Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05F01895
BLEASE, Acting P. J.
A jury convicted defendant Satwan Tony Singh of rape (Pen. Code, § 261, subd. (a)(2)) and three counts of sodomy (Pen. Code, § 286, subd. (c)(2)). The trial court sustained allegations of a prior serious felony and a prior strike and sentenced him to 69 years in prison.
On appeal, defendant contends the charges should have been dismissed due to delay in prosecution, the admission of uncharged sexual misconduct evidence was an abuse of discretion, he was deprived of his due process and confrontation rights by limits on the cross-examination of a prosecution witness, and his upper term sentences violated his Sixth Amendment and due process rights as interpreted in Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856](Cunningham) and Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403](Blakely). We shall vacate the upper term sentences and otherwise affirm.
BACKGROUND
On September 19, 1999, 19-year-old Saundra W. was walking home to her Rancho Cordova apartment from her job at Kinko’s copy shop. Her shift would usually end at 4:00 or 5:00 p.m., and it was still light out. Saundra was walking on the overpass by the Zinfandel exit to Highway 50 and a Cadillac approached her and pulled over. Thinking this was her friend Jason’s car, Saundra walked to the car and started talking to the driver.
She immediately noticed the man driving the car was not Jason, and told him so. The driver said he was Jason, but Saundra replied that he was the wrong one. The driver, whom Saundra identified at trial as defendant, told her she should not be walking home because something bad could happen to her. Defendant put his hand on Saundra’s lower arm and told her “get in the car, and I’ll take you home so that nothing happens to you.” Now feeling that walking home might not be the best thing for her, Saundra got in defendant’s car and gave him directions to get her home.
Defendant drove west on Highway 50, past the exit for Saundra’s apartment complex. Defendant asked her what she did for fun, and Saundra replied she occasionally smoked marijuana and used cocaine a couple of times. They both smoked cigarettes in the car, and defendant got off the freeway and stopped the car in order to retrieve his after he dropped it between the seat and the floor. Saundra did not leave the car, which now was at least five freeway exits from her house, because she did not have money for the light rail fare home and defendant had not yet done anything wrong.
Saundra asked where they were going and defendant answered he was going to pay off a bet to a friend. He drove to Highway 99, where he went south until taking the Florin Road exit. As they talked to each other, defendant told Saundra he was a “baller”, which she took to mean a drug dealer or someone with gang connections, and he “was coming back up or he was getting back into the game . . . .” At some point during the ride defendant told Saundra his name was Tony.
Defendant drove to a house, where Saundra stayed in the car while he talked to a man for a few minutes. He repeated this process at two more houses, driving to the house while having Saundra stay in the car as he talked to someone in each house. Defendant drove to a fourth house, where he told Saundra she could come in with him if she pretended to be his girlfriend. She thought this was unusual, but agreed and went in.
They went to the garage where a “bunch of guys” were sitting at a table. Saundra was offered a beer and she drank about half of it. She did not kiss defendant or act like his girlfriend in any other manner. The men were mostly Hispanic, with one African-American man rolling marijuana joints. Saundra shared some marijuana as it was passed around.
Defendant asked Saundra if she was ready to go home and she said yes. He drove to yet another house, but Saundra did not complain because she thought defendant was seeing another friend. They went straight to the back of the house, and Saundra opened a door to let some air in. A dog looking like a pit bull or boxer had come into the kitchen and defendant put it outside. She remembered seeing a picture of the Last Supper hanging on a wall.
Saundra and defendant sat down at a table. He started moving his chair closer to Saundra, who told him to get no closer than an arm’s length. Defendant moved closer, grabbed her arm, and told Saundra to come with him. Saundra said she did not like that, and defendant loosened his grip and took her to what she thought was his bedroom.
Defendant sat on the bed while Saundra sat on a dresser. After she refused to sit on the bed with him, defendant got up from the bed, grabbed Saundra, and pushed her to the carpet. He kneeled over Saundra, fondled her, pulled down his pants, and had her orally copulate him. After a few minutes, defendant vaginally penetrated her. When she yelled fire in an attempt to divert his attention, defendant hit her across the face and told Saundra he would kill her if she did this again.
Defendant pulled out and penetrated Saundra again less than a minute later. He exclaimed how excited he was by Saundra’s youth, and told her to keep telling him her age. After two to three minutes, defendant said he was done, got dressed, and took Saundra to the living room.
Defendant told Saundra she “was too good, that it wasn’t over yet.” Saundra laid down in order to avoid being hit again, and defendant again climbed on top of her and forced intercourse on her. This lasted about five to eight minutes. Defendant told her how good she was, saying he would not take her home until he was done. He said “Tell me how old you are again. Tell me how old you are. How old are you, bitch?”
Defendant subsequently had Saundra orally copulate him, followed by another instance of vaginal penetration. He then bent Saundra over the couch and sodomized her. Thinking it was over, Saundra said: “Okay. Take me home. Aren’t you done with me yet?” Defendant said no and told her to clean up. Saundra said she could not move, so defendant carried her to the bathroom, where he cleaned her.
Defendant told Saundra she was too good and he was not done with her yet, bent her over the sink, and sodomized her again. At one point, defendant withdrew from her, and bent her over the toilet and sodomized Saundra for a third time. Defendant struck Saundra on the buttocks before either the first or second time he sodomized her.
Defendant eventually washed himself off and wiped Saundra down. Saundra asked if she was going home now, and Defendant replied “yes.” They got in the car and defendant drove to her home.
When they got into the car defendant offered Saundra marijuana, which she accepted. As they drove home, defendant told Saundra he could make a lot of money off her on the streets. Defendant asked her not to tell anybody, and he gave her his phone number. Saundra was dropped off a few blocks from her apartment.
Saundra came to her apartment to find that her boyfriend Brett Nixon was not there. Saundra called Nixon around 11:00 p.m. and told him she had been raped. Nixon drove back to the apartment and found her to be very disheveled, which was unusual for Saundra. They went to the hospital, where she completed a rape kit.
The nurse practitioner who examined Saundra found an imprint of a hand on her buttocks. The nurse also found small tears in the anal area plus bruises and tender areas on Saundra’s arms and neck. Saundra told her that she had consensual sex with Nixon at 1:00 a.m. on the morning of the sexual assaults. Fluids from the rape kit were tested, and defendant’s DNA was found to match. The odds of a random person having the same matching DNA was 1 in 260 billion.
Sharina A. lived with defendant between 1998 and 1999. On New Year’s Eve, defendant got intoxicated and they argued. While they were in the living room, defendant grabbed Sharina by the hair and pulled her into the bedroom. He threw her on the mattress, pinned her with his hands and knees, fondled her, and then sodomized her. Sharina tried to push him off and repeatedly told defendant to stop, but he would not listen. He called her “[b]itch” during the assault.
Sharina did not report the incident to the police because she was ashamed and embarrassed. When the relationship ended, Sharina sought a restraining order against defendant in January of 1999. She checked the sexual assault box on the restraining order form, but did not provide details out of shame and because her family would see it.
Sharina sought a second restraining order in June of 1999, but did not check the box for sexual assault. She reached an agreement with defendant that he would leave her alone if an unrelated criminal matter was dropped. She remembers seeing a picture of the Last Supper on the wall at defendant’s house.
A friend of defendant and defendant’s sister both testified that they never saw a picture of the Last Supper at the family house in which defendant lived. Defendant had two large pit bulls at home and did not have a sliding glass door.
DISCUSSION
I. Preaccusation delay
Defendant contends the charges should have been dismissed for preaccusation delay. Finding that defendant was not prejudiced by the delay and the delay was justified, we reject defendant’s claim.
An unreasonable delay between the time an offense is committed and the time an accusatory pleading is filed may violate both state and federal constitutional due process rights. (Scherling v. Superior Court (1978) 22 Cal.3d 493, 504-505.) To assess a claim of unreasonable delay, the court must balance any prejudice to the defendant against the justification for the delay. (People v. Catlin (2001) 26 Cal.4th 81, 107 (Catlin).) However, the defendant has the initial burden to adduce some evidence of actual prejudice. (Serna v. Superior Court (1985) 40 Cal.3d 239, 250 (Serna).) Speculation based on general claims that witnesses and evidence are unavailable or witnesses’ memories have faded is insufficient. (Shleffar v. Superior Court (1986) 178 Cal.App.3d 937, 946.) We review the trial court’s denial of a motion to dismiss on the ground of preaccusation delay for abuse of discretion. (People v. Morris (1988) 46 Cal.3d 1, 38 [disapproved on other grounds, In re Sassounian (1995) 9 Cal.4th 535, 543-545, fns. 5 & 6].)
Defendant’s crimes were committed on September 19, 1999, and the victim reported them to the police on the same day. The complaint was filed on March 1, 2005. Defendant moved for dismissal based on the delay, and the trial court denied the motion because defendant had not shown actual prejudice.
Defendant contends he does not have to show actual prejudice because prejudice can be presumed from precomplaint delay. The cases he relies on do not support this proposition. Doggett v. United States (1992) 505 U.S. 647 [120 L.Ed.2d 520] involved postaccusation delay between the indictment and trial, which invokes the Sixth Amendment right to a speedy trial rather than a due process claim for delay before accusation. (Id. at pp. 648, 651-652 [120 L.Ed.2d at pp. 526, 528].) Stabio v. Superior Court (1994) 21 Cal.App.4th 1488 addresses a four-year delay between the complaint and trial. (Id. at p. 1490.) Finally, in People v. Hartman (1985) 170 Cal.App.3d 572, the Court of Appeal held “that actual prejudice resulted from the prolonged delay in bringing appellant to trial.” (Id. at p. 580.)
As the California Supreme Court has concluded, a claim of prejudice must be based on more than any speculation about the erosion of memory over time. “Although a lengthy delay, such as that which occurred here, may permit an inference of prejudice since memories fade and witnesses disappear, this is not invariably so. We look therefore to determine whether the accused has demonstrated actual prejudice from a prearrest delay.” (Serna, supra, 40 Cal.3d at p. 250.)
Defendant contends he has also suffered actual prejudice from the delay. He asserts the nearly six and one-half years between the crime and the complaint prejudiced him by eroding his memory of the event and prevented him from finding witnesses from the party he and Saundra attended. Defendant also claims prejudice from the erosion of Saundra’s memory over time, which he asserts prevented him from “fully cross-examining her and thus impeaching her credibility.”
Defendant provides one specific example of where Saundra could not recall events. At trial, the detective-sergeant who interviewed Saundra in 2004 testified that Saundra told her she was “a little nervous and concerned that [defendant] had taken her that far, but that it was kind of exciting at first. And she thought that he was going to take her home when he was done.” Saundra did not remember making this statement when cross-examined.
The jury was able to hear Saundra impeached with the prior statement. She recounted the events before, during, and after the sexual assaults in considerable detail, and was extensively cross-examined by defense counsel. The record does not demonstrate that her memory was so eroded by time as to prejudice defendant.
Defendant’s claim of memory loss is equally unfounded. At the sentencing hearing defendant stated he did not testify at trial because counsel told him not to speak that day. He then told the sentencing court: “[t]he real truth, I know what happened and she knows what happened; but she is not telling it.” Defendant stated to the court that Saundra told him she had been beaten up by the man she was seeing because she had been with her ex-boyfriend. He met her while she was coming home from work and took her to his place because she wanted to buy some marijuana. Defendant concluded, “whatever happened, she did it on her own. It was consensual.” Based on the record before us, we cannot conclude that defendant’s memory was eroded by the delay.
Defendant’s claim that the delay prevented him from finding witnesses who saw him with Saundra at the party is speculative. Defendant, who never identified any witnesses to the party, has failed to show actual prejudice. “We reject defendant’s speculation and consider only the facts for which there was at least an offer of proof.” (People v. Conrad (2006) 145 Cal.App.4th 1175, 1184.)
Even if defendant was prejudiced, the prosecution had good cause for the preaccusation delay. When considering the justification for a delay in bringing charges, we must keep in mind the nature of the prosecutorial function. A prosecutor is not required to, and indeed should not, commence a prosecution until he or she is satisfied that the accused should be prosecuted and that the office of the prosecutor will be able to promptly establish guilt beyond a reasonable doubt. (Catlin, supra, 26 Cal.4th at p. 109.)
Saundra was interviewed by law enforcement soon after the attacks. She did not know the name of her attacker, and could not locate the place where the sexual assaults took place. Although she participated in producing a composite sketch, this was not enough to lead to an arrest.
At the time of the attack, Saundra believed her assailant was a 33-year-old Hispanic male with brown hair and eyes who was five feet, seven inches tall and weighed 200 pounds. Defendant, who was 33 at the time, is a native of Fiji and is five feet, nine inches, and weighs 240 pounds. When the case was reopened in June 2004, detectives checked the phone number defendant gave to Saundra, which led them to a Hispanic man named Ralph Martha.
The lead detective on the case was told that defendant’s DNA, and not Martha’s, matched the DNA from the rape kit on August, 18, 2004. Up until the match was made, the police and prosecutors had no reason to believe defendant was a suspect in the case. While defendant was not charged for more than five months after he was identified, the overwhelming majority of the delay is attributable to the prosecution having no reason to suspect defendant until he was identified by the DNA match.
A criminologist for Sacramento County testified that Sacramento started a “cold hit” program for DNA samples in 2001. Defendant contends the match should have been made in 2001, when the program began, rather than in 2004. Nothing in the record supports a conclusion that the delay was the result of negligence or an attempt to gain a tactical advantage. Investigative resources are limited, and counties have suffered from backlogs in DNA testing. (See Jimenez v. County of Los Angeles (2005) 130 Cal.App.4th 133, 143 [noting the backlog in Los Angeles County].) Sacramento County cannot be expected to conduct cold hit testing in every suitable case as soon as it started the cold hit project.
The prosecution was able to apply its limited resources to reopening the case in 2004. Once it did, it determined that defendant committed the sexual assaults rather than another suspect, and then charged him less than six months later. Any meaningful prejudice to defendant’s case arose from the delay extending over five years before he was identified as a suspect through the DNA match. Balanced against any prejudice suffered by defendant, this delay was justified. We accordingly reject defendant’s state and federal due process claims.
II. Uncharged sexual misconduct testimony
Defendant contends the trial court erred in admitting the uncharged sexual misconduct testimony of Sharina A. under Evidence Code section 1108. We find the trial court properly admitted the testimony under Evidence Code section 1108.
“In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant’s commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352.” (Evid. Code, § 1108, subd. (a).) Evidence Code section 1108 permits the admission of other crimes evidence to show defendant’s propensity or disposition. (People v. Falsetta (1999) 21 Cal.4th 903, 911 (Falsetta).) It does not require the charged and uncharged crimes be similar. (People v. Frazier (2001) 89 Cal.App.4th 30, 40-41; People v. Soto (1998) 64 Cal.App.4th 966, 984.)
Trial courts may admit other sex crimes’ evidence only after a careful weighing process under Evidence Code section 352. (Evid. Code, § 1108, subd. (a).) Evidence Code section 352 permits a court to exclude evidence “if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” Before admitting other sex crimes evidence, “trial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant’s other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense.” (Falsetta, supra, 21 Cal.4th at p. 917.)
In arguing that the evidence should not have been admitted, defendant contends the testimony would be inadmissible under Evidence Code section 1101. He then concludes the evidence was inadmissible under section 352 as too prejudicial. In support of his contention, defendant notes that there was no conviction in the assault against Sharina A., and claims the evidence of the uncharged acts was stronger than the evidence of the charged offenses.
The admissibility of the uncharged acts evidence under Evidence Code section 1101 is not relevant to its admissibility under section 1108. Defendant concedes the evidence was admissible under section 1108, while maintaining it was inadmissible under section 352. Therefore we only address whether the trial court abused its discretion in denying defendant’s Evidence Code section 352 objection to the uncharged sexual misconduct evidence.
We review a trial court order denying a motion to exclude evidence under Evidence Code section 352 for abuse of discretion. (People v. Williams (1997) 16 Cal.4th 153, 213.) “‘A trial court’s exercise of discretion will not be disturbed unless it appears that the resulting injury is sufficiently grave to manifest a miscarriage of justice. [Citation.] In other words, discretion is abused only if the court exceeds the bounds of reason, all of the circumstances being considered. [Citation.]’ [Citation.]” (People v. Green (1995) 34 Cal.App.4th 165, 182-183.)
There were similarities between the charged and uncharged offences. Both involved sodomy and violence, defendant called both victims “bitch,” and there was evidence defendant had been drinking before both assaults. The uncharged sexual misconduct evidence was thus probative as to whether the victim consented to having sex with defendant.
This evidence was minimally prejudicial. “The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. ‘[All] evidence which tends to prove guilt is prejudicial or damaging to the defendant’s case. The stronger the evidence, the more it is “prejudicial.” The “prejudice” referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, “prejudicial” is not synonymous with “damaging.”’ [Citation.]” (People v. Karis (1988) 46 Cal.3d 612, 638.)
The evidence of prior uncharged sexual misconduct was neither stronger nor more inflammatory than the evidence of the charged offenses. The uncharged misconduct evidence was weaker, consisting of only the testimony of Sharina, while Saundra’s testimony for the charged offenses was supported by forensic evidence, including a DNA match, an imprint on her buttock, and bruising which confirmed Saundra’s testimony. The assaults against Saundra were also more severe than the uncharged sexual misconduct. Defendant’s attacks on Saundra were more prolonged than the attack against Sharina, and, unlike the uncharged sexual misconduct, involved a death threat. While the uncharged sexual misconduct evidence may have been damaging to defendant, it was not unduly prejudicial.
We conclude the trial court did not abuse its discretion in admitting the uncharged sexual misconduct evidence over defendant’s objection.
III. Limits on cross-examination
Defendant contends the trial court limited his cross-examination of Sharina in violation of his rights to confrontation and due process. Finding the trial court properly narrowed defendant’s proposed cross-examination under Evidence Code section 352, we reject the contention.
During the Evidence Code section 402 hearing on the uncharged sexual misconduct evidence of Sharina A., defense counsel informed the trial court that he was planning to cross-examine the witness about restraining orders she had obtained against her former boyfriend Marshall L., and her former husband, Eddie D. Defendant offered the restraining order against Marshall to show that Sharina had a pattern of applying for restraining orders and checking the sexual assault box without providing any details. The restraining order against Eddie had nothing to do with sexual assault. The trial court concluded that neither restraining order was relevant because they did not address sexual misconduct involving defendant.
“[A] criminal defendant states a violation of the Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby ‘to expose to the jury the facts from which jurors . . . could appropriately draw inferences relating to the reliability of the witness.’” (Delaware v. Van Arsdall (1986) 475 U.S. 673, 680 [89 L.Ed.2d 674, 684] (Van Arsdall), quoting Davis v. Alaska (1974) 415 U.S. 308, 318 [39 L.Ed.2d 347, 355].)
However, not every restriction of cross-examination amounts to a constitutional violation, and the trial court retains wide latitude in restricting cross-examination that is repetitive, prejudicial, confusing of the issues, or of marginal relevance. (Van Arsdall, supra, 475 U.S. at pp. 678-679 [89 L.Ed.2d at p. 683].) Unless defendant can show the prohibited cross-examination would have produced “a significantly different impression of [the witnesses’] credibility” (id. at p. 680 [89 L.Ed.2d at p. 684]), the court’s exercise of its discretion in this regard does not violate either the Sixth Amendment or the California Constitution. (People v. Frye (1998) 18 Cal.4th 894, 946.)
Defendant was able to cross-examine Sharina about the details of the assault, her delay in reporting it, and the inconsistencies in her requests for a restraining order against defendant. The other restraining orders were no better than tangentially related to the case, as they did not involve defendant. By dragging in alleged misconduct of third parties, the proposed line of cross-examination risked confusing the jury. The trial court was within its discretion to exclude this evidence, and the decision did not violate defendant’s right to confrontation and due process.
IV. Cunningham error
In a supplemental brief, defendant contends his upper term sentences violated his rights to a jury trial and proof beyond a reasonable doubt of any fact used to increase his sentence beyond the statutory maximum. We agree.
Applying the Sixth and Fourteenth Amendments to the United States Constitution, the United States Supreme Court held in Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi), that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum must be tried to a jury and proved beyond a reasonable doubt. (Id. at p. 490 [147 L.Ed.2d at p. 455].) Accordingly, in Cunningham v. California, supra, 549 U.S. ___ [166 L.Ed.2d 856], the United States Supreme Court held that by "assign[ing] to the trial judge, not to the jury, authority to find the facts that expose a defendant to an elevated ‘upper term’ sentence[,]" California's determinate sentencing law "violates a defendant's right to trial by jury safeguarded by the Sixth and Fourteenth Amendments." (549 U.S. at ___ [166 L.Ed.2d at p. 864].)Thus, except for a prior conviction, any fact that increases the penalty for a crime beyond the middle term must be tried to the jury and proved beyond a reasonable doubt.
In sentencing defendant to upper terms on all four counts, the trial court found no mitigating factors and one factor in aggravation, “that the crimes involved great bodily harm and the threat of great bodily harm or other acts disclosing a high degree of cruelty, viciousness, and callousness.” Since the court did not rely on an aggravating factor related to defendant’s prior convictions, imposition of the upper term sentences violated Blakely. The question remains whether the error was harmless.
In People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval), the California Supreme Court stated the test for harmless error (Washington v. Recuenco (2006) 548 U.S. ___ [165 L.Ed.2d 466]) was whether the reviewing court could conclude, “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 . . . ." (Sandoval, supra, at p. 839.)
In Sandoval, the error was not harmless, requiring reversal of the imposition of the upper term and a remand for resentencing. (41 Cal.4th at pp. 840-843, 858.) Our Supreme Court recognized “the reviewing court cannot necessarily assume that the record reflects all of the evidence that would have been presented had aggravating circumstances been submitted to the jury.” (Id. at p. 839.) Since aggravating circumstances are based upon facts which are not elements of the charged offense, a defendant typically lacks the opportunity to challenge these facts at trial. (Ibid.)
While a defendant can contest aggravating factors at sentencing, the sentencing hearing differs fundamentally from the trial. The standard of proof is lower, and the court, which need only rely on a single sentencing factor, has more discretion than the jury. (Sandoval, supra, 41 Cal.4th at pp. 839-840.) The difficulty with finding Blakely error harmless is further compounded when “a potential aggravating circumstance at issue in a particular case rests on a somewhat vague or subjective standard [.]” (Id. at p. 840.)
One reason the Sandoval court rejected a harmless error finding was that the jury implicitly rejected one of the aggravating factors in its verdict. (Sandoval, supra, 41 Cal.4th at p. 841.) The jury here rejected the allegations that defendant inflicted great bodily injury in each count. In addition, the aggravating factor, California Rules of Court, rule 4.421(a)(1), uses relatively vague terms like the phrases “great violence” and “other acts disclosing a high degree of cruelty, viciousness, or callousness.”
Since the jury rejected the great bodily injury allegations, we cannot conclude beyond a reasonable doubt that it would have sustained the “great violence” aggravating circumstance. Consequently, we cannot say the court's error in using this factor was harmless beyond a reasonable doubt and, therefore, we shall vacate defendant's sentence and remand for resentencing under the procedure sanctioned in Sandoval. (Sandoval, supra, 41 Cal.4th at pp. 846-847.)
DISPOSITION
Defendant's conviction is affirmed, but his sentence is vacated and the matter is remanded to the trial court for resentencing in accordance with the procedure set forth in Sandoval, supra, 41 Cal.4th at pp. 846-847.
We concur: RAYE, J., CANTIL-SAKAUYE, J.