Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Fresno County. William A. Stone, Judge. (Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.), Super. Ct. No. 4908127-4
Robert L. S. Angres, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Louis M. Vasquez, Supervising Deputy Attorney General, Brian Alvarez and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Ardaiz, P.J.
Appellant David Allen Melvin stands convicted, following a jury trial, of forcible sexual penetration (Pen. Code, § 289, subd. (a)(1); count 1) and forcible oral copulation (§ 288a, subd. (c)(2); count 2). Sentenced to a total term of eight years in prison, he now appeals, raising various claims of trial and sentencing error. For the reasons that follow, we will affirm.
All statutory references are to the Penal Code unless otherwise stated.
Appellant’s first trial ended in a mistrial when the jury deadlocked on all charges. Allegations under the one strike law (§ 667.61, subds. (a), (c), (d)(1)) and three strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) were dismissed, on the prosecutor’s motion, following appellant’s conviction.
FACTS
I
PROSECUTION EVIDENCE
Virginia, who was in her 50’s, suffered from grand mal and petit mal epileptic seizures, rheumatoid arthritis, and a hip condition. Dr. Reinfurt, a psychologist with specialized training in neuropsychology, administered IQ and memory tests to Virginia and determined that her intellectual functioning was within the borderline range – not average, but not mentally retarded. Her overall processing was slow.
Due to privacy considerations, we refer to Virginia by her first name, as was done at trial. No disrespect is intended.
At the time of events, Virginia had lived in a retirement home in Kingsburg for years and had become very close friends with Marsha Melvin, appellant’s wife. The two women habitually got together every Monday at the Melvin residence to exercise while watching Richard Simmons tapes. Appellant was present and would help Virginia do the exercises.
At some point in November 2004, appellant telephoned Virginia and said he was coming over to fix her computer. He had helped her with her computer in the past, and she had called him earlier and asked if he would come, although she could not recall whether she asked him the same day as he came over. Once at her apartment, appellant worked on the computer and showed her some things she could do on it. He then asked if he could use the bathroom. When he came out, he saw the mirror on the dresser in the bedroom and said she could do her exercises there. He suggested the two of them could do exercises; Virginia said okay, as it was not unusual for them to do exercises together, although they had done so at her apartment only a couple of times before, and then in the living room.
When Virginia exercised with appellant and Mrs. Melvin at their home, they used a mirror.
Virginia lay down on the bed and did some exercises, but then appellant, who was at the foot of the bed, pulled off her slacks and nylons. Virginia said no and asked him what he was doing, but he just kept going. She knew why he was doing it, but she “just froze” and could not do anything to stop him.
Appellant kissed Virginia on the cheek, then removed her panties and said he had brought oil from home. He pushed up her bra and shirt, kissed her breasts, and inserted a finger in her vagina. There was oil on his finger, and some of the oil spilled on her bed. She told him no, but he did not stop. “If [she] could have, [she] would have pushed him away and gotten him out of there somehow.” She was scared.
When appellant stopped, he asked Virginia to move to the side of the bed, close to the edge, and to lift and hold her legs. She did so, as she did not know she could say no. She held her legs up in the air, whereupon he started licking her vagina. Horrified, she told him no several times and asked what he was going to tell his wife. He said not to tell Marsha; she would kill him.
On cross-examination, Virginia testified that, while she was doing an exercise, appellant had her remove her slacks and nylons, telling her she would be able to work better. Still later on cross-examination, she testified that her clothes were already off when she was doing the exercises. She then stated that after she got on the bed, appellant showed her some exercises, then removed the rest of her clothes, pushed up her shirt and bra, and used the oil with his finger. There was also testimony suggesting that at some point, Virginia put her clothes back on and went into the kitchen, but then returned to the bedroom when appellant asked why she had stopped trusting him. After she went into the bedroom the second time, “he was on [her].” Virginia, who appeared to become quite confused during cross-examination, testified that she told the police everything she could remember.
As it was getting close to the time Virginia had to go to lunch, appellant said it was lunchtime and stopped. She then asked him to trim her toenails, as she could not reach them and did not want them to rip her nylons when she got dressed. Appellant cut her toenails for her, then he went home and Virginia went to eat. At lunch, she told a couple of the ladies who sat at her table what had happened. She told appellant’s wife the next day. Although Virginia never contacted the police, she talked to them at her home a few days later, not long after she reported the events to her mother. Virginia did not contact the police on the day of the assault because Mrs. Melvin was a very close friend of hers, and she did not want to lose that friendship. Virginia denied having an affair with appellant or agreeing to any sexual contact with him, although she admitted they had tried to kiss on one previous occasion.
Kingsburg Police Officer Quiroz interviewed Virginia on November 13, 2004. Virginia, who appeared to be upset, said the incident had occurred three days earlier in her bedroom, and that she had not slept in there since it happened. Quiroz found a green sheet on the bed that had a large, circular, shiny spot on it. The spot and the whole room smelled like baby oil. During this interview, Quiroz asked whether appellant had threatened Virginia. She said no.
After the initial interview, Quiroz had Virginia come to the police department the next day for a second interview, which was videotaped. In this interview, Virginia said she had not asked appellant to come and fix the computer that day. When he first set up her computer, he told her that he would have to come back because something would not connect, and he told her to call to remind him, but she never did. When he came over this time, he downloaded a computer program and then showed her how to do various things with it. He then asked to use her bathroom. Virginia related that she was in the living room, but then he called her in to where the mirror was and said she could watch herself when she did her exercises. She did some exercises, then walked into the kitchen to make coffee. He again called her in and said she could really see herself doing the exercises. He wanted her to do an exercise, and the next she knew, she was on the bed. Virginia related that appellant got on the bed. Thinking he was going to fall off, she grabbed, not with both arms around him, but so he could scoot over a little. Then he was kissing her before she knew what was going on, and was just “at [her]” before she knew what was happening. He went down toward the end of the bed and was massaging her breast area. He had pushed up her bra and was kissing her nipples. She felt she could not leave. She did not know what to do. He then removed her slacks and rubbed her, then removed her nylons and said he could not feel the places he needed to rub. She was frozen with fear. When he pulled down her clothing, she thought she would just pull her pants back on and leave. He told her no, that he did not want her dressed. She asked him what he was going to tell his wife. He said that if this got back to her, he would be in trouble. He pressed “extra hard” on Virginia after saying, “If this gets back to her.”
A redacted videotape was played for the jury.
Virginia related that appellant said he had brought some baby oil, and he rubbed some on her. She told him no several times. He tried unsuccessfully to relax her and inserted his finger into her. At one point, he asked her to turn over and she did, but he spilled the baby oil. He then moved to the side of the bed and had Virginia lift her legs in the air and hold them with her hands. This was supposedly an exercise, but then he started licking her genitals. When she raised her head, he told her to put her head down, that she did not need to see. After, he was going to dress her, but he noticed that her toenails needed clipping. When she said it was hard for her to clip them, he got onto the bed and clipped them for her. Then he finished dressing her and he left.
II
DEFENSE EVIDENCE
Appellant’s wife, Marsha Melvin, had known Virginia since high school, and they had been close friends since 1990. On November 10, 2004, Virginia related to Mrs. Melvin that she and appellant had been touching and kissing for a year. Virginia said that she had asked him to come over to fix her computer on November 9; he had done so, then they had gone into the bedroom and he had pulled down her clothes and rubbed her. She had told him no, then gotten up and gotten dressed. Mrs. Melvin suggested that she go over and hide in Virginia’s closet, then Virginia could call appellant to come over and Mrs. Melvin could see what happened. Virginia did not want to do that.
Dr. Cole had been Virginia’s physician for approximately six to eight years. Although he never tested Virginia’s IQ, Cole opined that it and her ability to function in a cognitive way were probably normal.
DISCUSSION
I
JURY SELECTION ISSUES
Appellant challenges the trial court’s denial of his Batson-Wheeler motion, and its seating of a juror against whom the prosecutor exercised a peremptory challenge.
Batson v. Kentucky (1986) 476 U.S. 79 (Batson); People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler).
“The purpose of peremptory challenges is to allow a party to exclude prospective jurors who the party believes may be consciously or unconsciously biased against him or her. [Citation.]” (People v. Jackson (1992) 10 Cal.App.4th 13, 17-18.) Peremptory challenges may properly be used to remove jurors believed to entertain specific bias, i.e., bias regarding the particular case on trial or the parties or witnesses thereto. (Wheeler, supra, 22 Cal.3d at p. 274.) However, “‘[a] prosecutor’s use of peremptory challenges to strike prospective jurors on the basis of group bias – that is, bias against “members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds” – violates the right of a criminal defendant to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution. [Citations.] Such a practice also violates the defendant’s right to equal protection under the Fourteenth Amendment to the United States Constitution. [Citations.]’ [Citation.]” (People v. Bell (2007) 40 Cal.4th 582, 596; see Batson, supra, 476 U.S. at p. 88; Wheeler, supra, 22 Cal.3d at pp. 276-277.)
“The United States Supreme Court has recently reaffirmed that Batson states the procedure and standard to be used by trial courts when motions challenging peremptory strikes are made. ‘First, the defendant must make out a prima facie case “by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.” [Citations.] Second, once the defendant has made out a prima facie case, the “burden shifts to the State to explain adequately the racial exclusion” by offering permissible race-neutral justifications for the strikes. [Citations.] Third, “[i]f a race-neutral explanation is tendered, the trial court must then decide … whether the opponent of the strike has proved purposeful racial discrimination.” [Citation.]’ [Citation.]” (People v. Avila (2006) 38 Cal.4th 491, 541, quoting Johnson v. California (2005) 545 U.S. 162, 168 (Johnson).) The California Supreme Court has “endorsed the same three-part structure of proof for state constitutional claims. [Citations.]” (People v. Bell, supra, 40 Cal.4th at p. 596; Wheeler, supra, 22 Cal.3d at pp. 280-282.) With these principles in mind, we turn to the individual motions.
A. Prospective Juror T.B.
When prospective juror T.B. was first called to the jury box, he answered a list of questions asked of all prospective jurors. He related that he had lived in Fresno for 25 years, owned a business, had a wife who was a bus driver, had two years of college, and spent his leisure time playing golf. He further related that he had served on a jury about 10 years earlier in a criminal case; the jury did not reach a verdict, and the experience was negative. T.B. further stated that he had no acquaintances in law enforcement and that no one close to him had been the victim of a crime. He subsequently called to the court’s attention that he had not been able to see the witness list earlier, but in fact he had previously worked with one of the police officers on the list and “[p]ossibly” would be more inclined to believe that witness because of their past relationship.
The prosecutor subsequently turned to the subject of T.B.’s prior jury experience. This ensued:
“[MS. LANDAU, prosecutor:] If you don’t mind my asking, Mr. [B.], what was negative about your jury experience, just the fact they didn’t reach a verdict?
“[T.B.]: Yeah, just all of the – just what happened between closed doors in the jury room. All the arguing, and the bickering, and the people trying to change your mind even though you’re steadfast in what you believe. Didn’t shake me but shook some other people in the room. That was frustrating.
“MS. LANDAU: Do you mind if I ask what kind of case it was?
“[T.B.]: It was simple burglary. That was it. It was a burglary, house burglary.”
Later, the prosecutor asked whether anyone had a problem with the rule that the testimony of one witness, if believed, was sufficient to prove a fact, and that neither corroboration, DNA, nor another eyewitness was necessary. When she remarked that she had to ask these kinds of questions “because of shows like CSI where they show bullets going through people’s bodies,” T.B. asked, “You can’t do that?”
The prosecutor subsequently used a peremptory challenge to excuse T.B. Defense counsel immediately requested a side bar. Later, outside the presence of the prospective jurors, the trial court related that defense counsel had made a Wheeler motion, and the court asked counsel to place on the record what transpired. This ensued:
Regardless of whether defense counsel specifically cited Batson, the issue was preserved for appeal. (People v. Gray (2005) 37 Cal.4th 168, 184, fn. 2.)
“MR. CRIEGO [defense counsel]: [T.B.] was by all appearances an African American. Since I’m an African American, it’s been my experience of the more than 100 jury trials I’ve done in Fresno County with the exception of one and only one, the District Attorney’s Office routinely discharges African Americans from jury service when I am involved as the defense attorney. In this particular case Mr. [B.] had been passed over at least twice by the prosecutor, and today she issued the challenge by way of a peremptory excusing Mr. [B.] I believe he answered the questions fairly, no different than anyone else. Although he said his prior jury service was a negative event in his life, I believe he said it was negative because of other individuals who could not make up their minds.
“THE COURT: Okay. Ms. Landau what’s your response?
“MS. LANDAU: Your Honor, I will, if the Court is making a prima facie showing that?
“THE COURT: No. I find there’s no prima facie showing made. But for the purposes of the record in the event I were to have ruled otherwise, do you want to state your reasons?
“MS. LANDAU: I will just briefly respond that regardless of what the office has done, this is about me specifically being accused of prosecutorial misconduct. I excused Mr. [B.] because he and I did have some interaction, and I felt that he was confrontational in that interaction. He indicated that he had a past jury experience that was negative for him because jurors were trying to talk other jurors out of things and not paying attention. I felt based on that that he would have a hard time interacting with the rest of the jury in this case and that was basically the reason. I will also point out he was seated late yesterday, and I believe I exercised one peremptory challenge this morning before Mr. [B.] so.”
“THE COURT: All right. I would find that in the event that people far wiser than I who have 90 days to mull it over were to disagree and find that there is a prima facie showing that the District Attorney has established a basis for the excuse .… And I can’t make any comment about what the District Attorney’s Office always does in other cases because I haven’t been at or observed other cases.”
Appellant now says the trial court erred by failing to find a prima facie showing and, once the prosecutor gave her explanation, by failing to evaluate her reasons. We find no error.
“In order to make a prima facie showing, ‘a litigant must raise the issue in a timely fashion, make as complete a record as feasible, [and] establish that the persons excluded are members of a cognizable class.’ [Citation.] The high court recently explained that ‘a defendant satisfies the requirements of Batson’s first step by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred.’ [Citation.] ‘An “inference” is generally understood to be a “conclusion reached by considering other facts and deducing a logical consequence from them.”’ [Citation.]” (People v. Gray, supra, 37 Cal.4th at p. 186, Johnson, supra, 545 U.S. at pp. 168-170, fn. 4.)
African-Americans are a cognizable group for purposes of Batson and Wheeler. (People v. Alvarez (1996) 14 Cal.4th 155, 193.) Although the record does not establish appellant’s race, the probation officer’s report suggests he is Caucasian. A defendant and prospective juror(s) alleged to have been wrongly excused need not be members of the same race in order for the defendant to complain. (Powers v. Ohio (1991) 499 U.S. 400, 416.)
“Though proof of a prima facie case may be made from any information in the record available to the trial court, the [California Supreme Court has] mentioned ‘certain types of evidence that will be relevant for this purpose. Thus the party may show that his opponent has struck most or all of the members of the identified group from the venire, or has used a disproportionate number of his peremptories against the group. He may also demonstrate that the jurors in question share only this one characteristic – their membership in the group – and that in all other respects they are as heterogeneous as the community as a whole. Next, the showing may be supplemented when appropriate by such circumstances as the failure of his opponent to engage these same jurors in more than desultory voir dire, or indeed to ask them any questions at all. Lastly, … the defendant need not be a member of the excluded group in order to complain of a violation of the representative cross-section rule; yet if he is, and especially if in addition his alleged victim is a member of the group to which the majority of the remaining jurors belong, these facts may also be called to the court’s attention.’ [Citations.]” (People v. Bell, supra, 40 Cal.4th at p. 597.)
“[W]hen a trial court denies a Wheeler motion without finding a prima facie case of group bias the reviewing court considers the entire record of voir dire. [Citations.] As with other findings of fact, we examine the record for evidence to support the trial court’s ruling.” (People v. Howard (1992) 1 Cal.4th 1132, 1155.) This standard of review is consistent with the United States Supreme Court’s reiteration in Johnson of the applicable rules, “which require the defendant to attempt to demonstrate a prima facie case of discrimination based on the ‘totality of the relevant facts.’ [Citation.]” (People v. Gray, supra, 37 Cal.4th at p. 186; see Johnson, supra, 545 U.S. at p. 168.) “Because Wheeler motions call upon trial judges’ personal observations, we view their rulings with ‘considerable deference’ on appeal. [Citations.]” (People v. Howard, supra, 1 Cal.4th at p. 1155.)
The California Supreme Court has stated that a finding of no prima facie case will be affirmed “where the record suggests grounds upon which the prosecutor might reasonably have challenged the jurors in question.” (People v. Farnam (2002) 28 Cal.4th 107, 135; accord, People v. Guerra (2006) 37 Cal.4th 1067, 1101.) Appellant argues this standard is outdated, since Johnson makes it clear that a party complaining of racial discrimination during voir dire makes a prima facie case of group bias if his or her allegations lead to the mere inference of discrimination. While we note that the California Supreme Court has employed the standard post-Johnson (see People v. Guerra, supra, 37 Cal.4th at p. 1101), we need not decide whether appellant is correct: “‘[W]e have reviewed the record and, like the United States Supreme Court in Johnson … [we] are able to apply the high court’s standard and resolve the legal question whether the record supports an inference that the prosecutor excused a juror on the basis of race.’ [Citation.]” (People v. Guerra, supra, 37 Cal.4th at p. 1101.)
We find no such inference here. Although the establishment of a prima facie case does not depend on the number of prospective jurors challenged (see People v. Moss (1986) 188 Cal.App.3d 268, 277), the requisite showing is not made merely by establishing the excused prospective juror was a member of a cognizable group (People v. Alvarez, supra, 14 Cal.4th at p. 198; United States v. Chinchilla (9th Cir. 1989) 874 F.2d 695, 698). While defense counsel asserted that the district attorney’s office routinely challenged African-Americans in all but one jury trial in which defense counsel was involved, such a representation is insufficient because we have no way of knowing how many African-Americans were in the jury venires in those cases, or how often and under what circumstances a prosecutor exercised peremptory challenges against them. (See Swain v. Alabama (1965) 380 U.S. 202, 224, overruled on other grounds in Batson, supra, 476 U.S. at p. 100, fn. 25; People v. Bell, supra, 40 Cal.4th at pp. 597-598 & fn. 3 [small absolute size of sample made drawing inference of discrimination, from prosecutor’s excusal of two out of three African-American women, impossible].) Moreover, there was no showing that this particular prosecutor was involved in any of those cases. Additionally, while defense counsel suggested T.B. answered questions in the same manner as other prospective jurors, counsel recognized he had characterized his previous jury experience as negative. Regardless of why T.B. felt this way, his answers in this regard counter the notion that he was treated in a disparate manner that was suggestive of group bias. (Compare People v. Hall (1983) 35 Cal.3d 161, 168; People v. Granillo (1987) 197 Cal.App.3d 110, 121.) The prosecutor’s voir dire of T.B. was not “desultory,” but instead was similar to what she conducted with respect to the other prospective jurors. (Compare People v. Turner (1986) 42 Cal.3d 711, 727.)
Under the circumstances, appellant failed to produce evidence sufficient to permit the drawing of an inference that discrimination occurred. (Johnson, supra, 545 U.S. at p. 170.) Appellant says the trial court should have reconsidered its finding of no prima facie case once it determined Juror No. 55 had been improperly challenged (see post), but the California Supreme Court has held that “a trial court has no sua sponte duty to reexamine rulings on previous Wheeler/Batson motions once it determines that a prima facie case has been made as to one juror. [Citation.]” (People v. Williams (2006) 40 Cal.4th 287, 311; accord, People v. Avila, supra, 38 Cal.4th at pp. 548-552.) Appellant did not ask the trial court to revisit the challenge to T.B. after its ruling on Juror No. 55 (see People v. Avila, supra, at p. 552), “and we review whether the trial court’s decision was correct at the time it was made and not in light of subsequent events.” (People v. Williams, supra, at p. 311.)
In light of the trial court’s express negative finding in this regard, we conclude the issue was not rendered moot by its asking the prosecutor to state her reasons. (Compare Hernandez v. New York (1991) 500 U.S. 352, 359 (plur. opn. of Kennedy, J.) [where prosecutor justified challenges although no express finding of a prima facie case had been made, issue whether prima facie case of discrimination had been made became moot] with People v. Turner (1994) 8 Cal.4th 137, 166-167, overruled on other grounds in People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5 [issue not moot where trial court ruled it did not find prima facie case & only asked prosecutor for justifications to complete record in case appellate court disagreed]; see People v. Jurado (2006) 38 Cal.4th 72, 102, 104 [when trial court solicits explanation without first indicating its views on prima facie issue, reviewing court may infer implied prima facie finding]; People v. Arias (1996) 13 Cal.4th 92, 135 [same].)
Given our conclusion no prima facie case was established, we need not review the adequacy of the prosecutor’s justifications for her peremptory challenge of T.B. (People v. Farnam, supra, 28 Cal.4th at p. 135; People v. Turner, supra, 8 Cal.4th at p. 167.) Nevertheless, we have done so and conclude the trial court did not err in its assessment of them.
As previously described, and assuming, out of an abundance of caution, that appellant made out a prima facie case of racial discrimination here – step one under Batson and Wheeler – “the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step two).… The second step of this process does not demand an explanation that is persuasive, or even plausible. ‘At this [second] step of the inquiry, the issue is the facial validity of the prosecutor’s explanation. Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral.’ [Citations.]” (Purkett v. Elem (1995) 514 U.S. 765, 767-768.)
Because the prosecutor’s explanation here was race-neutral and, hence, facially valid, we move to step three of the process, at which point the trial court must decide whether the opponent of the strike has proved purposeful racial discrimination. (Purkett v. Elem, supra, 514 U.S. at p. 767.) It is at this point that the persuasiveness of the justification becomes relevant (Johnson, supra, 545 U.S. at p. 171), as implausible or fantastic justifications will often be found to be pretexts for purposeful discrimination (Purkett v. Elem, supra, at p. 768). Once the prosecutor “come[s] forward with an explanation that demonstrates a neutral explanation related to the particular case tried” (People v. Johnson (1989) 47 Cal.3d 1194, 1216), the trial court must then satisfy itself that the explanation is genuine (People v. Hall, supra, 35 Cal.3d at p. 167). “This demands of the trial judge a sincere and reasoned attempt to evaluate the prosecutor’s explanation in light of the circumstances of the case as then known, his knowledge of trial techniques, and his observations of the manner in which the prosecutor has examined members of the venire and has exercised challenges for cause or peremptorily, for ‘we rely on the good judgment of the trial courts to distinguish bona fide reasons for such peremptories from sham excuses belatedly contrived to avoid admitting acts of group discrimination.’ [Citation.]” (Id. at pp. 167-168.) “When a trial court has made a sincere and reasoned effort to evaluate each of the stated reasons for a challenge to a particular juror, we accord great deference to its ruling, reviewing it under the substantial evidence standard. [Citations.]” (People v. Jurado, supra, 38 Cal.4th at pp. 104-105.)
A prosecutor is presumed to use his or her peremptory challenges in a constitutional manner. (People v. Alvarez, supra, 14 Cal.4th at p. 193; Wheeler, supra, 22 Cal.3d at p. 278.) The justification proffered for the particular excusal “need not support a challenge for cause, and even a ‘trivial’ reason, if genuine and neutral, will suffice. [Citation.]” (People v. Arias, supra, 13 Cal.4th at p. 136.) “All that matters is that the prosecutor’s reason for exercising the peremptory challenge is sincere and legitimate, legitimate in the sense of being nondiscriminatory. ‘[A] “legitimate reason” is not a reason that makes sense, but a reason that does not deny equal protection. [Citations.]’ [Citation.]” (People v. Reynoso (2003) 31 Cal.4th 903, 924, quoting Purkett v. Elem, supra, 514 U.S. at p. 769.) “When the prosecutor’s stated reasons are both inherently plausible and supported by the record, the trial court need not question the prosecutor or make detailed findings. But when the prosecutor’s stated reasons are either unsupported by the record, inherently implausible, or both, more is required of the trial court than a global finding that the reasons appear sufficient.” (People v. Silva (2001) 25 Cal.4th 345, 386.)
Appellant contends the record does not support the prosecutor’s explanation that T.B. was “confrontational” in his interaction with her. The trial court, having observed that interaction, was in a much better position to judge T.B.’s demeanor, and thus the prosecutor’s credibility, than we who are limited to “‘the cold record.’” (People v. Reynoso, supra, 31 Cal.4th at pp. 917-918 & fn. 4; see People v. Ward (2005) 36 Cal.4th 186, 200.) Significantly, the transcript of voir dire does not contradict the reason given by the prosecutor. (See People v. Reynoso, supra, at p. 923.) Moreover, T.B. appeared to be frustrated over his prior jury’s inability to reach a verdict on what he seemed to view as a simple case, and, in light of his comments, the prosecutor rightfully could feel concerned about his ability to interact with the rest of the jury. (See People v. Gutierrez (2002) 28 Cal.4th 1083, 1125.) As the trial court knew, there had already been one hung jury in this case, giving added impetus to the prosecutor’s concern in this regard. In light of the foregoing, the trial court adequately assessed the prosecutor’s explanation, and substantial evidence supports its implicit conclusion the explanation was genuine.
B. Juror No. 55
The woman who ultimately became Juror No. 55 was called into the box after the defense had exhausted its peremptory challenges. In answering the set list of questions, Juror No. 55 revealed that she had lived in Fresno for 35 years, was an EKG technician, had a husband who was a captain with the Fresno Police Department, had graduated from high school and had three years of college, and had no prior jury service. During the prosecutor’s voir dire, this exchange took place:
“[MS. LANDAU:] Any problem with the idea that we give testimonial evidence equal weight to sort of scientific or physical evidence in a trial. Is there anyone here who feels we should never prosecute a case where there’s not physical evidence such as DNA, fingerprints, blood. [¶] Can you conceive of a situation where there wouldn’t be DNA or physical evidence, [Juror No. 55], in a case?
“[JUROR NO. 55]: No. I would rather have proof.
“MS. LANDAU: Do you think that physical evidence is always left behind at a crime scene?
“[JUROR NO. 55]: No.
“MS. LANDAU: So I’ll just use as an example, I had a drug possession case where they wanted DNA on the baggie of meth it happened to be. Can you understand there’s not always DNA left on things? There’s not always physical evidence left, like fingerprints sometimes when people commit a crime.
“[JUROR NO. 55]: That’s true.
“MS. LANDAU: Can you agree with that in general?
“[JUROR NO. 55]: Yes.
“MS. LANDAU: If you hear testimonial evidence, I’ll direct this at you [Juror No. 55] –
“MR. CRIEGO: Objection to the form of the question, presupposing evidence.
“THE COURT: That’s sustained.
“MS. LANDAU: Could you give equal weight to testimonial evidence that you would give to physical evidence?
“[JUROR NO. 55]: No.
“MS. LANDAU: Okay. So in other words, are you saying that without physical evidence, you don’t think you could arrive at a verdict in this case?
“[JUROR NO. 55]: Correct.
“MR. CRIEGO: Same objection. She’s having the juror presuppose the evidence.
“THE COURT: That’s sustained.
“MS. LANDAU: You’re going to be instructed in this case that direct and – testimonial and physical evidence are given equal weight. Do you think you could follow that instruction?
“[JUROR NO. 55]: Yes, I can.”
The prosecutor exercised her next peremptory challenge against Juror No. 55. After an unreported conversation between the court and counsel, the court asked the woman to remain as a juror and directed the prosecutor to exercise her next peremptory challenge. When the prosecutor passed, the court announced there was a completed jury and proceeded to selection of the alternates. Juror No. 55 was subsequently sworn in as one of the trial jurors. After the jury left the courtroom, the situation involving Juror No. 55 was addressed:
“[THE COURT:] As to [Juror No. 55], …, she is, the record should show she is African American. Because we had the Wheeler issue come up earlier with Mr. [B.], I ruled that at that point there hadn’t been a prima facie showing. One thing, there had been no systematic exclusion or pattern of exclusion based upon race. In this case, I realize that Ms. Landau in just a moment will state the reasons she had to excuse, but I did not see that there was – well, to be honest with you, I was not quite sure what the procedure is when this kind of thing happens. [¶] Ms. Landau, you may make the record in this case.
“MS. LANDAU: Again, I’m going to ask that the Court determine whether or not there’s been a prima facie showing.
“THE COURT: I think there has at this point of there being no apparent reason [Juror No. 55] should be excused, she being the second and only other African American person on the entire panel of 70 that we originally had. Now you may go ahead and make your record.
“MS. LANDAU: Um, for the record, Your Honor, I did ask some questions about regarding physical evidence and testimonial evidence wherein I thought she gave an answer that she would require more than testimonial evidence in the case, and I was concerned about that. I will also state for the record that during the times that I was asking questions of all the panelists, she was either non-responsive, or looked puzzled, or like she didn’t agree with what I was saying. So those were my concerns. They had nothing to do with race whatsoever. A juror of any other race who had responded to my question the way that she did I would have had the same concerns.
“THE COURT: The record has been made. I rule insufficient evidence to justify the excusal, and she’ll remain on the jury.…
“MS. LANDAU: Just for the record, I would like to challenge the jury at this point. My concern now is that I exercised a peremptory on a juror, and I don’t know if she’s going to take personal offense to that.
“THE COURT: I don’t know what else to do. Otherwise I’d have to throw out the whole jury and start again.
“MS. LANDAU: That’s the motion I’m making.
“THE COURT: That’s denied.”
Appellant contends the trial court erred in reseating Juror No. 55, as it neither obtained defense counsel’s consent to that procedure nor gave him a meaningful opportunity to object to that remedy.
As a preliminary matter, respondent suggests there is no justiciable issue, either because it is moot or because appellant lacks standing. During the evidentiary portion of trial, the trial court related that the prosecutor “was concerned that because of my rulings that I was making at least an implied finding that she was dishonest or racially motivated or in some other way improper in her conduct. And I assured her that I certainly did not intend to – for that to be the state of the record. She has done nothing improper or deceitful or racially inappropriate. And, in fact, I would state this point, if any mistake was made, it was my mistake.”
We are not quite sure what to make of this statement. Respondent argues it shows the People, not appellant, were the aggrieved party; hence, appellant has no right to challenge the reseating of Juror No. 55 because the Wheeler remedy of dismissing the jurors and quashing the venire only applies where a party is shown to have improperly exercised peremptory challenges to exclude members of a cognizable group, and here the trial court did not find purposeful racial discrimination. The trial court did find a prima facie case of improper group discrimination, however, and once that finding was made, it could not be undone. (People v. Arias, supra, 13 Cal.4th at p. 135; People v. Granillo, supra, 197 Cal.App.3d at p. 122.) Under the circumstances, the trial court’s subsequent finding of “insufficient evidence to justify the excusal” cannot reasonably be read as anything but a rejection of the prosecutor’s assertion of a nondiscriminatory purpose, since even a trivial race- or group-neutral explanation, if genuine, will support the exercise of a peremptory challenge for which, otherwise, no reason at all need be given. (See Code Civ. Proc., § 226, subd. (b); People v. Ervin (2000) 22 Cal.4th 48, 74-75.) Accordingly, we address the merits of appellant’s claim.
Code of Civil Procedure section 226, subdivision (b) provides: “A challenge to an individual juror may be taken orally or may be made in writing, but no reason need be given for a peremptory challenge, and the court shall exclude any juror challenged peremptorily.” The provisions of this statute apply to criminal, as well as civil, trials. (Code Civ. Proc., § 192.)
We begin by noting that the question whether a prima facie case was shown is a close one, and the question whether substantial evidence supports the trial court’s finding of an improper peremptory challenge is even closer. Assuming the trial court, having observed Juror No. 55, disagreed with the prosecutor’s assertion that the juror was unresponsive or appeared to be puzzled or not in agreement with what the prosecutor was saying, the record seems clearly to support the prosecutor’s concerns about the juror’s weighing of testimonial evidence. In any event, we need not determine whether the trial court’s ruling in this regard should be set aside (see People v. Huggins (2006) 38 Cal.4th 175, 228, fn. 13), since we are persuaded appellant implicitly consented to the reseating of the juror.
As a general rule, once a peremptory challenge is exercised, the trial court is required to excuse the challenged prospective juror. (Code Civ. Proc., § 226, subd. (b).) Originally, the only option recognized for a Wheeler violation was to begin jury selection anew. (Wheeler, supra, 22 Cal.3d at p. 282; People v. Rodriguez (1996) 50 Cal.App.4th 1013, 1025.) As the California Supreme Court stated in Wheeler, “If the court finds that the burden of justification is not sustained as to any of the questioned peremptory challenges, the presumption of their validity is rebutted. Accordingly, the court must then conclude that the jury as constituted fails to comply with the representative cross-section requirement, and it must dismiss the jurors thus far selected. So too it must quash any remaining venire, since the complaining party is entitled to a random draw from an entire venire – not one that has been partially or totally stripped of members of a cognizable group by the improper use of peremptory challenges. Upon such dismissal a different venire shall be drawn and the jury selection process may begin anew.” (Wheeler, supra, at p. 282, fn. omitted.)
In People v. Willis (2002) 27 Cal.4th 811 (Willis), however, the California Supreme Court dealt with a situation in which defense counsel, representing an African-American defendant, first moved to dismiss and replace the entire jury venire as underrepresentative of African-Americans, and, when unsuccessful, apparently attempted to solve the problem by using his peremptory challenges to exclude Caucasian males from the jury in violation of the People’s right to an impartial jury. The trial court, after soliciting defense counsel’s reasons for his peremptory challenges, found counsel had exercised discriminatory challenges due to group bias. With the People’s assent, the court rejected a defense motion to dismiss the remaining venire, and continued voir dire with the original venire. (Id. at pp. 813-814.)
On appeal from his conviction, the defendant argued that dismissal of the venire was the only available remedy for his own exercise of group bias. (Willis, supra, 27 Cal.4th at p. 814.) The California Supreme Court disagreed, “concluding that the trial court, acting with the prosecutor’s assent, had discretion to consider and impose remedies or sanctions short of outright dismissal of the entire jury venire.” (Ibid.) After observing that the Wheeler remedy of dismissal is not compelled by the federal Constitution (Willis, supra, at p. 818; see Batson, supra, 476 U.S. at p. 99, fn. 24), the California Supreme Court concluded that “the benefits of discretionary alternatives to mistrial and dismissal of the remaining jury venire outweigh any possible drawbacks. As the present case demonstrates, situations can arise in which the remedy of mistrial and dismissal of the venire accomplish nothing more than to reward improper voir dire challenges and postpone trial. Under such circumstances, and with the assent of the complaining party, the trial court should have the discretion to issue appropriate orders short of outright dismissal of the remaining jury, including … reseating any improperly discharged jurors if they are available to serve.” (Willis, supra, at p. 821.) Finding it “appropriate, and consistent with the ends of justice, to permit the complaining party to waive the usual remedy of outright dismissal of the remaining venire” (id. at p. 823), the court nevertheless “stress[ed] that such waiver of consent is a prerequisite to the use of such alternative remedies or sanctions, for Wheeler made clear that ‘the complaining party is entitled to a random draw from an entire venire’ and that dismissal of the remaining venire is the appropriate remedy for a violation of that right. [Citation.] Thus, trial courts lack discretion to impose alternative procedures in the absence of consent or waiver by the complaining party. On the other hand, if the complaining party does effectively waive its right to mistrial, preferring to take its chances with the remaining venire, ordinarily the court should honor that waiver rather than dismiss the venire and subject the parties to additional delay.” (Willis, supra, at pp. 823-824.)
In People v. Overby (2004) 124 Cal.App.4th 1237 (Overby), the prosecutor exercised a peremptory challenge to excuse an African-American juror. Defense counsel immediately asked the court to order the prospective juror to remain in the courtroom, then made a Batson-Wheeler motion. Counsel did not request any specific remedy for the alleged violation. After a sidebar hearing, the trial court granted the motion and elected the remedy of reseating the improperly challenged juror. When asked if they wished to be heard concerning the court’s decision, defense counsel submitted the matter and the prosecutor objected. When the challenged juror was reseated and voir dire resumed, the prosecutor made a Batson-Wheeler motion that was denied. She later requested reconsideration and argued that the venire should be dismissed. At no time did defense counsel state agreement with the notion that the venire should be dismissed or express dissatisfaction with the remedy chosen by the court. The motion for reconsideration was denied, and the defendant ultimately was convicted. (Overby, supra, at pp. 1242-1243.)
On appeal, Overby claimed he neither consented to the trial court’s proposed remedy nor waived his right to dismissal of the panel. He argued that he should receive a new trial because of the trial court’s failure to dismiss the entire venire in the absence of his consent. The Attorney General countered that Overby’s conduct amounted to implied consent to the reseating of the challenged juror. (Overby, supra, 124 Cal.App.4th at p. 1243.) In agreeing, the Court of Appeal noted that, while the Supreme Court in Willis did not specify what constitutes consent to an alternate remedy or effective waiver of the right to a mistrial, such consent need not be personally given, and the right to request a mistrial need not be personally waived, by the defendant. (Overby, supra, at pp. 1242, 1243.) The Court of Appeal rejected Overby’s argument that defense counsel did not consent, expressly or implicitly, to the reseating of the juror, but instead merely remained silent, and that consent or waiver may not be implied from silence. Instead, the court found that the “rationale for declining to imply consent or waiver from silence is not applicable in the Batson-Wheeler context, where litigants waive their objections to the improper use of peremptory challenges if they do not assert them in a timely manner. [Citation.]” (Overby, supra, at p. 1244.) The court further found that, by immediately asking the trial court to prevent the challenged juror from leaving the courtroom and declining the opportunity to advocate any particular remedy, counsel’s conduct was not mere silence, but instead was an indication of consent to the remedy proposed by the trial court. This conclusion was reinforced by defense counsel’s failure to state a preference for a new panel when the prosecutor sought reconsideration. (Id. at pp. 1244-1245.)
Appellant acknowledges the holdings in Willis and Overby, but contends the notions of implicit consent or waiver cannot be applied to him because, in light of the trial court’s denial of the prosecutor’s challenge to the jury, any further objection would have been futile. We disagree. The defense’s perspective clearly would have been different from that of the prosecution, especially where the prosecutor’s only stated concern was that the juror might take offense to having been challenged. Appellant, on the other hand, was entitled under Wheeler to dismissal of the jurors, discharge of the venire, and new jury selection if he so desired. (Wheeler, supra, 22 Cal.3d at p. 282; see Willis, supra, 27 Cal.4th at p. 823.) We will not assume the trial court would have refused that course of action had appellant requested it. If defense counsel was dissatisfied with the trial court’s selected remedy, he should have said something. As he did not, appellant’s challenge to the reseating of Juror No. 55 fails.
II
SUFFICIENCY OF THE EVIDENCE
Appellant contends his convictions must be reversed, or at least modified to reflect conviction of a lesser included offense, because the evidence is insufficient to establish that he used any force to overcome Virginia’s will. In this respect, the verdict forms stated that the jury found appellant guilty of sexual penetration by force and forcible oral copulation, as charged in counts 1 and 2 of the first amended information, respectively. The first amended information alleged that each offense was accomplished “by force, violence, duress, menace, and fear of immediate and unlawful bodily injury .…” Jurors were instructed, as to both counts, solely on theories of force and duress. Accordingly, we must determine whether the evidence sufficiently established appellant’s use of force or duress to accomplish the charged acts. (See In re Jose P. (2005) 131 Cal.App.4th 110, 116, fn. 4.)
Sections 288a, subdivision (c)(2) and 289, subdivision (a)(1) prohibit commission of an act of oral copulation and an act of sexual penetration, respectively, when said act “is accomplished against the victim’s will by means of,” inter alia, force or duress. The term “force” has the same meaning in these statutes as it does in section 261, subdivision (a)(2), which defines forcible rape. (People v. Kusumoto (1985) 169 Cal.App.3d 487, 493.) So does the term “duress,” except that a threat of hardship does not constitute duress for purposes of the rape statute. (See § 261, subd. (b); People v. Leal (2004) 33 Cal.4th 999, 1001-1002, 1004; People v. Pitmon (1985) 170 Cal.App.3d 38, 50.)
Appellant’s jury was instructed, as to each offense, that “‘[d]uress’ means a direct or implied threat of force, violence, danger, hardship or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to perform an act which she would otherwise not have performed, or acquiesce in an act to which she otherwise would not have submitted.”
In People v. Griffin (2004) 33 Cal.4th 1015, the California Supreme Court held that “the Legislature did not intend the term ‘force,’ as used in the rape statute, to be given any specialized legal definition. [Citation.]” (Id. at p. 1023.) The court found nothing “in the common usage definitions of the term ‘force,’ or in the express statutory language of section 261 itself, that suggests force in a forcible rape prosecution actually mans force ‘substantially different from or substantially greater than’ the physical force normally inherent in an act of consensual sexual intercourse. [Citation.] To the contrary, it has long been recognized that ‘in order to establish force within the meaning of section 261, subdivision [(a)](2), the prosecution need only show the defendant used physical force of a degree sufficient to support a finding that the act of sexual intercourse was against the will of the [victim].’ [Citation.]” (Griffin, at pp. 1023-1024.) Thus, “‘“force” plays merely a supporting evidentiary role .…’ [Citation.]” (Id. at p. 1025.) The court observed that “[t]he element of force in forcible rape does not serve to differentiate between two forms of unlawful sexual contact as it does under section 288[, proscribing, in separate subdivisions, nonforcible and forcible lewd acts against children]. When two adults engage in consensual sexual intercourse, whether with or without physical force greater than that normally required to accomplish an act of sexual intercourse, the forcible rape statute is not implicated. The gravamen of the crime of forcible rape is a sexual penetration accomplished against the victim’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury. … [In] a forcible rape prosecution the jury determines whether the use of force served to overcome the will of the victim to thwart or resist the attack, not whether the use of such force physically facilitated sexual penetration or prevented the victim from physically resisting her attacker. The Legislature has never sought to circumscribe the nature or type of forcible conduct that will support a conviction of forcible rape, and indeed, the rape case law suggests that even conduct which might normally attend sexual intercourse, when engaged in with force sufficient to overcome the victim’s will, can support a forcible rape conviction. [Citation.] Nor has the rape law ever sought to quantify the amount of force necessary to establish the crime of forcible rape .… [¶] The question for the jury in this case was simply whether defendant used force to accomplish intercourse with [the victim] against her will, not whether the force he used overcame [the victim’s] physical strength or ability to resist him.” (Griffin, at pp. 1027-1028.)
In People v. Guido (2005) 125 Cal.App.4th 566, 576, the Court of Appeal held that the foregoing concepts “apply equally to the crime of forcible oral copulation. Consensual oral copulation, with or without physical force greater than that normally required to accomplish the act, is not unlawful except when accomplished under circumstances violative of section 288a. As with forcible rape, the gravamen of the crime of forcible oral copulation is a sexual act accomplished against the victim’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury. As with forcible rape, it is only when one participant in the act uses force to commit the act against the other person’s will that an otherwise lawful act becomes unlawful.” We see no reason why these principles should not also apply to the crime of forcible sexual penetration in violation of section 289.
We review the evidence presented at trial in light of the applicable principles concerning force and duress. The standard of review is clear. The test of sufficiency of the evidence is whether, reviewing the whole record in the light most favorable to the judgment below, substantial evidence is disclosed such that a reasonable trier of fact could find the essential elements of the crime beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578; accord, Jackson v. Virginia (1979) 443 U.S. 307, 319.) Substantial evidence is that evidence which is “reasonable, credible, and of solid value.” (People v. Johnson, supra, at p. 578.) An appellate court must “presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” (People v. Reilly (1970) 3 Cal.3d 421, 425.) An appellate court must not reweigh the evidence (People v. Culver (1973) 10 Cal.3d 542, 548), reappraise the credibility of the witnesses, or resolve factual conflicts, as these are functions reserved for the trier of fact (In re Frederick G. (1979) 96 Cal.App.3d 353, 367). “Where the circumstances support the trier of fact’s finding of guilt, an appellate court cannot reverse merely because it believes the evidence is reasonably reconciled with the defendant’s innocence. [Citations.]” (People v. Meza (1995) 38 Cal.App.4th 1741, 1747; accord, People v. Redmond (1969) 71 Cal.2d 745, 755.)
Virginia testified that she “just froze,” and she told police she was frozen with fear. Her lack of physical reaction does not necessarily suggest she consented or appellant did not overcome her will by means of force or duress. (See People v. Barnes (1986) 42 Cal.3d 284, 299-300.) Indeed, Virginia’s testimony made it clear that she did not consent to the sexual activity, and that she verbally conveyed this fact to appellant several times by telling him “no,” but he refused to stop. Although lack of consent and force or duress are separate elements that must each be proven (In re Jose P., supra, 131 Cal.App.4th at p. 116), the same evidence is often relevant to both, as it is directly linked to the overbearing of the victim’s will (People v. Maury (2003) 30 Cal.4th 342, 403). In addition to Virginia’s verbal expressions to appellant that his acts were against her will, she testified that when appellant inserted his finger in her vagina, it did not feel good; if she could have, she would have pushed him away and gotten him out of there somehow. She also testified that, after she went into the bedroom, “he was on me.” Her statement to police was admitted into evidence; in it, she related that appellant was kissing her before she knew what was going on; “He was just at me before I know [sic] what was happening .…” She also told the police that, when she asked him what he was going to tell his wife, he responded (as she described it), “If this gets back to her, he pressed extra hard on me then, I’m in trouble.” She also related to police that when he stopped kissing her and pulled “everything” down, she thought she would just pull her pants back on and leave, but he said no, that he did not want her dressed, “[s]o, my clothes came off.”
We are persuaded that, considering the evidence in light of all the circumstances, a rational trier of fact could have found that appellant used force or duress to accomplish the charged acts with Virginia against her will. In particular, her statement that appellant pressed “extra hard” suggests he was already pressing on her and, in context, conveying an implied threat of worse. The evidence is sufficient to uphold the convictions. (See In re Jose P., supra, 131 Cal.App.4th at pp. 116-118.)
III
IMPOSITION OF THE UPPER TERM
The probation officer’s report (RPO) recommended imposition of concurrent upper-term sentences on each count, based on the existence of several factors in aggravation and none in mitigation. Of particular note, the RPO revealed that appellant had previously been convicted of two counts of aggravated felonious sexual assault in New Hampshire, for which he had served a little more than 10 years in prison. The convictions resulted from his having had sex with his minor daughter, who was 15 years old at the time she reported the molestation.
At sentencing, defense counsel declined to argue for imposition of the lower term due to appellant’s prior record, but asserted that the middle term would be appropriate because of the mitigating circumstances that no more force was used in commission of the present crimes than was necessary to commit the acts, and the victim suffered no injuries. The trial court rejected the argument, finding that the facts of the offense did not give rise to any factors in mitigation. It imposed the upper term, finding, as factors in aggravation, that appellant had engaged in violent conduct indicating a serious danger to society, that his prior convictions as an adult were numerous, and that he had served a prior prison term. The court found no factors in mitigation.
Relying on Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham), Blakely v. Washington (2004) 542 U.S. 296 (Blakely), and Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), appellant now contends the trial court violated his Sixth Amendment right to trial by jury and Fourteenth Amendment right to due process by imposing the upper term based on factors not admitted by appellant or found by the jury to be true beyond a reasonable doubt.
Prior to appellant’s sentencing, the California Supreme Court undertook an extensive analysis of Apprendi, Blakely, and United States v. Booker (2005) 543 U.S. 220 and concluded that imposition of an upper term sentence, as provided under California law, was constitutional. (People v. Black (2005) 35 Cal.4th 1238, 1244, 1254, 1261 (Black I).) Recently, however, the United States Supreme Court overruled Black I in part and held that California’s determinate sentencing law “violates Apprendi’s bright-line rule: Except for a prior conviction, ‘any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.’ [Citation.]” (Cunningham, supra, 549 U.S. at p. ___ [127 S.Ct. at p. 868].) The middle term prescribed under California law, not the upper term, is the relevant statutory maximum. (Ibid.)
In light of Black I, any objection by appellant at sentencing based on Blakely, Apprendi, or the United States Constitution would have been futile. Accordingly, we reject respondent’s claim appellant waived the issue by failing to object. (People v. Sandoval (2007) 41 Cal.4th 825, 827, fn. 4(Sandoval).)
The United States Supreme Court remanded Black I to the California Supreme Court for reconsideration in light of Cunningham. In People v. Black (2007) 41 Cal.4th 799 (Black II), our state high court held that “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 fact finding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to a jury trial.” (Id. at p. 812.) The court explained that “[t]he facts upon which the trial court relies in exercising discretion to select among the terms available for a particular offense ‘do not pertain to whether the defendant has a legal right to a lesser sentence – and that makes all the difference insofar as judicial impingement upon the traditional role of the jury is concerned.’ [Citation.] Under California’s determinate sentencing system, the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term. [Citation.] Therefore, if 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.’” (Black II, supra, 41 Cal.4th at p. 813, fn. omitted.)
The state Supreme Court rejected the argument that, since a trial court cannot impose the upper term unless it considers all aggravating circumstances and determines they justify the upper term and outweigh any mitigating circumstances, a defendant has the right to a jury trial on all applicable aggravating circumstances even if one has been established in accordance with Blakely. (Black II, supra, 41 Cal.4th at p. 814.) The court stated: “The issue to be determined in each case is whether the trial court’s fact finding increased the sentence that otherwise could have been imposed, not whether it raised the sentence above that which otherwise would have been imposed.” (Id. at p. 815.) The court concluded: “[I]mposition 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.” (Id. at p. 816.)
In the present case, the RPO revealed that appellant had previously been convicted of two counts of felonious conduct for which he served a term in prison. Appellant did not challenge the accuracy of this account. Black II, which involved the aggravating circumstance that the defendant’s prior convictions were numerous and of increasing seriousness, makes it clear that the trial court’s reference here to appellant’s numerous prior convictions and service of a prior prison term fell within the recidivism exception to the jury trial right that consistently has been recognized by the United States Supreme Court. (Black II, supra, 41 Cal.4th at p. 818); see, e.g., Apprendi, supra, 530 U.S. at p. 488; Almendarez-Torres v. United States (1998) 523 U.S. 224, 230, 243, 244.) Since appellant’s criminal history established an aggravating circumstance “that independently satisf[ied] Sixth Amendment requirements and render[ed] him eligible for the upper term,” “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 .…” (Black II, supra, 41 Cal.4th at p. 820.) In short, there was no federal constitutional error. (Compare Sandoval, supra, 41 Cal.4th at pp. 837-838 [6th Amend. rights violated by imposition of upper term sentence where no aggravating circumstance cited by trial court fell within Blakely exceptions of fact of prior conviction or facts established by jury’s verdict or admitted by defendant].)
Appellant contends, however, that the trial court committed error under state law by finding “numerous” prior convictions. As appellant notes, this court has held, under the predecessor to California Rules of Court, rule 4.421(b)(2), that two acts cannot be “numerous.” (People v. Berry (1981) 117 Cal.App.3d 184, 191.). Nevertheless, appellant has not shown prejudice. As the trial court properly considered appellant’s prior record under rule 4.408(a) (Berry, at p. 191), a single factor in aggravation suffices to support imposition of the upper term (People v. Osband (1996) 13 Cal.4th 622, 730), and the trial court correctly found no circumstances in mitigation, it is not reasonably probable appellant would have obtained a more favorable result absent the error (People v. Watson (1956) 46 Cal.2d 818, 836).
All references to rules are to the California Rules of Court.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Harris, J., Dawson, J.