Calironia Court Cases - Case Law from CA - California Court

	ROMINGER LEGAL
		California Case Law & California Court Opinions - California Law
					Need Legal Help?
					Need Legal Help?
LEGAL RESEARCH CENTER
LEGAL RESEARCH CENTER			LEGAL HEADLINES - CASE LAW - LEGAL FORMS	NOT FINDING WHAT YOU NEED? -CLICK HERE

This court case was taken from the California Court's web site. Search our site for more cases - CLICK HERE

LEGAL RESEARCH

COURT REPORTERS

PRIVATE INVESTIGATORS

PROCESS SERVERS

DOCUMENT RETRIEVERS

EXPERT WITNESSES

Find a Private Investigator

Find an Expert Witness

Find a Process Server

Case Law - save on Lexis / WestLaw.

Legal News - Legal Headlines

Filed 11/24/04 P. v. Wilson CA1/1
Opinion following rehearing

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

A102205
v.

DARRYEAL WOODROW WILSON,
(Napa County
Super. Ct. No. CR109693)

Defendant and Appellant.

A jury convicted defendant Darryeal Woodrow Wilson of four counts of
committing lewd acts with his six-year-old niece. The sole issue raised on appeal was
whether the trial court abused its discretion in admitting a videotaped police interview of
the niece. We found that the evidence was properly admitted, and affirmed the judgment.
We subsequently granted defendant's petition for rehearing to consider the impact of the
decision in Blakely v. Washington (2004) 542 U.S. ___ [124 S.Ct. 2531] (Blakely), upon
defendant's sentence. We conclude that the principal, upper term sentence of eight years
imposed upon defendant for his conviction in count one must be vacated, and the matter
returned to the trial court for resentencing. In all other respects, we affirm the judgment.

BACKGROUND
Pretrial Proceedings

Defendant was charged by information with four counts of committing lewd acts
upon a child under the age of 14. (Pen. Code, § 288, subd. (a).)1 Count one alleged that
defendant touched six-year-old S.'s vaginal area over her clothing while she was in his
car. Count two alleged that defendant had S. touch his penis. Count three alleged that
defendant rubbed his penis on S.'s body. Count four alleged that defendant penetrated
S.'s vagina. The information further alleged as to count four that defendant had
substantial sexual conduct with the victim. (§ 1203.066, subd. (a)(8).) Defendant
pleaded not guilty to all counts and denied the enhancement allegation.

On February 14, 2003, the prosecution filed a motion in limine to admit the
videotape of a March 14, 2002 interview of S. by Katharine Prim Knutsen of the Napa
Police Department. The prosecution advised that it intended to call S. as a witness at trial
and that it had provided written notice to defendant in December 2002 of its intention to
introduce the videotape at trial. Defendant conceded the admissibility of the statement,
"as long as the child is going to testify." Jury trial commenced on February 18, 2003.
Prosecution Case

In May 2001, defendant visited his sister, D., at her house in Napa. They had not
seen each other for about 20 years. Defendant came to her house about eight times
between November 2001 and February 2002, including visits for Thanksgiving and
Christmas. Each visit lasted two or three days. The last visit occurred on February 25,
2002. During this period, D.'s daughters, six-year-old S. and 16-year-old T., lived with
her. Defendant picked S. up from school a few times while he was in Napa visiting D.
Defendant and S. went to the laundromat alone in defendant's car, a red Mustang. One
evening, D., her boyfriend, defendant, and S. went to the movies in defendant's car. D.
and her boyfriend went to one movie, while defendant and S. saw Cinderella II. When D.

1 Unless otherwise indicated all further statutory references are to the Penal Code.

2

and her boyfriend came out of their movie, defendant and S. were already in defendant's
car.

S. testified that defendant had touched her on her "peepee." She described
defendant touching her "peepee" with his hand at home while he was sitting in the living
room and she was standing. It hurt when he touched her. She could not remember
whether defendant touched her over or under her clothing. S. recalled an incident in
defendant's car when he told her to come to the front seat with him and touched her
"private spot" with his hand. She thought he touched her under her clothes. She could
not remember if defendant ever touched her "peepee" over her clothes in his car. S. also
testified that defendant had her put her hand on his private part over his clothing at her
house. She could not remember if she ever saw defendant's penis, or if he ever touched
her with his penis. She denied that defendant had touched her stomach with his penis.

After S. testified, defense counsel withdrew his concession to the admissibility of
the videotaped interview and sought to exclude it. In an evidentiary hearing conducted
outside the presence of the jury, the trial court viewed the videotape and heard testimony
establishing the circumstances in which the tape was made and recounting out-of-court
statements S. made to others about the alleged molestations. Following the hearing, the
court ruled that the videotape was admissible, and it was played for the jury.

The taped interview occurred on March 14, 2002. Detective Knutsen asked S. if
anyone ever touched her private parts and S. nodded her head. When asked who touched
her private parts, S. responded, "My uncle." When asked her uncle's name, she replied,
"Uncle . . . Darryeal." She said he touched her private parts at her house and in his car.
She described an incident in which defendant picked her up from school after Christmas
and put her hand on his penis over his clothes. S. said defendant sometimes went under
her clothes, but only at the house. S. demonstrated how defendant moved his pelvis up
and down during one incident in which he placed her hand on his penis in the car. S. also
said defendant touched her vaginal area another time when she was in his car. S. also
described an incident at her house when defendant put his hand down the waistband of
her shorts and penetrated her vagina. S. said defendant touched her "peepee" at her

3

house more than 10 times and touched it in his car once. When asked if she ever saw
defendant's penis, S. responded that defendant pulled up her shirt and rubbed his penis on
her stomach in his car. As to that incident, she stated, "I was almost gonna throw up."

D.'s oldest daughter, M.G., who was 30 years old at the time of the trial, testified
that defendant exposed himself and masturbated in front of her several times when she
was around eight years old and defendant was staying in her house. M.G. did not recall
defendant ever touching her in a sexual manner. Defendant's 19-year-old daughter,
A.W., testified that defendant molested her from the time she was 11 or 12 years old until
she was about 17. She testified that he would sometimes touch her breasts and buttocks
both over and under her clothing. A.W.'s mother testified that she immediately separated
from defendant in 2001 and filed for divorce when she found him looking into A.W.'s
bedroom window at night. A.W. did not tell her mother about the molestations until
2002, shortly before the police contacted her concerning S.'s allegations.
Defense Case

Defense counsel elicited testimony from D.'s former boyfriend that he had told
police investigators that D. had not left defendant alone with S., and that defendant had
not been left to baby-sit for S. The boyfriend testified that the only times S. and
defendant were alone was once when she rode in the car with him to do some laundry,
and once when they went to a movie together.

D. testified that she was not aware of defendant ever being home alone with S., or
of defendant picking S. up from school without someone else being present. She further
testified that S. never told her defendant had done anything bad to her.

Defendant called a social worker who testified that S. told her in August 2002 that
she had seen defendant molesting her niece, M. Officer Knutsen testified that during the
videotaped interview, S. volunteered that defendant had "never, ever, ever, ever, ever"
molested M. Knutsen further testified that she conducted a thorough investigation,
including an interview of M., and found no evidence that defendant had molested her.

4

Verdict and Sentence

The jury found defendant guilty on all counts and found the special allegation true.
In its sentencing memorandum, the prosecution pointed out that defendant was ineligible
for probation due to the jury's finding that he had engaged in substantial sexual conduct.
(§ 1203.066, subd. (a)(8).) The prosecution recommended the full aggravated term of
eight years on count one and consecutive terms of one-third the middle term (two years)
on counts two, three, and four. The defendant's sentencing memorandum requested a
mitigated term of three years in state prison with sentences on the three remaining counts
to be stayed pursuant to section 654. The probation report noted five circumstances in
aggravation and none in mitigation. The report recommended that probation be denied
but offered no sentencing recommendation.

At the sentencing hearing on March 28, 2003, the trial court stated that it was
relying solely on two circumstances in aggravation to impose the upper term of eight
years on count one: (1) defendant "took advantage of a position of trust and confidence
to commit each of these offenses" (Cal. Rules of Court, rule 4.421(a)(11)); and (2) each
of the crimes "was carried out in a fashion that would indicate planning, sophistication or
professionalism." (Cal. Rules of Court, rule 4.421(a)(8).)

The court also imposed consecutive sentences of two years on each of the three
remaining counts. In choosing consecutive over concurrent sentences, the court relied on
the following independent, separate reasons: (1) the crimes and their objectives were
predominantly independent of one another (Cal. Rules of Court, rule 4.422(a)(1)); (2) the
crimes were committed at different times and separate places rather than being committed
so closely in time and place as to indicate a single period of aberrant behavior (Cal. Rules
of Court, rule 4.425(a)(3)); (3) defendant has engaged in increasing criminal behavior
dangerous to society (Cal. Rules of Court, rules 4.425(b), 4.421(b)(1)); and (4) during an
interim period when defendant was ostensibly not involved in criminal activity he was in
fact molesting his daughter. (Cal. Rules of Court, rules 4.425(b), 4.421(c), 4.408(a).)

The court accordingly sentenced defendant to a total of 14 years in state prison.
This timely appeal followed.

5

DISCUSSION
Admission of Videotape

Defendant contends the trial court erred in finding that the time, content, and
circumstances of the videotaped interview of S. provided sufficient indicia of reliability
to support introduction of the videotape as substantive evidence that he committed the
charged offenses.

Evidence Code section 1360 provides in relevant part as follows: "(a) In a
criminal prosecution where the victim is a minor, a statement made by the victim when
under the age of 12 describing any act of child abuse . . . performed with or on the child
by another . . . is not made inadmissible by the hearsay rule if [among other prerequisites]
[¶] . . . [¶] [t]he court finds, in a hearing conducted outside the presence of the jury, that
the time, content, and circumstances of the statement provide sufficient indicia of
reliability." (Evid. Code, § 1360, subd. (a).)

A trial court's decision to admit a statement under Evidence Code section 1360
will not be reversed on appeal absent an abuse of discretion. (People v. Brodit (1998)
61 Cal.App.4th 1312, 13291330 (Brodit).) Since defendant makes no claim that
admission of S.'s interview violated his rights under the federal confrontation clause, we
need not render an independent determination of whether "sufficient indicia of
reliability" supported its admission. (See Lilly v. Virginia (1999) 527 U.S. 116, 136
["when deciding whether the admission of a declarant's out-of-court statements violates
the Confrontation Clause, courts should independently review whether the government's
proffered guarantees of trustworthiness satisfy the demands of the Clause"]; People v.
Eccleston (2001) 89 Cal.App.4th 436, 445; People v. Roberto V. (2001) 93 Cal.App.4th
1350, 13731374.)

In reviewing trial court determinations under Evidence Code section 1360,
appellate courts have looked to the following nonexclusive factors: (1) spontaneity and
consistent repetition; (2) mental state of the declarant; (3) use of terminology unexpected
of a child of similar age; and (4) lack of motive to fabricate. (Brodit, supra,
61 Cal.App.4th at pp. 13291330, relying on In re Cindy L. (1997) 17 Cal.4th 15, 2930;

6

see also, Idaho v. Wright (1990) 497 U.S. 805, 821822 [distilling these four factors from
review of state and federal cases].)

In this case, after viewing the videotape, the trial court explained at length its
reasons for concluding that the statement bore sufficient indicia of reliability. First, the
court noted that the interview was conducted on March 14, 2002, which was close in time
to the period when the molestations were alleged to have occurred. Second, the trial
court considered the circumstances of the interview. It took place at Child Protective
Services' office with only the interviewer and the child present. The interviewer took
plenty of time to have the child relax and talk about subjects other than the molestations.
S. played with crayons throughout the interview. The court noted that the interview room
presented a nonthreatening environment, and that the interviewer's questions and
demeanor did not appear to place pressure on S. to provide particular answers.

The court considered the four factors specified in Brodit and Idaho v. Wright. It
found no evidence that S. felt hostility toward the defendant or harbored some other
motive to fabricate. There was also no indication that the child's answers had been
prompted either by the interviewer or anyone else. As to S.'s mental state, the court
observed that she exhibited signs of discomfort and embarrassment in speaking about
what had happened with her uncle, and did not appear to be eager to discuss this subject.
However, she never refused to answer questions or tried to stop the interview.2 In
general, the court found that S.'s mental state, as reflected in the tape, was consistent with
what one would expect from a child victim in these circumstances.

The court noted for the most part, the terminology S. used during the interview
was age-appropriate and did not display any unusual level of sexual knowledge for a six
year old. The court, however, pointed out that such knowledge was demonstrated by S.
in the course of describing the incident in which defendant took her hand and held it on

2 After several minutes of answering questions about the details of what had
happened during each molestation incident, S. asked Knutsen, "Can I go now?" Knutsen
replied that she was "almost done," and went on with the interview.

7

top of his penis. The tape showed her making a pelvic thrusting motion to explain what
the defendant was doing during this incident. The court found the motion to be
"absolutely remarkable" and unexpected coming from a six year old.

Finally, the court considered the consistency between the statements S. made to
the interviewer and other reports she made of the molestations around the same time. At
the evidentiary hearing, S.'s sister, M.G., testified that on March 9, 2002, S. disclosed to
her for the first time that defendant had been touching her. M.G. called another sister,
D.C., and later that day took S. to D.C.'s house. When D.C. asked if defendant took her
clothes off, S. responded, "[N]o, . . . he puts his hands down my pants." S. told her that
when she would sit on defendant's lap, he would put his hands down her pants and
sometimes he would make her touch him. Later, S. told M.G. that defendant had put his
fingers in her "peepee." Neither M.G. nor D.C. asked S. many questions about what
happened for fear of making her more uncomfortable than she already was.

The trial court found that S.'s answers on the interview tape were consistent with
her earlier statements with regard to the essential facts. She consistently stated that
defendant touched her with his hand in her genital area, and she told both the interviewer
and D.C. that he also made her touch him. While S. gave the interviewer more details
about where the incidents occurred and what happened, that was presumably because the
interviewer asked for those details and her sisters did not. Thus, with regard to
spontaneity and consistency, the trial court found no grounds to question the reliability of
the tape.

Defendant argues the trial court abused its discretion by failing to give sufficient
weight to the following indicia of unreliability: (1) the tape did not establish that S.
understood it was morally wrong to tell a lie; (2) S.'s statements on the tape were not
spontaneous because she did not initiate the subject of sexual abuse with the interviewer;
(3) S. was inconsistent because she told the interviewer defendant had placed his penis on
her stomach, but she did not tell her sisters and she denied such conduct occurred when
she testified at trial; (4) S. made inconsistent statements on the tape as to when, where,
and how many times certain acts occurred; and (5) S. volunteered to the interviewer that

8

defendant had never molested her niece M., and then told a social worker several months
later that she had seen defendant molesting M. even though a police investigation failed
to show any such molestation had occurred.

In our view, Detective Knutsen adequately established on the tape that S. knew the
difference between the truth and a lie, and knew that lying was bad and would get her
into trouble.3 That S. did not bring up the subject of sexual abuse on her own does not
show lack of spontaneity. If anything, it merely confirms these experiences were foreign
and unpleasant to her and that she had no agenda to get her uncle in trouble.

Regarding asserted inconsistencies between the videotape and S.'s trial testimony,
we find that S.'s in-court testimony was remarkably consistent with her statements on the
videotape, especially considering her age and the fact she was testifying nearly a year
after the interview. Defendant concedes that S. was consistent in mentioning vaginal
touching to her sisters and the interviewer. The only significant difference between her
in-court testimony and out-of-court statements is that by the time of trial she could no
longer recall the incident in which defendant placed his penis on her stomach. However,
S.'s account of this event on the tape bears, if anything, more indicia of reliability than
her trial testimony.4

The other inconsistencies defendant points to have no bearing on the reliability of
the taped statement. The fact that S. told a social worker several months after the taped
interview that her niece had been molested is irrelevant to whether the tape should have
been admitted. Evidence Code section 1360 instructs the court to focus on the "time,
content, and circumstances" of the recorded statement. (Evid. Code, § 1360,

3 S. responded negatively when Knutsen asked her if it was good to tell a lie, and
told Knutsen she had never told a big lie and her nose would grow long and her mother
would spank her if she did.
4 Most obviously, the tape was made one year closer in time to when defendant
had contact with S. In addition, on the tape S. demonstrated on herself what defendant
did with his penis and then volunteered that she felt like she "was almost gonna throw
up" when it happened. These events would be much easier for a six year old to forget
than to fabricate.

9

subd. (a)(2).) Asserted inconsistent statements made after the interview may be fodder
for cross-examination of the complaining witness, but the trial court was not required to
weigh them heavily on the issue of the tape's reliability.5 The inconsistencies defendant
points to within the videotaped interview are minor and inconsequential in comparison to
the compelling consistencies in S.'s statements. Considering the difficulty in keeping a
six year old's attention and memory focused on one event at a time, and the inherent
ambiguity in the number of times certain acts of molestation actually occurred, the
asserted inconsistencies in no way undermined the reliability of the interview.

The trial court carefully reviewed the videotape in light of all of the factors
identified in the statute and relevant case law, and provided an admirably thorough and
detailed analysis of its reasons for finding the tape reliable. It did not abuse its discretion
in allowing the tape to be played for the jury.
Blakely Issue

We granted rehearing to allow defendant to present argument under Blakely,
supra, 124 S.Ct. 2531, that the trial court erred by imposing upper and consecutive terms
not based upon facts found to be true by the jury beyond a reasonable doubt. Defendant
asserts that without a jury determination of the necessary predicate facts, imposition of
upper and consecutive terms was unauthorized under Blakely and violates his Sixth
Amendment rights.6
The Blakely Opinion

5 We do not mean to imply that a trial court must ignore later-occurring events
that bear directly on the reliability of a recorded statement. For example, if the
complaining witness later recants her videotaped statement, or conclusive proof of its
untruthfulness emerges, Evidence Code section 1360 would not preclude the court from
taking these developments into account. In this case, the subsequently developed
evidence tended to confirm rather than undermine the statement S. made in her interview.
6 The effect of Blakely on California sentencing law is now before the California
Supreme Court in People v. Black, review granted July 28, 2004, S126182, and People v.
Towne, review granted July 14, 2004, S125677.

10

In
Blakely, the United States Supreme Court extended the rule articulated in
Apprendi v. New Jersey (2000) 530 U.S. 466, 490, (Apprendi), that " `[o]ther than the
fact of 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." (Blakely, supra, 124 S.Ct. at p. 2536.) Apprendi involved factual
findings used to support statutory sentence enhancements under a New Jersey hate-
crimes statute. (Apprendi, at pp. 468469.) At issue in Blakely was the determinate
sentencing procedure followed by courts in the State of Washington.
The
petitioner
in
Blakely entered a guilty plea to second degree kidnapping of his
estranged wife in which he admitted domestic violence and use of a firearm, but "no
other relevant facts." (Blakely, supra, 124 S.Ct. at pp. 25342535.) Under the
Washington Criminal Code, second degree kidnapping was classified as a class B felony
that carried a maximum statutory sentence of 10 years. (Id. at p. 2535.) The Washington
sentencing guidelines further limited the presumptive " `standard range' " to 49 to 53
months, but authorized the judge to impose a sentence above the specified range (subject
to the 10-year maximum) upon a finding by a preponderance of the evidence of
" `substantial and compelling reasons justifying an exceptional sentence.' " (Ibid.) At
the sentencing hearing, an "exceptional sentence" of 90 months was imposed, based upon
the trial judge's finding that the petitioner used " `deliberate cruelty' " in the commission
of the offense. (Ibid.)

The court in Blakely expanded upon its prior determination in Apprendi, supra,
530 U.S. 466, and Ring v. Arizona (2002) 536 U.S. 584 (Ring),7 that the right to a jury
trial "is no mere procedural formality, but a fundamental reservation of power in our
constitutional structure" that must be given "intelligible content." (Blakely, supra, 124
S.Ct. at pp. 25382539.) The Sixth Amendment, declared the court, "is not a limitation

7 The petitioner in Ring challenged an Arizona statute authorizing imposition of a
death sentence if the judge found one of ten specified aggravating factors. (Ring, supra,
536 U.S. at pp. 592593.)

11

on judicial power, but a reservation of jury power." (Id. at p. 2540.) The court observed
that "Apprendi carries out this design by ensuring that the judge's authority to sentence
derives wholly from the jury's verdict." (Id. at p. 2539.)

The court in Blakely extended its Apprendi and Ring decisions to hold that a
defendant's constitutional rights have been violated when a judge "imposed a sentence
greater than the maximum he could have imposed under state law without the challenged
factual finding. Apprendi, supra, [530 U.S.] at [pp.] 491497; Ring, supra, [536 U.S.] at
[pp.] 603609." (Blakely, supra, 124 S.Ct. at p. 2537.) It rejected as contrary to
Apprendi the State of Washington's position that "there was no Apprendi violation
because the relevant `statutory maximum' is not 53 months, but the 10-year maximum for
class B felonies." (Ibid.) The court defined "the `statutory maximum' for Apprendi
purposes" as "the maximum sentence a judge may impose solely on the basis of the facts
reflected in the jury verdict or admitted by the defendant. [Citations.] In other words, the
relevant `statutory maximum' is not the maximum sentence a judge may impose after
finding additional facts, but the maximum he may impose without any additional
findings. When a judge inflicts punishment that the jury's verdict alone does not allow,
the jury has not found all the facts `which the law makes essential to the punishment,'
[citation], and the judge exceeds his proper authority." (Ibid.)
Waiver

The People contend that defendant waived any claim of Blakely error by failing to
raise any objection in the trial court to imposition of the upper term and consecutive
sentences under Apprendi. The Apprendi decision predated defendant's sentencing in
this case by three years.

"Claims of error relating to sentences `which, though otherwise permitted by law,
were imposed in a procedurally or factually flawed manner' are waived on appeal if not
first raised in the trial court. [Citation.]" (People v. Brach (2002) 95 Cal.App.4th 571,
577.) "[W]ith certain exceptions, an appellate court will not consider claims of error that
could have been--but were not--raised in the trial court." (People v. Vera (1997) 15

12

Cal.4th 269, 275.) Even constitutional objections must be interposed in the trial court in
order to preserve them for appeal. (See People v. Williams (1997) 16 Cal.4th 153, 250.)

However, not all claims of error are prohibited in the absence of a timely objection
in the trial court. Claims asserting the deprivation of certain fundamental, constitutional
rights may be raised for the first time on appeal. (People v. Vera, supra, 15 Cal.4th at p.
276.) The failure to object to an "unauthorized sentence" also is not subject to the waiver
rule. (In re Birdwell (1996) 50 Cal.App.4th 926, 931.) "[A] sentence is generally
`unauthorized' where it could not lawfully be imposed under any circumstance in the
particular case. Appellate courts are willing to intervene in the first instance because
such error is `clear and correctable' independent of any factual issues presented by the
record at sentencing." (People v. Scott (1994) 9 Cal.4th 331, 354.) A related exception
to the waiver rule is that it "is generally not applied when the alleged error involves a
pure question of law, which can be resolved on appeal without reference to a record
developed below." (People v. Williams (1999) 77 Cal.App.4th 436, 460.)

In the present case, defendant claims deprivation of his fundamental constitutional
rights to jury trial and proof beyond a reasonable doubt. He raises an issue of
constitutional law that we may decide without reference to the particular sentencing
record developed in the trial court. Further, if defendant's position is found to have
merit, the sentence was not lawfully imposed and may be corrected on appeal despite the
lack of an objection in the trial court. Finally, although Apprendi had been decided at the
time of defendant's sentencing, Blakely had not. At the time of defendant's sentencing,
no relevant judicial tribunal had construed Apprendi to require jury determination of facts
used to impose an upper term of imprisonment under a determinate sentencing law
comparable to California's. On all of these grounds, defendant cannot be held to have
waived the Blakely claims he now raises.
Imposition of Aggravated Term

The relevant elements of California's determinate sentencing law (DSL) are set
forth in section 1170. Subdivision (b) of section 1170 states in pertinent part: "When a
judgment of imprisonment is to be imposed and the statute specifies three possible terms,

13

the court shall order imposition of the middle term, unless there are circumstances in
aggravation or mitigation of the crime. . . . In determining whether there are
circumstances that justify imposition of the upper or lower term, the court may consider
the record in the case, the probation officer's report, other reports including reports
received pursuant to Section 1203.03 and statements in aggravation or mitigation
submitted by the prosecution, the defendant, or the victim . . . and any further evidence
introduced at the sentencing hearing." (Italics added.) California Rules of Court, rules
4.421 and 4.423, respectively, articulate the "circumstances in aggravation and mitigation
of an offense. (Judicial Council of Cal., Annual Rep. (1978) p. 3.) [¶] `Facts relating to
the crime' are set forth in subdivision (a), and `facts relating to the defendant' in
subdivision (b), of each rule." (People v. Cheatham (1979) 23 Cal.3d 829, 832833.)
Under rule 4.420(b), "[t]he circumstances utilized by the trial court to support its
sentencing choice need only be established by a preponderance of the evidence." (People
v. Leung (1992) 5 Cal.App.4th 482, 506.)

"[S]ection 1170, subdivision (b) . . . leaves to the lower court a choice . . . as to
whether, even after weighing the aggravating circumstances against the mitigating
circumstances and determining the aggravating circumstances preponderate, it will
impose the upper or middle term as the base term. The statute does not mandate a
selection by the court of either of those terms under any particular circumstances, but
mandates only selection of the middle term in the absence of aggravating or mitigating
circumstances." (People v. Myers (1983) 148 Cal.App.3d 699, 704.)

The specification of a presumptive middle term brings the California DSL into
conflict with Blakely, and invalidates the imposition of an upper term upon defendant.
Under section 1170, subdivision (b), three possible terms of imprisonment for each
offense are specified, but the sentencing court may not impose the upper term without a
finding by a preponderance of the evidence--rather than beyond a reasonable doubt--
that circumstances in aggravation are established by a preponderance of evidence and
outweigh circumstances in mitigation. (People v. Wright (1982) 30 Cal.3d 705, 709
710.)

14

Thus, while the upper term is the most severe sentence the court may select for the
commission of a particular offense, the maximum penalty the court has authority to
impose under the California DSL without finding additional facts is the middle term.
(People v. Butler (2004) 122 Cal.App.4th 910, 918; People v. Lemus (2004) 122
Cal.App.4th 614, 621; People v. George (2004) 122 Cal.App.4th 419, 425.) To select an
upper term, the sentencing court does not merely consider sentencing factors before
exercising discretion, as occurs with the choice of a consecutive or concurrent term, but
rather must find circumstances in aggravation that outweigh circumstances in mitigation.
(People v. Wright, supra, 30 Cal.3d at pp. 709710.)

Under the DSL a sentencing judge cannot make the discretionary decision to
increase a sentence above the middle term without first finding "facts to support it
beyond the bare elements of the offense"; the verdict alone does not authorize the
sentence. (Blakely, supra, 124 S.Ct. at p. 2538, fn. 8.) With the requirement of a
predicate finding before an upper term may be imposed, the sentencing scheme thus
violates the directive in Blakely that the " `statutory maximum' is not the maximum
sentence a judge may impose after finding additional facts, but the maximum he may
impose without any additional findings." (Blakely, at p. 2537; People v. Butler, supra,
122 Cal.App.4th at pp. 917918.)

In this case, the eight-year upper term sentence imposed on defendant on count
one was based on facts found by the trial court based on a preponderance of the
evidence--that defendant took advantage of a position of trust and confidence to commit
the crimes and that he carried them out in a fashion that would indicate planning,
sophistication or professionalism. Under Blakely, defendant was entitled to a midterm
sentence absent findings beyond a reasonable doubt by the jury of these or other facts
supporting judicial imposition of an upper term sentence under the DSL.
Consecutive Sentences

The trial court's selection of consecutive subordinate terms of imprisonment
presents issues that are entirely distinct under Blakely from those raised by imposition of
an aggravated, upper term sentence.

15

A concurrent term is not a specified presumptive or standard maximum sentence.
Section 669 provides that when a defendant "is convicted of two or more crimes, whether
in the same proceeding or court or in different proceedings or courts," the sentencing
court "shall direct whether the terms of imprisonment or any of them to which he or she
is sentenced shall run concurrently or consecutively." (See also People v. Downey (2000)
82 Cal.App.4th 899, 912913.) Section 669 thus imposes a mandatory duty upon the trial
court to determine whether the terms of imprisonment for multiple offenses are to be
served concurrently or consecutively, but the choice of a consecutive or concurrent term
is entirely discretionary with the trial court based upon consideration of the sentencing
criteria set forth as guidelines in rule 4.425 of the California Rules of Court. (People v.
Jenkins (1995) 10 Cal.4th 234, 255256; In re Calhoun (1976) 17 Cal.3d 75, 8081.)
"[T]he provisions of rule [4.425] are merely . . . . guidelines, not rigid rules courts are
bound to apply in every case . . . ." (People v. Calderon (1993) 20 Cal.App.4th 82, 86
87.) "While there is a statutory presumption in favor of the middle term as the sentence
for an offense (§ 1170, subd. (b)), there is no comparable statutory presumption in favor
of concurrent rather than consecutive sentences for multiple offenses except where
consecutive sentencing is statutorily required." (People v. Reeder (1984) 152 Cal.App.3d
900, 923.)

Therefore, either a consecutive or concurrent term is within the trial court's
discretion if the defendant has been found guilty of multiple crimes by the jury. The
sentencing court need not make any additional finding of fact to impose a consecutive
sentence. The jury verdict, not any additional finding of fact by the trial court, justifies
the imposition of a consecutive term. (People v. Shaw (2004) 122 Cal.App.4th 453, 459.)
A consecutive term imposed under California law is a discretionary sentence choice that
does not increase the penalty beyond the prescribed statutory maximum, and is not
tantamount to an Apprendi enhancement or a Blakely exceptional sentence. (See People
v. Sample (2004) 122 Cal.App.4th 206, 227; People v. McPherson (2001) 86 Cal.App.4th
527, 532; People v. Farr (1997) 54 Cal.App.4th 835, 843.)

16

We therefore conclude that defendant was not denied his due process rights to a
jury trial and finding of guilt beyond a reasonable doubt under Blakely by the trial court's
selection of a consecutive subordinate term. (People v. Shaw, supra, 122 Cal.App.4th at
p. 459; People v. Sample, supra, 122 Cal.App.4th at p. 227.)
Prejudice

We follow the federal standard of review of constitutional errors (Chapman v.
California (1967) 386 U.S. 18, 24), and must reverse the sentence unless it appears
beyond a reasonable doubt that the assumed error did not contribute to it. (People v. Neal
(2003) 31 Cal.4th 63, 86.)

Here, each of the sentencing factors relied upon by the trial court to impose the
upper term related to the current offenses. Factors having to do with recidivism--a
recognized exception from the right to a jury trial articulated in Apprendi--played no role
in the trial court's imposition of an aggravated term. Although defendant admitted to
four misdemeanor convictions occurring 32 years before his current convictions, we
cannot say that this factor alone would have supported an upper term sentence.

We also cannot say with confidence that had the jury been asked to find beyond a
reasonable doubt that the defendant took advantage of a position of trust and confidence,
or that he acted in a fashion showing planning or sophistication, that it would have done
so. It is not possible to say beyond a reasonable doubt that the jury would have made
these or other findings sufficient to support an aggravated term had the existence of these
factors been reserved for the jury's determination.
Thus,
under
Blakely the denial of the right to a jury trial and findings on the
aggravating circumstances that resulted in the imposition of the upper term on count one
must be considered prejudicial to defendant. (People v. Lemus, supra, 122 Cal.App.4th
at p. 622.) Accordingly, we vacate that portion of the judgment and remand the matter
for resentencing.
DISPOSITION

The upper term sentence of eight years imposed upon count one is vacated and the
case is remanded to the trial court for the limited purpose of conducting sentencing

17

proceedings in accordance with the requirements of Blakely.8 In all other respects the
judgment is affirmed.

_________________________

Margulies, J.

We concur:

_________________________
Marchiano, P.J.

_________________________
Swager, J.

8 We note that the People, no less than the defendant, have the right to a jury trial
in criminal proceedings. (People v. Willis (2002) 27 Cal.4th 811, 814; People v. Wheeler
(1978) 22 Cal.3d 258, 282, fn. 29.)

18