quit going” to school and stayed with defendant during the day.
Defendant testified in his defense that he and Elise were friends, but did not “become boyfriend girlfriend.” Defendant admitted that he once gave Elise a “friendship hug” and kiss, but denied that he had other sexual contact with her or gave her “that hickey” noticed by the Highway Patrol officer. Defendant testified that Elise “wanted to be in a boyfriend girlfriend relationship” with him, but he declined. Despite objections from family and friends, and the restraining order, however, defendant admitted that he continued to contact Elise and allow her to visit him “in a friendship” relationship.
DISCUSSION
I. The Imposition of Consecutive Sentences for the Subordinate Terms.
Defendant argues that the imposition of consecutive sentences for three of the convictions for lewd and lascivious conduct with a child under the age of 14 (§ 288, subd. (a)), and one count of disobeying a court order (§166, subd. (a)(4)) “based upon facts that were neither pled nor determined by a jury beyond a reasonable doubt” violated his “rights under the Sixth and Fourteenth amendments” as articulated in Blakely and Cunningham. The definitive resolution to defendant’s contention is found in the California Supreme Court’s opinion in People v. Black (2007) 41 Cal.4th 799 (Black II). The court in Black II reaffirmed its conclusion that imposition of consecutive sentences “does not violate a defendant’s Sixth Amendment right to [a] jury trial” under Blakely. (Black II, supra, at p. 821.) We are at present bound by the ruling in Black II, supra, at page 823, that “defendant’s constitutional right to jury trial was not violated by the trial court’s imposition of consecutive sentences” on all four counts. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455; People v. Robertson (2003) 113 Cal.App.4th 389, 393.)
II. The Imposition of a One-Year Consecutive Sentence for the Misdemeanor Conviction .
Defendant also claims that the trial court erred by imposing a one-year consecutive sentence for the misdemeanor conviction of disobeying a court order. He maintains that the sentence is “unconstitutional and unauthorized because the statutory maximum is six months in the county jail.” He points out that “a violation of section 166, subdivision (a)(4) is punishable by a maximum term of six months in the county jail,” unless “additional facts or elements” are pled and proved “to a jury beyond a reasonable doubt,” which did not occur here. He adds that “misdemeanor sentences imposed to run consecutive to felony sentences do not merge into one aggregate sentence,” as was done by the trial court to impose an aggregate 13-year state prison sentence. He asks that we vacate the sentence and direct the trial court on remand to “impose two proper sentences,” rather than a single state prison term.
The Attorney General concedes that the imposition of a one-year consecutive term for the misdemeanor conviction as part of the aggregate state prison sentence was error, and we agree. As defendant asserts, “Under Penal Code section 166, subdivision (a)(4), ‘[w]illful disobedience of any . . . order lawfully issued by any court’ is a form of contempt that is criminally punishable as a misdemeanor by jail sentence of up to six months and/or fine of up to $1,000. (See Pen. Code, § 19.)” (Garcia v. McCutchen (1997) 16 Cal.4th 469, 480, italics added.) The six-month consecutive sentence for the misdemeanor offense is also separately punishable by imprisonment in the county jail, and cannot be ordered to be served as part of a continuous term in state prison. (See In re Eric J. (1979) 25 Cal.3d 522, 537–538; People v. Erdelen (1996) 46 Cal.App.4th 86, 92; In re Kubler (1975) 53 Cal.App.3d 799, 807.) The abstract of judgment must be amended to correct the unauthorized sentence.
III. The Parole Revocation Restitution Fine .
Defendant’s final contention is that the amount of the parole revocation restitution fine imposed upon him is also unauthorized, and again the Attorney General concedes the error. The trial court imposed a restitution fine under section 1202.4 of $2,400, and a parole revocation restitution fine under section 1202.45 of $2,800. Section 1202.45 specifies, however, that “the parole revocation fine must be ‘the same amount as’ the restitution fine. (§ 1202.45.)” (People v. Marichalar (2003) 144 Cal.App.4th 1331, 1337.)
DISPOSITION
The amount of the parole revocation fine is reduced from $2,800 to $2,400. The sentence imposed upon defendant is also modified to reflect a total state prison term of 12 years, and a separate six-month consecutive county jail term. The clerk of the superior court is directed to amend the abstract of judgment accordingly and forward a certified copy to the Department of Corrections. In all other respects the judgment is affirmed.
We concur: Marchiano, P. J., Margulies, J.