Opinion
NOT TO BE PUBLISHED
Super. Ct. No. P04CRF0396
BUTZ, J.Defendant Jason Sean Morgan was convicted, after a jury trial, of two counts of a lewd act upon a child aged 14 or 15 by a person at least 10 years older (Pen. Code, § 288, subd. (c)(1)), two counts of oral copulation with a child under age 16 (§ 288a, subd. (b)(2)), and two counts of sexual penetration with a child under age 16 by a person older than 21 (§ 289, subd. (i)). Sentenced to six years four months in state prison, defendant appeals. He contends that the trial court erred in denying a continuance, in admitting evidence of a prior offense, and in imposing an upper base term and consecutive sentences. He also contends he was denied the effective assistance of counsel. We shall affirm the judgment.
Undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
In June of 2003, defendant, age 34, met the 14-year-old victim at a public swimming pool. His attentions to the victim drew a warning of her age from her mother. At first he told the victim he was 28 years old. He only revealed his true age after seducing her, having led her, in a series of meetings, to progressively more serious sexual activity. After cessation of their relations she told her mother. Her mother told the police. The police recorded a telephone conversation on July 14, 2004, between defendant and the victim. The conversation is replete with incriminating statements by defendant about sexual activity with the victim. The prosecution was commenced later that month.
Denial of a continuance
The matter was set for trial to commence on January 10, 2006. On that date the court, at the request of defendant, vacated trial because of a breakdown in the relationship of defendant and his retained counsel. Defendant was granted time to retain new counsel, with trial postponed until March 7.
Defendant appeared briefly with his new counsel on January 30, 2006. A few days later the trial was reset for May 16, 2006. This was upon the assurance of new counsel that, notwithstanding his upcoming obligations in other cases, he would be able to be prepared. The court noted the case had priority (§ 1048) and asserted it was going to go on the date set, “come hell or high water.”
On May 10, 2006, the defense filed a written motion for a continuance. In a supporting declaration defendant’s new counsel averred: (1) he had not received a response from defendant’s former counsel to his request for original copies of material discovered to the defense; (2) the material he had been furnished by defendant was redacted; (3) the private investigator’s reports to defendant’s former counsel were unsatisfactory; (4) he was unaware how to reach the private investigator; (5) he had not yet received results of three subpoenas for telephone records; and (6) he was obliged to conduct an examination on May 16 by an order recently issued by another superior court.
The matter came on for hearing on May 12, 2006. A one-day continuance was ordered, in light of the examination order, and with that exception, the motion was denied.
The matter came on for trial on May 17, 2006. Defense counsel stated that he was not ready to proceed. He said that since he was retained, he had been busily engaged in representing other clients; he had requested but not received the file from former counsel; and he had learned only that morning of a pending Evidence Code section “1108 motion.” Defense counsel further asserted that he had subpoenaed telephone records from various telephone companies to aid in the cross-examination of the victim and had not yet received those records. He moved the court for a continuance to obtain the materials he mentioned or, in the alternative, to be relieved as counsel on the ground he was unprepared for trial.
The prosecutor observed that the motion to continue had been denied previously. He noted that counsel had not attempted to remediate the problem with the file for months after his initial request to former counsel. He said the prosecution had given new counsel all of the discovery he had been seeking upon request on May 5, 2006, and that the motion papers had been on file for almost a year and a half. He observed that defense counsel still had another week before he would have to put on his defense case.
The court denied the motion to continue and the motion to be relieved as counsel.
Admission of evidence of other sexual offenses
On May 18, 2006, the prosecution’s motion to permit evidence of the commission of other sexual offenses under Evidence Code section 1108 came on before the court. The motion proffered conduct in 1994 when defendant, then 25, developed a sexual relationship with another 14-year-old child. When first he met the earlier victim while surfing, he told her he was 19. He progressed to coitus with the earlier victim and, in a plea bargain, was convicted of unlawful sexual intercourse under Penal Code section 261.5. Defendant opposed the motion on the ground that the evidence should be excluded as more prejudicial than probative under Evidence Code section 352. The trial court granted the motion to admit the evidence, finding that the probative value was not outweighed by the prospect of undue prejudice.
Imposition of the upper term
On July 28, 2006, defendant was sentenced to the upper term on count 1 and to consecutive midterms on counts 2 through 6. The court announced its tentative sentence and invited comment. After remarks by counsel, the court made the following statement regarding imposition of the upper term:
“[I] consider this to be an aggravated case. What leads me to that conclusion is reviewing the report of Dr. Johnston and also the testimony during the trial. This defendant had a sexual relationship with a piece of fruit, a cantaloupe. The Court finds that to be incredibly deviant conduct.
“Dr. Johnston’s report indicates that defendant is, in fact, a pedophile. Defendant refuses to accept any responsibility in this case whatsoever because it never happened. He suffers from a personality disorder. He has narcissistic traits. He is a man who has clearly not learned from his past mistakes. He appears to be completely unwilling to accept any responsibility for his behavior. The Court’s conclusion is that, based on the doctor’s report, . . . there’s a risk to the public that he will recommit [these] offenses.”
DISCUSSION
I. Motion for Continuance of the Trial
Defendant contends that the trial court erred in denying his request for a continuance. He argues that it was unreasonable to deny the continuance because his counsel was not prepared for trial. The argument is unpersuasive and the contention of error is not meritorious.
To obtain a trial continuance the defense must show that notwithstanding due diligence defense counsel has been unable to prepare for trial (People v. Jenkins (2000) 22 Cal.4th 900, 1037) or that defense counsel is in fact unprepared to conduct the trial (People v. Fontana (1982) 139 Cal.App.3d 326, 333 (Fontana)). However, “a mere representation of unpreparedness is [in]sufficient to require the trial court to postpone probation revocation proceedings--or any other hearings or trials.” (Id. at p. 335.)
“With respect to defendant’s contention that the court erred in denying his various requests for continuance, the trial court has broad discretion to determine whether good cause exists to grant a continuance of the trial. [Citations.] A showing of good cause requires a demonstration that counsel and the defendant have prepared for trial with due diligence. [Citations.] When a continuance is sought to secure the attendance of a witness, the defendant must establish ‘he had exercised due diligence to secure the witness’s attendance, that the witness’s expected testimony was material and not cumulative, that the testimony could be obtained within a reasonable time, and that the facts to which the witness would testify could not otherwise be proven.’ (People v. Howard [(1992)] 1 Cal.4th [1132,] 1171.) The court considers ‘“not only the benefit which the moving party anticipates but also the likelihood that such benefit will result, the burden on other witnesses, jurors and the court and, above all, whether substantial justice will be accomplished or defeated by a granting of the motion.”’ (People v. Zapien [(1993)] 4 Cal.4th [929,] 972.) The trial court’s denial of a motion for continuance is reviewed for abuse of discretion.” (People v. Jenkins, supra, 22 Cal.4th at p. 1037.)
In Fontana defense counsel gave a detailed and undisputed explanation of basic preparation that had not yet been done, including reviewing, analyzing, and discussing with his client hundreds of pages of materials and the preliminary hearing transcript. (Fontana, supra, 139 Cal.App.3d at pp. 332-333.) If the continuance were denied, he would be required to proceed immediately with the hearing on the matter. Accordingly, the Court of Appeal concluded counsel was, in fact, unprepared. (Id. at p. 333.)
In this case, defense counsel made no comparable showing. He complained that prior counsel had not given him the file. However, he had received duplicate discovery from the prosecutor. He complained that the former private investigator’s reports he received from his client were redacted. However, he made no detailed showing of the import of the redaction for trial or that he could not obtain the redacted information in the interval before it was needed. He complained that telephone records had not yet been produced. However, he made no detailed showing at the time he requested continuances of the importance of the records for trial or that he could not obtain the records in the interval before they might prove useful.
In our judgment, on this record, there is no basis for an appellate determination that counsel was irremediably unprepared for trial. This is a case in which the trial court had discretion to find a mere representation of unpreparedness. Accordingly, we conclude that the trial court did not err in denying the requests for continuances.
We reject, for the same reason, the alternative contention that the judgment should be reversed because defendant was deprived of the effective assistance of counsel.
II. Evidence Code Section 1108
Defendant contends that the trial court erred in admitting evidence of his sex offenses leading to his earlier conviction of unlawful sexual intercourse. He argues that unlawful sexual intercourse was not “the type of sexual offense[] the Legislature had in mind when [Evidence Code] section 1108 was enacted,” that it “was propensity evidence that [defendant] habitually sought out teenage girls for sexual purposes,” and that it was remote in time. None of these arguments is persuasive and the contention of error is meritless.
It is incontestable that unlawful sexual intercourse is a type of sexual offense the Legislature had in mind when Evidence Code section 1108 was enacted. (Evid. Code, § 1108, subd. (d)(1) [“‘Sexual offense’ means a crime . . . that involved any of the following: [¶] (A) Any conduct proscribed by [Penal Code] Section . . . 261.5”].) The evidence was propensity evidence: that defendant has a propensity to sexually seduce young female children. However, it is the purpose of section 1108 to admit evidence of such propensities. Hence, as a matter of public policy, the prejudice attributable to evidence of such propensity is not undue prejudice. Lastly, we find no abuse of discretion in the decision that the nine-year hiatus following his Penal Code section 261.5 conviction did not so diminish the inference of such propensity as to render the evidence inadmissible under Evidence Code section 352.
Defendant also suggests, elliptically, that Evidence Code section 1108 is unconstitutional because it permits evidence of another offense to be used by the jury if they find it true by a preponderance of the evidence. (Contra, People v. Reliford (2003) 29 Cal.4th 1007, 1012-1016 .) Because the argument is not fully developed and raised with an implicit concession that it has been rejected by the California Supreme Court, we reject it without discussion. (See, e.g., People v. Turner (1994) 8 Cal.4th 137, 214, fn. 19.)
III. Upper Term and Consecutive Sentences
Defendant contends that the trial court erred in imposing an upper term and in imposing consecutive midterms based on facts that were not determined in findings by the jury. He argues that such findings are a prerequisite for these sentencing decisions under Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham).) His arguments are unpersuasive and the contention of error is not meritorious.
In Cunningham, the United States Supreme Court noted that the federal Constitution’s jury trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant. (Cunningham, supra, 549 U.S. at p. ___ [166 L.Ed.2d at p. 864].) The Supreme Court determined that the statutory maximum sentence under California’s determinate sentencing law (DSL) is the middle term, hence: “Because the DSL authorizes the judge, not the jury, to find the facts permitting an upper term sentence, the system cannot withstand measurement against our Sixth Amendment precedent.” (Id. at p. ___ [166 L.Ed.2d at p. 876].) As appears, Cunningham holds the DSL unconstitutional as applied to a sentence permitted only by a factual finding other than the fact of a prior conviction or one made by the jury.
A. There Was No Error in Imposing Consecutive Sentences
Defendant argues that imposing a consecutive sentence under section 669, based on facts not determined by the jury, violates the same constitutional norms as gave rise to Cunningham. Not so. The constitutional right to jury trial is not implicated by the trial court’s imposition of consecutive sentences. (People v. Black (2007) 41 Cal.4th 799, 821-823 (Black).)
B. The Trial Court Did Not Err in Imposing an Upper Term
Defendant argues that the trial court committed error under Cunningham in imposing an upper term sentence based on facts not found by the jury. Attorney General replies, inter alia, there was no Cunningham error because the sentence choice was based in part on defendant’s prior conviction. The Attorney General’s argument is persuasive.
In Black, the Supreme Court held: “[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.” (Black, supra, 41 Cal.4th at p. 816.) The federal right to jury trial does not extend to the fact of a prior conviction and other related issues that may be determined by examining the records of the prior convictions. (Id. at pp. 818-819.)
Defendant does not contest this reading of Cunningham. His only rejoinder is the assertion that the trial court “did not impose the upper term because of [defendant’s] prior conviction record.” However, one of the reasons given by the trial court for the upper term is: “He is a man who has clearly not learned from his past mistakes.” Earlier on, the court had made the following observation: “As to the facts relating to defendant himself, his prior criminal record relates to this type of misconduct, again with another child. . . . While he did perform well on probation, at least while he was on probation, the message, in this court’s view, was not well received.”
The meaning of these remarks is clear. The court found the fact that defendant had an earlier conviction of an offense of unlawful sexual conduct with a child an aggravating factor supporting its decision to impose an upper term. Defendant’s plea to the prior necessarily included these facts. (Cf. Shepard v. United States (2005) 544 U.S. 13, 24 [161 L.Ed.2d 205, 216].) The court did impose the upper term because of defendant’s prior conviction. For the reasons already given, that sufficed to preclude Cunningham error in imposing the upper term.
“If the sentencing judge is required to give reasons for a sentence choice, the judge must state in simple language the primary factor or factors that support the exercise of discretion . . . . The statement need not be in the language of these rules.” (Cal. Rules of Court, rule 4.406(a).)
DISPOSITION
The judgment is affirmed.
I concur: RAYE , Acting P. J.
I concur in the result: ROBIE , J.