Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County. James S. Hawkins, Judge, Super. Ct. No. INF053053.
Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Pamela Ratner Sobeck, Supervising Deputy Attorney General, and David Delgado-Rucci, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P.J.
A jury found defendant guilty of raping (Pen. Code, § 261, subd. (a)(2)) and orally copulating the victim (Pen. Code, § 288a, subd. (c)(2)), who was his stepdaughter. The jury also found the victim was under the age of 16 at the time the crimes were committed (§§ 261.5, subd. (d) and 288a, subd. (b)(2)). The court sentenced defendant to 32 years in state prison. Defendant contends the trial court violated his Sixth Amendment right to a jury trial by sentencing him to the upper terms for his crimes based upon fact that were not found true by a jury and were not proved to be true beyond a reasonable doubt. Defendant also requests the minute order be amended to reflect his parole revocation fine is $6,400 rather than $10,000. We agree the minute order must be amended, but otherwise affirm.
All further references to code sections will be to the Penal Code unless otherwise noted.
Facts
During a school day in June 2005, the fifteen-year old victim stayed home while her mother was at work. The victim was sleeping in her bed with her three-year old brother when she awoke to the sound of defendant coming into the room. Defendant pulled the victim up by her forearms and pushed her down on her mother’s bed. The victim tried to pull away, but defendant pulled her harder. Defendant said “that he was going to do something to [the victim].” Defendant appeared to be “mad and drunk,” and he told the victim to “let him [put his penis in her vagina] or he was going to take [her] little brother and kill [her] mom,” which caused the victim to be afraid.
Defendant removed the victim’s shirt by pulling it over her head and pulled her shorts down, so that they were completely off of her body. Defendant also removed the victim’s panties. The victim was very afraid, but said nothing because of defendant’s threats. Defendant then removed his own clothes. The victim cried, and defendant threatened her.
The victim tried to leave the bed, but defendant moved on top of her to prevent her from standing up. Defendant placed his mouth on the victim’s breasts and vagina, while the victim continued to cry. Defendant then inserted his penis into the victim’s vagina, which hurt her. Defendant’s actions caused the victim to bleed. After defendant ejaculated, he again threatened the victim by saying that he would “take [her] brother and kill [her] mother.” The victim did not tell anyone about being attacked because defendant appeared drunk and had threatened her family members, all of which frightened the victim.
In August 2005, the victim was sleeping in her bed, with her three-year old brother, after her mother had left for work. The victim awoke to defendant pulling on her forearms and threatening to “take [her] little brother or kill [her] mom,” which caused the victim to be afraid. Defendant smelled of alcohol and pulled the victim to her mother’s bed. Defendant threw the victim on the bed and climbed on top of her. Defendant removed the victim’s shirt and the rest of her clothes. Defendant then inserted his penis into the victim’s vagina, while she cried. Defendant then placed his mouth on the victim’s vagina. The victim felt afraid, but did not tell anyone about the attack, because of defendant’s threats.
In August, the victim noticed that her stomach was growing and that she was no longer menstruating. Defendant gave the victim a girdle and told her to wear it. The victim followed defendant’s instructions, because he continued to threaten “to take [her] little brother, kill her mother, or do something even worse to [the victim].”
In October 2005, the victim was sleeping with her three-year old brother. The victim’s other brothers were at home sleeping, but her mother was at work. The victim awoke to defendant pulling on her hand. Defendant smelled of alcohol, and he loudly threatened the victim. Defendant threw the victim on the bed and removed her clothes. The victim was crying and afraid. Defendant inserted his penis into the victim’s vagina. Defendant then pulled the victim by her hair, forcing his penis into her mouth. The victim did not tell anyone about the attack, because of defendant’s continued threats.
On cross-examination, the victim testified that her brothers were at home during the August incident, rather than during the rape in October.
Defendant testified that the victim was his girlfriend and she wanted to have sex with him, so he complied in June or July 2005. He stated that he did not use force on the victim or threaten her. Defendant denied engaging in intercourse with the victim in August and October 2005. Defendant supported his testimony with a letter written by the victim that expressed the victim’s feelings of jealously over defendant’s relationship with the victim’s mother. The victim testified that defendant forced her to write the letter.
On January 5 or 6, 2006, the victim did not wear her girdle and her mother noticed that she was pregnant. The victim told her mother about being attacked by defendant, and her mother called the police. In March 2006, the victim gave birth to her baby. DNA results revealed that defendant is the father of the victim’s baby.
A jury found defendant guilty of raping the victim in June 2005 and October 2005 (§ 261, subd. (a)(2)). The jury also found defendant engaged in sexual intercourse with a person under the age of 16 in June 2005 and October 2005 (§ 261.5, subd. (d)). The jury concluded defendant forcibly committed oral copulation on the victim in June 2005 and October 2005 (§ 288a, subd. (c)(2)) and engaged in acts of oral copulation with a person under the age of 16 in June 2005 and October 2005 (§ 288a, subd. (b)(2)). The jury found defendant not guilty of raping the victim (§ 261, subd. (a)(2)) or engaging in sexual intercourse with a person under age 16 (§ 261.5, subd. (d)) in August 2005.
The court sentenced defendant to the upper terms for all of his crimes; however, the court stayed the sentences for the convictions related to sexual intercourse with a person under the age of 16 (§ 261.5, subd. (d)) and oral copulation with a person under the age of 16 (§ 288a, subd. (b)(2)), pursuant to section 654.
Discussion
A. Upper Sentencing Terms
Defendant contends that the trial court deprived him of his constitutional right to a jury trial when it sentenced him to the upper terms for his crimes based upon facts that were not found true by a jury and were not proved to be true beyond a reasonable doubt. We conclude the trial court erred, but find that error to be harmless.
1. Defendant Did Not Waive His Right to Challenge the Court’s Imposition of the Upper Terms
Preliminarily we address the People’s contention that defendant waived his right to challenge the court’s decision to sentence him to the upper terms by failing to object at the trial court.
In People v. Sandoval (2007) 41 Cal.4th 825, 837, footnote 4 (Sandoval), the court indicated an objection in the trial court is not required if the objection would have been futile. At the time defendant was sentenced, our Supreme Court’s decision in People v. Black (2005) 35 Cal.4th 1238 (Black I) was controlling. In Black I the court determined the imposition of an upper term sentence did not implicate a defendant’s right to a jury trial. (Id. at p. 1254.)
Since the trial court was bound by the Black I decision, trial counsel cannot be faulted for failing to object to the imposition of the upper terms on the ground the jury should have found the aggravating factors to be true beyond a reasonable doubt. (Sandoval, supra, 41 Cal.4th at p. 837, fn. 4.) Such an objection would have been futile. Accordingly, we conclude defendant did not waive his right to challenge the court’s decision to sentence him to the upper terms.
2. People v. Sandoval
In Sandoval, the court set forth the procedure for reviewing an allegation that the trial court violated a defendant’s Sixth Amendment right to a jury trial by sentencing the defendant to an upper term based upon facts that were not found by a jury to be true beyond a reasonable doubt. (Sandoval, supra, 41 Cal.4th at p. 837.)
The procedure for examining such an allegation begins by determining whether a jury found the facts of the aggravating factor to be true beyond a reasonable doubt. (Sandoval, supra, 41 Cal.4th at pp. 836-837.) If a jury did not find the facts to be true beyond a reasonable doubt, then it must be determined if one of the two recognized exceptions to a jury’s finding is applicable. (Ibid.) The two exceptions are: (1) a defendant’s prior criminal conviction does not need to be found true by a jury; and (2) any facts that the defendant admits and that qualify as aggravating factors do not need to be submitted to the jury. (Ibid.) If a jury did not find the facts of an aggravating factor to be true beyond a reasonable doubt and neither exception is applicable, then it must be concluded that the trial court violated the defendant’s Sixth Amendment right to a jury trial by sentencing the defendant to the upper term. (Ibid.)
In Sandoval, our Supreme Court found the defendant did not have any prior convictions and that she did not admit any of the facts that the trial court relied upon in its finding of aggravating factors. (Sandoval, supra, 41 Cal.4th at pp. 837-838.) Therefore, the court concluded that the trial court violated the defendant’s Sixth Amendment right to a jury trial by not submitting the facts of the aggravating factors to the jury. (Ibid.)
The court then moved to the second part of its analysis: reviewing the trial court’s violation of the defendant’s Sixth Amendment right under the harmless beyond a reasonable doubt standard of review, set forth in Chapman v. California (1967) 386 U.S. 18, 24 [875 S.Ct. 824] (Chapman). (Sandoval, supra, 41 Cal.4th at p. 838.) In determining that it is proper to apply a harmless error analysis to the trial court’s violation of the defendant’s right to a jury trial concerning an aggravating factor, the court relied on prior decisions applying the same standard to a trial court’s failure to instruct a jury on an element of a charged offense and a trial court’s failure to submit a sentencing factor to a jury. (Ibid., citing Neder v. United States (1999) 527 U.S. 1 [119 S.Ct. 1827] [element of the offense]; and Washington v. Recuenco (2006) ___ U.S. ___ [126 S.Ct. 2546, 165 L.Ed.2d 466] [sentencing factor].)
After determining that prior case law supports the use of the harmless error test, our Supreme Court concluded that only one aggravating factor must be established as being consistent with the Sixth Amendment, in order to find a court’s imposition of the upper term to be harmless, despite a court’s reliance on more than one aggravating factor in sentencing a defendant to the upper term. (Sandoval, supra, 41 Cal.4th at p. 839.) This finding originated in the reasoning of Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531] (Blakely), where the high court extended the rule established in Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348], concluding that “the constitutional requirement of a jury trial and proof beyond a reasonable doubt applies only to a fact that is ‘legally essential to the punishment.’” (Sandoval, at pp. 838-839, citing People v. Black (2007) 41 Cal.4th 799, 812 (Black II), citing Blakely, at p. 313.) In Black II the court applied this principle to its finding that there is no Sixth Amendment error where one aggravating factor has been established in accordance with Sixth Amendment requirements, despite the trial court finding facts related to multiple aggravating factors, because only one aggravating factor is legally essential to the imposition of an upper term sentence. (Sandoval, at p. 839, citing Black II,at p. 813.) Therefore, the court concluded, because only one aggravating factor is legally essential to the punishment, any further factfinding engaged in by the trial court beyond that one factor is permitted by the Constitution. (Sandoval, at p. 839, citing Black II, at p. 813.) The Sandoval court applied this reasoning from Black II in its opinion that the court’s factfinding pertaining to only one aggravating factor needs to be found harmless in order to let stand the trial court’s original weighing of the aggravating and mitigating factors. (Sandoval, at p. 839.)
The court created a three-part test for analyzing whether the trial court’s error was harmless.
First, the court examined whether the record contained all the pertinent facts concerning the aggravating factors. (Sandoval, supra, 41 Cal.4th at p. 839.) The court expressed concern that the record might be incomplete because the defendant may have presented more evidence had she known the facts of the aggravating factors would need to be proved beyond a reasonable doubt to a jury rather than to a judge under the lesser standard of a preponderance of the evidence. (Id. at pp. 839-840.)
Second, the court analyzed the language of the enumerated aggravating factors, finding that some contain vague words, such as whether the victim was particularly vulnerable or whether a crime involved damage of great monetary value. (Sandoval, supra, 41 Cal.4th at p. 840.) The court observed that, if the language of the aggravating factor was vague, then the trial court would be more likely to assess the evidence under a subjective standard rather than a clear standard that easily lent itself to review. (Ibid.)
Third, the court considered whether the facts supporting the aggravating factors were contested at trial. (Sandoval, supra, 41 Cal.4th at pp. 840-841.) The court concluded that, if the facts were disputed, then it would be difficult to determine beyond a reasonable doubt how a jury would have interpreted the evidence, for example in Sandoval the “defendant’s state of mind was hotly contested at trial.” (Id. at p. 841.) The prosecution attempted to prove the defendant was guilty of premeditated murder; however, the jury found the defendant guilty of the lesser included offense of voluntary manslaughter. (Ibid.) Based upon the contested facts and the jury’s finding, the court found it would be difficult to determine how the jury would have resolved factual issues concerning aggravating factors related to the defendant’s state of mind, such as whether the defendant acted “callously.” (Ibid.)
None of the aggravating factors cited by the trial court in Sandoval survived the scrutiny of the Supreme Court’s three-part harmless error analysis. (Sandoval, supra, 41 Cal.4th at p. 843.) However, the court concluded that when a reviewing court is examining a similar issue, if it could determine beyond a reasonable doubt that a jury would have found one aggravating factor to be true beyond a reasonable doubt by applying the three-part harmless error analysis, then the trial court’s error of not submitting the aggravating factors to the jury could properly be found to be harmless. (Id. at p. 839.)
3. Sentencing Defendant to the Upper Terms Violated His Sixth Amendment Right to a Jury Trial
In the instant case, when the trial court indicated that it planned to sentence defendant to the upper terms, it found six factors in aggravation that were not submitted to the jury. First, the court found the crimes were committed with a high degree of cruelty. (Cal. Rules of Court, rule 4.421(a)(1).) Second, the court found the victim was vulnerable, based upon the victim being defendant’s stepdaughter and her small stature. (Cal. Rules of Court, rule 4.421(a)(3).) Third, defendant illegally interfered with the judicial process and dissuaded the victim from testifying against him by threatening her. (Cal. Rules of Court, rule 4.421(a)(6).) Fourth, defendant took advantage of a position of trust to commit the offense. (Cal. Rules of Court, rule 4.421(a)(11).) Fifth, the court found defendant “appears to be a danger to society.” (Cal. Rules of Court, rule 4.421(b)(1).) Finally, the court found defendant “was on probation at the time that this happened.” (Cal. Rules of Court, rule 4.421(b)(4).)
In mitigation, the court found that defendant had no prior criminal record. (Cal. Rules of Court, rule 4.423(b)(1).) Due to this conflict in the record, that defendant “was on probation,” but also had no prior criminal convictions, we have examined the record and conclude that it does not support a finding that defendant was on probation at the time the crimes were committed. Defendant’s first criminal conviction, for driving under the influence (Veh. Code, § 23152, subd. (a)), occurred on October 27, 2005; he was granted probation in that case. In the instant case, defendant was convicted of crimes occurring in June 2005 and October 2005. The victim was not questioned about the exact day defendant raped her in October. Consequently, because it cannot be determined what day defendant attacked the victim in October, the record does not support a conclusion that defendant was on probation at the time the crimes were committed.
We conclude the trial court violated defendant’s Sixth Amendment right to a jury trial by sentencing him to the upper terms, because the record does not support a finding that he had a prior conviction at the times the crimes were committed or that he admitted the facts from which an aggravating factor could be inferred.
4. The Trial Court’s Error was Harmless Beyond a Reasonable Doubt
Defendant contends the trial court’s error was not harmless under the “harmless beyond a reasonable doubt” standard set forth in Chapman, supra, 386 U.S. at page 24. We disagree.
We apply the three-factor harmless error test set forth in Sandoval to examine the remaining five aggravating factors found to be true by the trial court. The three factor test consists of analyzing (1) whether the pertinent facts concerning the aggravating factor are included in the record; (2) whether the wording of the enumerated aggravating factor creates a vague or subjective standard; and (3) whether the facts of the aggravating factor were contested, so that it would be difficult to determine how the jury would resolve the dispute. (Sandoval, supra, 41 Cal.4th at pp. 839-841.)
a. Factor No. 1: Defendant Took Advantage of a Position of Trust to Commit the Offense
In citing reasons for imposing the upper sentencing terms, the trial court found “[defendant] assaulted [the victim] from a position of trust.” (Cal. Rules of Court, rule 4.421(a)(11).)
Defendant, the victim, and the victim’s mother testified about the relationship between defendant and the victim. Consequently, we conclude the record contains all the pertinent facts regarding the victim’s and defendant’s relationship, in order to form an opinion concerning this aggravating factor.
The aggravating factor is phrased as follows: “The defendant took advantage of a position of trust or confidence to commit the offense.” (Cal. Rules of Court, rule 4.421(a)(11).) In Sandoval, the court was concerned with the vague wording of several of the aggravating factors, which was created by the use of adjectives, adverbs, and qualifiers, such as “particularly vulnerable” or “great monetary value,” because the court felt those words invoked the need to compare one defendant’s case to another in order to properly assess if a defendant did damage of “great monetary value.” (Sandoval, supra, 41 Cal.4th at p. 840.) We find no such issue with the language of this aggravating factor, because it is not worded in such a way that would require a comparison to a similar case. Accordingly, we conclude the facts related to this factor can be assessed in a straightforward manner. (Ibid.)
Defendant testified that he had been in a relationship with the victim’s mother and living with the victim’s family for “six or seven years.” Defendant further testified that he viewed himself as a father to the children in the house, including the victim. He went on to confirm that the children called him “dad” and that he helped them with their education, “hygiene, nutrition, and clothing.” The victim testified that she referred to defendant as her “stepfather” and that he treated her like a daughter. The victim’s mother stated that her children referred to defendant as “Daddy or Papi,” that defendant was close with the children, and that they respected him. The evidence concerning the parent-child relationship was uncontested.
As this court concluded in People v. Jones (1992) 10 Cal.App.4th 1566, 1577, a parent-child relationship is a classic example of a relationship based on trust. In Jones, the defendant used his position as the children’s biological father to retain custody of the children while he molested them. (Ibid.) In the instant case, defendant used his position in the family to monitor when the victim’s mother would be away at work and when the victim would be sleeping, so that he could attack the victim when she was most vulnerable. We conclude beyond a reasonable doubt that had this aggravating factor been submitted to a jury, it would have found beyond a reasonable doubt that defendant took advantage of a position of trust to commit his crimes, because he was the victim’s stepfather.
b. Factor No. 2: The Victim was Particularly Vulnerable
The trial court found the imposition of the upper terms was reasonable because “[t]he victim was vulnerable[, because b]esides being [defendant’s] stepdaughter, she was particularly petite, small and looks to . . . be 12 years old rather than her stated age.” (Cal. Rules of Court, rule 4.421(a)(3).)
The victim and defendant testified to the victim’s relationship with defendant at the time of the rapes, as well as the circumstances of the incidents. Consequently, we conclude the record contains all the pertinent facts concerning whether or not the victim was particularly vulnerable.
In Sandoval, the court expressed concern over the wording of this aggravating factor, finding that the phrase “particularly vulnerable” calls for “an imprecise quantitative or comparative evaluation of the facts.” (Sandoval, supra, 41 Cal.4th at p. 840.) In Sandoval, the court could not conclude that the victims were particularly vulnerable because there was disputed evidence as to whether the defendant planned to take the victims by surprise and whether the victims or their associates were armed at the time of the killings. (Id. at p. 842.) The court reasoned that if the record reflected “the victims had been elderly, very young, or disabled, or otherwise obviously and indisputably vulnerable[,]” then it could more confidently conclude that they were particularly vulnerable. (Ibid.) We discern that if the evidence of the victim’s vulnerability is clear then it will overcome the subjective language of this aggravating factor.
In a factually similar rape case, the court concluded that one reason for the victims, who were children, being vulnerable was that they “were the defendant’s stepdaughters or the friends of his stepdaughters.” (People v. Jones (1984) 155 Cal.App.3d 153, 187.) In a different rape case, the court found no error in the conclusion that the victims, who were adults, were particularly vulnerable because they were “asleep in [their] darkened residence[s]” at the time of the attacks. (People v. Huber (1986) 181 Cal.App.3d 601, 629-630.)
As noted above, the evidence regarding the parent-child relationship between the victim and defendant was uncontested. The victim’s accounts of being attacked while she slept in her bed with her three-year old brother were disputed by defendant’s testimony that the victim asked him to have intercourse with her in June and his denial that they engaged in intercourse in October; both of defendant’s claims were found to be untrue by the jury. Consequently, taking into consideration the victim’s and defendant’s relationship and manner in which the attacks were initiated, we conclude beyond a reasonable doubt that had this aggravating factor been submitted to the jury it would have found beyond a reasonable doubt that the victim was particularly vulnerable, because she was defendant’s stepdaughter and was sleeping in her home at the time of the attacks.
c. Factor No. 3: Defendant Illegally Interfered with the Judicial Process
In setting forth its reasons for sentencing defendant to the upper terms, the trial court found defendant “threatened [the victim] to dissuade her from going to the police or testifying against him in prosecution . . . .” (Cal. Rules of Court, rule 4.421(a)(6).)
The victim was repeatedly questioned on direct and cross examinations about defendant’s threats and the letter that she testified defendant forced her to write. Defendant also testified about the threats and the letter, denying that he ever threatened the victim or forced her to write the letter. Accordingly, we conclude the record contains all the relevant facts related to this aggravating factor.
The aggravating factor is worded as follows: “The defendant threatened witnesses, unlawfully prevented or dissuaded witnesses from testifying, suborned perjury, or in any other way illegally interfered with the judicial process.” (Cal. Rules of Court, rule 4.421(a)(6).) The language of this factor is objective - it does not contain any adjectives, qualifiers, or comparative language that would require a juror to formulate a quantitative or comparative evaluation of the facts. Accordingly, a review of the facts concerning this factor can be conducted simply and objectively.
The victim testified that in June 2005, after defendant raped her and ejaculated, he continued to threaten her. The threat was not made for the benefit of forcing the victim to comply with defendant’s actions, but rather to stop her from reporting the rape, as evidenced by the timing of the threat. The victim also testified that defendant called her from work to threaten her. The defendant’s version of the facts – that he never threatened or forced the victim – was not found true by the jury as demonstrated by its finding that defendant raped the victim “by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another.” (§ 261, subd. (a)(2).) The victim testified that she did not tell anyone about defendant raping her because defendant’s threats made her feel “[v]ery afraid, because [she] love[s her] mother and [her] brother very much.” The victim testified that she only spoke about the rapes after it became obvious that she was pregnant.
Moreover, the victim testified that defendant forced her to create false documentary evidence by writing a letter that supposedly expressed her feelings of jealously over the relationship between defendant and the victim’s mother. In the letter the victim asked defendant, “[W]ho’s your girlfriend? Me or [my mother]?” The victim also supposedly proclaimed in the letter that she did not like “[defendant] sleep[ing] in briefs” with her mother. It would be a strain for this court to conclude that the jury would have found the victim penned the letter of her free will, because if it had believed she had such feelings for defendant, it would not have found defendant guilty of raping the victim by force. Upon these facts we conclude beyond a reasonable doubt that had this factor been submitted to the jury it would have concluded beyond a reasonable doubt that defendant illegally interfered with the judicial process by threatening the victim, in order to force her to create false evidence and prevent her from reporting the crime.
d. Factor No. 4: The Crimes were Committed with a High Degree of Cruelty
The trial court found the imposition of the upper terms was reasonable because “defendant committed the act[s] with a high degree of cruelty.” (Cal. Rules of Court, rule 4.421(a)(1).)
The trial court referred to defendant’s crimes in the singular, for example the court stated “factors in aggravation or mitigation for the upper term” and “the act” rather than “upper terms” and “acts.” After reviewing the record, we believe the trial court intended to refer to all of defendant’s crimes rather than a single act when discussing its reasons for imposing the upper terms.
The defendant had a meaningful opportunity to present facts negating the cruelty of the crimes, since his defense was based on the argument that the intercourse with the victim was consensual rather than forced. Consequently, we conclude the record contains all the pertinent facts regarding the issue of cruelty.
In Sandoval, the court found the wording of aggravating factors containing adjectives, such as “high degree of cruelty” to be “somewhat vague or subjective,” which would cause a reviewing court difficulty in confidently concluding that “the jury would have assessed the facts in the same manner as did the trial court.” (Sandoval, supra, 41 Cal.4th at p. 840.)
During the June 2005 rape defendant caused the victim pain, caused her to bleed, and forcibly pulled her by her arms; during the October rape he pulled the victim by her hair and hands. The parent-child relationship, the repeated threats, and the multiple criminal acts are all facts we take into consideration; however, due to the vague wording of this aggravating factor and the necessarily subjective analysis that it engenders, we cannot determine beyond a reasonable doubt that the jury would have found beyond a reasonable doubt that defendant committed his crimes with a high degree of cruelty.
e. Factor No. 5: Defendant Appears to be a Danger to Society
One of the reasons the trial court cited for imposing the upper terms was that defendant “appears to be a serious danger to society.” (Cal. Rules of Court, rule 4.421(b)(1).)
We cannot be certain that the record contains all the relevant evidence as to this aggravating factor. For example, had defendant been aware that the facts of this aggravating factor would need to be proved to be true to a jury beyond a reasonable doubt then he might have attempted to present a myriad of evidence regarding his non-threatening nature.
f. Conclusion: The Court’s Error was Harmless
In summary, we have found beyond a reasonable doubt that the jury would have found the facts of the following three aggravating factors to be true beyond a reasonable doubt: (1) defendant took advantage of a position of trust to commit the crimes; (2) the victim was particularly vulnerable; and (3) defendant illegally interfered with the judicial process. Consequently, because we have concluded “beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury,” we conclude that the trial court’s Sixth Amendment error is harmless. (Sandoval, supra, 41 Cal.4th at p. 839.)
B. The Minute Order Must be Amended to Reduce Defendant’s Fine
Defendant requests the minute order be amended to reflect that his parole revocation fine is $6,400 rather than $10,000. The People support defendant’s contention. We agree.
Under section 1202.45, if a defendant’s sentence includes a period of parole, then the parole revocation fine must match the restitution fine.
When the trial court gave its indicated sentence it stated that it planned to impose a $10,000 parole revocation fine and a $10,000 restitution fine. After hearing trial counsels’ arguments, the court reduced defendant’s restitution fine to $6,400. However, the minute order includes the conditions that defendant pay a $6,400 restitution fine and a $10,000 parole revocation fine.
Accordingly, we find the minute order must be amended to reflect that defendant’s parole revocation fine is $6,400, in order to match his restitution fine.
Disposition
We direct the superior court to amend the minute order to note defendant’s parole revocation fine is $6,400. In all other respects, the judgment is affirmed.
We concur: McKINSTER, J., GAUT, J.