Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Los Angeles County Super. Ct. No. MA 029607, Carol S. Koppel, Judge.
Doris M. Frizzell, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Chung L. Mar and Susan Sullivan Pithey, Deputy Attorneys General, for Plaintiff and Respondent.
ROTHSCHILD, JUDGE.
Raymond Vallejo appeals from the judgment entered following a jury trial that resulted in his conviction of committing a lewd act on a child under 14 (Pen. Code, § 288, subd. (a)) and forcible rape (§ 261, subd. (a)(2)). The court sentenced him to the upper term of eight years in prison for violating section 288 and, pursuant to section 654, stayed the sentence for violating section 261. Vallejo contends that under the United States Supreme Court’s recent decision in Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856] (Cunningham), the trial court violated his rights under the Sixth and Fourteenth Amendments to the United States Constitution and erred reversibly by imposing an upper-term sentence based on facts not found by the jury. We disagree and affirm.
All undesignated statutory references are to the Penal Code.
We note that Cunningham’s impact on sentencing in California is currently pending in several cases before the California Supreme Court. (See, e.g., People v. Hernandez, review granted Feb. 7, 2007, S148974; People v. Pardo, review granted Feb. 7, 2007, S148914; People v. Towne, review granted July 14, 2004, S125677, supp. briefing ordered, Feb. 7, 2007.)
BACKGROUND
On the night of August 22, 2003, Vallejo, his girlfriend Sonia P., their baby, and Sonia’s 13-year-old niece, Stacey G., were all staying at a motel in Palmdale. Stacey was there to help care for the baby. Vallejo, Sonia, and Stacey all slept in the only bed in the room.
At around 3:00 a.m., Stacey awoke and found that Vallejo was fondling her breasts. She resisted as he pulled down her underpants and forced vaginal intercourse upon her. After he ejaculated, Vallejo went into the bathroom where Sonia was showering. Stacey fell back asleep.
Later that morning, Stacey called her cousin, asked her to pick her up from the motel, and tearfully told her that Vallejo had raped her. At the motel, the cousin and her mother found Stacey waiting on the sidewalk, looking tired and as though she had cried for a long time. Although Stacey at first resisted their urging to report the incident to the police, she ultimately agreed to report the crime. Later, at the hospital, she was examined by a nurse who found vaginal redness consistent with rape among other possible causes, and obtained a vaginal swab later found to include Vallejo’s semen.
On February 7, 2006, the Los Angeles County district attorney filed an information that charged Vallejo with committing a lewd act on a child under 14 (§ 288, subd. (a)), and forcible rape (§ 261, subd. (a)(2)). At the jury trial, a DNA expert testified that there was only a one in several quadrillions chance that the semen from the vaginal sample could have come from anyone except Vallejo.
The defense elicited testimony that Stacey came from a troubled background, including foster placement, running away from home, and having been raised mostly by her grandmother due to her mother’s substance abuse problems. Sonia testified that Stacey had invited herself to the motel and that Stacey became “touchy-feely” with Vallejo, wanting to sit on his lap until Sonia interceded. Sonia claimed to have seen nothing unusual that night and that Stacey appeared normal the next morning. Sonia testified that Stacey has a history of lying that caused her problems in foster care.
The jury convicted Vallejo of both charges. The trial court denied probation, sentenced Vallejo to eight years in prison, the upper term for violating section 288, and imposed but stayed an eight-year sentence for forcible rape. The court imposed various fines and awarded Vallejo 1,029 days of presentence custody credit.
The court justified the upper-term sentence based on “numerous factors in aggravation” shown in the probation report and the prosecution’s sentencing memorandum. The probation report listed four sustained juvenile petitions for burglary, disturbing the peace at a university, battery, and juvenile violation of probation among numerous other dismissed charges; one prior adult conviction for assault with a deadly weapon; and subsequent convictions for murder and attempted murder. The probation officer found five circumstances in aggravation: (1) the crime involved “great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness”; (2) Vallejo “took advantage of a position of trust or confidence to commit the offense”; (3) Vallejo’s “violent conduct” indicated a “serious danger to society”; (4) Vallejo’s “prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness”; and (5) Vallejo was on probation when he committed the crime. The probation officer identified no mitigating factors. In his sentencing memorandum, the prosecutor cited the first three factors in the probation report and also noted that Stacey was particularly vulnerable and that Vallejo was convicted of aggravated versions of the charged crimes. He, too, identified no mitigating factors
These subsequent convictions arose from an incident on January 3, 2004, which occurred after the rape of Stacey G. but went to trial sooner.
Vallejo timely appealed.
DISCUSSION
Vallejo contends that in selecting the upper-term sentence, the trial court relied on facts not determined by the jury, in violation of the United States Supreme Court’s decisions in Cunningham, supra, 549 U.S. __, and Blakely v. Washington (2004) 542 U.S. 296 (Blakely). We agree that the trial court erred under Cunningham, but we find no reversible error.
We reject, however, the Attorney General’s contention that Vallejo forfeited his Cunningham arguments by not raising them in the trial court. Unlike the defendant in People v. Hill (2005) 131 Cal.App.4th 1089, 1103 (upon which the Attorney General relies), who waived a Blakely challenge by failing to raise it at his sentencing which occurred after Blakely but before People v. Black (2005) 35 Cal.4th 1238 (Black), which Cunningham overruled, Vallejo was sentenced after Black, at which point a Blakely objection would have been futile under controlling law that the court was compelled to follow. Under these circumstances, Vallejo did not forfeit the issue. (See People v. Chavez (1980) 26 Cal.3d 334, 350, fn. 5; City of Long Beach v. Farmers & Merchants Bank (2000) 81 Cal.App.4th 780, 784-785.)
In Cunningham, “the high court held that California’s determinate sentencing law violates a defendant’s Sixth and Fourteenth Amendment right to a jury trial to the extent it permits a trial court to impose an upper term based on facts found by the court rather than by a jury beyond a reasonable doubt.” (People v. Calhoun (2007) 40 Cal.4th 398, 406.) A criminal defendant does not have a right to a jury trial for a sentence based on the fact of a prior conviction, however (see Almendarez-Torres v. United States (1998) 523 U.S. 224, 246), and “courts have held that no jury trial right exists on matters involving the more broadly framed issue of ‘recidivism.’” (People v. Thomas (2001) 91 Cal.App.4th 212, 221-222.) A single aggravating circumstance is sufficient to render a defendant eligible for an upper-term sentence at the judge’s discretion. (People v. Osband (1996) 13 Cal.4th 622, 728-729.) Thus the probation report, showing Vallejo’s various established juvenile petitions and his prior adult violent felony conviction, provided a sufficient ground for the trial court’s selection of an upper-term sentence under California Rules of Court, rule 4.421, subdivisions (b)(2) and (b)(4), that did not require jury findings. (See People v. Lozano (2007) 150 Cal.App.4th 1304, 1308; People v. Sayres (2007) 150 Cal.App.4th 1040, 1045.)
Because the trial court did not identify precisely which factors it considered in selecting the upper term and did not specifically limit those factors to those relating to prior convictions, however, it apparently violated Cunningham by basing the sentence partly on nonrecidivist factors. (See People v. Lozano, supra, 150 Cal.App.4th at p. 1308.) Yet Vallejo argues, and the Attorney General concedes, that Blakely/Cunningham error is not structural, requiring automatic reversal, but rather is subject to the harmless-beyond-a-reasonable-doubt standard set forth in Chapman v. California (1967) 386 U.S. 18. (See People v. Lozano, supra, 150 Cal.App.4th at p. 1308; see also Washington v. Recuenco (2006) 548 U.S. ___ [126 S.Ct. 2546].) The Cunningham error in this case would be harmless if either (1) it is beyond reasonable doubt that the jury would have found to be true all of the nonrecidivist factors upon which the trial court might have relied in sentencing (see People v. Lozano, supra, 150 Cal.App.4th at p. 1309; People v. Diaz (2007) 150 Cal.App.4th 254, 266, or (2) it is beyond reasonable doubt that even absent the nonrecidivist factors, the trial court still would have selected the upper term in sentencing. (See People v. Sayres, supra, 150 Cal.App.4th at p. 1046; People v. Waymire (2007) ___ Cal.App.4th ___, ___ [2007 DAR 5467].)
Although given the violent and violative nature of this crime, Stacey’s vulnerable age, and how Vallejo took advantage of his relationship to her, it is very likely that a jury would have found true all or most of the nonrecidivist aggravating factors upon which the trial court may have relied, we will not second-guess what the jury might have found. (See People v. Diaz, supra, 150 Cal.App.4th at p. 266.) But given Vallejo’s prior adult conviction for a violent felony, his various juvenile crimes, together with the lack of any mitigating circumstances, we find it beyond reasonable doubt that even barring the nonrecidivist factors, the trial court would have selected the upper term in sentencing. (See People v. Sayres, supra, 150 Cal.App.4th at p. 1046; People v. Waymire, supra, ___ Cal.App.4th at p. ___.)
DISPOSITION
The judgment is affirmed.
We concur: MALLANO, Acting P.J., VOGEL J.