Opinion
NOT DESIGNATED FOR PUBLICATION
Super. Ct. No. 04F05545
NICHOLSON , Acting P.J.
A jury convicted defendant Pablo China Valle of six counts of lewd conduct upon a child under the age of 14 years (Pen. Code, § 288, subd. (a); undesignated section references are to this code) and two counts of kidnapping for the purpose of child molestation (§ 207, subd. (b)). In connection with the lewd counts, the jury found that defendant kidnapped the victim, increasing the risk inherent in the underlying offense (§ 667.61, subd. (d)(2)). For purposes of sentencing, the jury found in aggravation: the victim was particularly vulnerable and the manner in which defendant carried out the offenses indicated planning or sophistication. In bifurcated proceedings, the jury found not true the aggravating factor that defendant engaged in violent conduct, to wit, sodomy, indicating a serious danger to society.
Sentenced to state prison for an aggregate term of 41 years to life, defendant appeals, contending (1) the trial court prejudicially erred in instructing the jury on the aggravating factor that the manner in which defendant carried out the offenses indicated planning or sophistication and (2) the imposition of the upper term and consecutive sentences contravenes Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely). We affirm the judgment.
FACTS
In view of defendant’s contentions on appeal, we need not recount the underlying facts in detail. Suffice to say that defendant befriended an eight-year-old boy at a neighborhood park, letting him play with his basketball. On a few occasions, defendant drove the boy to secluded areas where defendant molested him in the car. Defendant told him not to tell. Defendant bought the boy tennis shoes and gave him money.
DISCUSSION
I
Prior to trial, the United States Supreme Court decided Blakely. The prosecutor gave written notice to the court and to defendant that she planned to seek a jury determination of three factors in aggravation for purposes of sentencing, that is, the victim was particularly vulnerable, the offenses involved planning and sophistication and defendant’s conduct demonstrated that he was a serious danger to society. Defense counsel sought bifurcation of all factors. The court bifurcated only one from the guilt phase of the trial, that is, whether defendant posed a serious danger to society.
With respect to planning/sophistication, the trial court instructed the jury as follows: “If you find the defendant guilty of one or more of the crimes charged in Counts 1 through 8, violations of Penal Code section 288(a) and violations of Penal Code section 207(b), and/or one or more of the lesser included felonies thereto, you must then make an additional finding. [¶] Specifically, you must determine if in the commission of the crime or crimes, the manner in which the defendant carried out the crime or crimes, indicates planning, sophistication, or professionalism. [¶] The People have the burden of proving the truth of this allegation beyond a reasonable doubt. If you have a reasonable doubt that it is true, you must find it to be not true. [¶] Include a special finding on that question in your verdict, using a form that will be supplied for that purpose.” The jury found true that the victim was particularly vulnerable and that the crimes indicated planning, sophistication or professionalism.
After the verdict and prior to sentencing, the California Supreme Court decided People v. Black (2005) 35 Cal.4th 1238 (Black I). In imposing the upper term of eight years on count two, the trial court used the victim vulnerability aggravating factor found by the jury to be true. In imposing consecutive one-third the midterm or two years for counts three through six, the trial court used the planning/sophistication aggravating factor found by the jury to be true and the trial court found that the offenses were all crimes of violence.
Defendant contends the trial court’s instruction on the planning/sophistication factor was erroneous in that it omitted language informing the jury that in order to find the factor true, it had to find the level of planning and sophistication, when compared to other ways in which such a crime could be committed, was distinctively worse than the ordinary, in accordance with case law interpreting such factor. (People v. Charron (1987) 193 Cal.App.3d 981, 994; People v. Moreno (1982) 128 Cal.App.3d 103, 110.)
As the Attorney General responds, defendant’s failure to seek clarification or amplification of the instruction, which correctly recited the language of California Rules of Court, rule 4.421(a)(8), bars review on appeal. (People v. Lawley (2002) 27 Cal.4th 102, 160-161; People v. Beeler (1995) 9 Cal.4th 953, 983.)
In any event, any instructional error was harmless. (People v. Sengpadychith (2001) 26 Cal.4th 316, 326; People v. Watson (1956) 46 Cal.2d 818, 836.) The planning/sophistication aggravating factor is amply supported by the evidence adduced at trial. Defendant lulled the victim into a false sense of trust, allowing him to use his basketball prior to molesting him. (See People v. Jones (1992) 10 Cal.App.4th 1566, 1576-1577.) This establishes planning beyond that required to molest the victim. Defendant has failed to demonstrate that it is reasonably probable, but for the instructional error, the jury would have rejected the planning/sophistication aggravating factor.
II
Defendant contends the trial court erroneously imposed aggravated and consecutive terms based upon facts not submitted to the jury and proved beyond a reasonable doubt, contravening Blakely, supra, 542 U.S. 296 [159 L.Ed.2d 403]. Not so. The jury did find two aggravating factors to be true beyond a reasonable doubt -- victim vulnerability which the trial court cited to impose the upper term on count two and planning/sophistication which the trial court cited, along with its own finding that the crimes involved violence, to impose consecutive sentences for counts three through six.
Defendant challenges the trial court’s reliance upon the aggravating factor that the crimes involved violence despite the jury’s finding that defendant had not engaged in violent conduct. Defendant argues that the trial court’s finding was inconsistent with the jury’s finding, relying upon People v. Taylor (2004) 118 Cal.App.4th 11 (Taylor).
Taylor is inapplicable. The jury convicted the defendant of battery with serious bodily injury but found not true three great bodily injury allegations. Notwithstanding, the trial court found that the defendant’s current offense was a serious felony as required in order to impose enhancements for prior serious felony convictions the defendant had admitted under section 667, subdivision (a)(1). The appellate court determined that the trial court erred in concluding that the defendant’s current offense was a serious felony which qualified as such only if great bodily injury had been inflicted. The trial court substituted its own determination for that of the jury. (Taylor, supra, 118 Cal.App.4th at pp. 17-18, 28-30.)
Here, the jury concluded defendant had not engaged in violent conduct, to wit, sodomy, indicating he is a danger to society. The trial court determined the crimes involved violence related only to the child victim, and not to society at large or in the future. The trial court’s and the jury’s findings are not inconsistent.
In any event, a jury determination is not required for consecutive sentencing. Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham) recently overruled Black I, in part, and held that a defendant is entitled to a jury trial and proof beyond a reasonable doubt on a fact, other than a prior conviction, found to impose an upper term. (Cunningham, supra, 549 U.S. at p. ___ [166 L.Ed.2d at p. 864].)
“While there is a statutory presumption in favor of the middle term as the sentence for an offense [citation], there is no comparable statutory presumption in favor of concurrent rather than consecutive sentences for multiple offenses except where consecutive sentencing is statutorily required. The trial court is required to determine whether a sentence shall be consecutive or concurrent but is not required to presume in favor of concurrent sentencing.” (People v. Reeder (1984) 152 Cal.App.3d 900, 923.) A defendant who is convicted of more than one offense may receive a consecutive sentence in the court’s discretion. A defendant does not have a legal right to concurrent sentencing which “makes all the difference insofar as judicial impingement upon the traditional role of the jury is concerned.” (Blakely, supra, 542 U.S. at p. 309.)
Black I held that the factfinding requirement for imposition of consecutive sentences is not subject to Blakely. (Black I, supra, 35 Cal.4th at pp. 1261-1264.) Cunningham did not overrule this holding in Black I. People v. Black (July 19, 2007, S126182) ___ Cal.4th ___ [2007 Cal. Lexis 7604] (Black II) reaffirmed its prior determination, noting that “Cunningham does not call into question the conclusion we previously reached regarding consecutive sentences.” (Black II, supra, ___ Cal.4th at p. ___ [2007 Cal. Lexis 7604, at p. *47].) We must follow Black I and Black II. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
DISPOSITION
The judgment is affirmed.
We concur:
BUTZ, J.
CANTIL-SAKAUYE, J.