P. v. Gonzalez

Filed 6/26/07 P. v. Gonzalez CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Patrick Donahue, Judge. Affirmed and remanded for resentencing.

Robert E. Boyce, 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, Assistant Attorney General, Peter Quon, Jr., and Lilia E. Garcia, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

INTRODUCTION

Defendant Salvador Flores Gonzalez appeals from the judgment entered after a jury found him guilty of lewd or lascivious acts with a child under 14 years of age, false personation, child annoyance, indecent exposure, and failure to register as a sex offender.

Defendant contends the trial court abused its discretion by (1) allowing testimony describing the facts and circumstances surrounding defendants conviction for rape in 1999 because its probative value was substantially outweighed by its prejudicial impact; (2) admitting his postarrest videotaped interviews with police officers because the interviews improperly contained the officers opinions about defendants intent, guilt, and truthfulness, and because defendant was not provided a Spanish‑speaking interpreter at the time he was read his rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) at the beginning of the interviews; and (3) allowing the interviewing police officers to testify about their opinions on the issue of defendants intent, guilt, and truthfulness.

Defendant also contends the trial court erred by imposing an upper term sentence and consecutive sentences, based on facts not admitted or found true by a jury beyond a reasonable doubt.

We affirm. The trial court did not err by admitting evidence regarding defendants 1999 rape conviction under Evidence Code section 1108 because its probative value was not substantially outweighed by its prejudicial impact. Defendant did not object to the introduction of the videotaped interviews on the ground that they contained the officers opinions. In any event, the videotaped interviews were properly admitted after the jury was instructed not to consider any facts, concerns, or insinuations or opinions in the questions asked as true. Defendant did not object to the interviewing officers testimony at trial. Even assuming defendant has not waived objections to the testimony, the testimony did not include opinions about defendants intent, guilt, or truthfulness; the testimony merely explained why the officers asked defendant certain questions.

The record does not show defendant required an interpreter when he was read his rights under Miranda during his postarrest interviews with police officers.

In light of the United States Supreme Courts recent decision in Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856] (Cunningham), we remand for resentencing on the sole ground the trial court imposed an upper term sentence based on aggravating circumstances found true by the court rather than by a jury beyond a reasonable doubt.

BACKGROUND

I.

The Charged Offenses

On August 25, 2004, a group of about 20 girls, including Amanda J., Kathryn M., M.B., and Laura H., gathered at the beach for a party celebrating Allie G.s birthday. Several of the girls went into the water. While in the water, 12‑year‑old Amanda felt splashes of water and movement behind her. She turned and saw defendant swimming toward her. She felt his hand brush across her pubic area. She saw defendant smirk at her while raising his right eyebrow. Defendant did not apologize or otherwise say anything to her. He appeared to be alone. She saw him move in the direction of a few of the other girls from the party, who were in the water, including 13‑year‑old Kathryn.

Kathryn saw defendant swimming toward her. She felt his arms and hands touch her legs around her knee area. She saw defendant smiling. Two minutes later, she saw him swim toward M.B. with his hands and arms stretched out toward M.B.s legs; his eyes were open. Kathryn said, M[.B.], look. M.B. looked down, moved away quickly, and screamed.

Twelve‑year‑old Laura was playing in the water when she noticed defendant splashing around alone. While Laura was on top of her boogie board, defendant came over and touched [her] butt. She heard him say something under his breath like hey or hey, babe right after he touched her. She turned around and saw him move away.

Shortly thereafter, Laura saw defendant doing flips in the water. She saw defendants penis sticking out of the hole in the boxer shorts he was wearing. Kathryn also saw defendant flipping in the waves and saw his penis through the hole in his boxer shorts; he was looking and smiling at some of the girls.

Amanda, Kathryn, M.B., and Laura got out of the water and told Allies father what had happened. Allies father talked to the lifeguard, who contacted the police. Detective William Beverly responded to the scene and arrested defendant. He was later interviewed by Beverly and also by Officers Kristen ODonnell and John Hougan.

Defendant was charged in an information with (1) two felony counts of committing a lewd act upon a child under 14 years of age, in violation of Penal Code section 288, subdivision (a) (counts 1 and 2); (2) false personation, a felony, in violation of section 529, subdivision 3 (count 3); (3) misdemeanor child annoyance, in violation of section 647.6, subdivision (a) (count 4); (4) misdemeanor indecent exposure, in violation of section 314, subdivision 1 (count 5); and (5) felony failure to register, in violation of section 290, subdivision (g)(2) (count 6). The information further alleged, pursuant to section 667, subdivisions (a)(1), (d), and (e)(2)(A), section 1170.12, subdivisions (b) and (c)(2)(A), and section 1192.7, that defendant previously suffered the following serious and violent felony convictions: (1) in 1992, he was convicted of first degree burglary; and (2) in 1999, he was convicted of rape by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another.

II.

The Prior Sexual Offense

The trial court granted the prosecutions motion to admit evidence under Evidence Code section 1108, relating to defendants prior conviction for the rape of Kim T. At trial, Kim testified that in 1999, she was living in a house in Garden Grove. One day, Kims landlady and Kim went out to look for someone who could help them paint Kims bedroom. They drove up to a group of people standing outside a Home Depot; Kim believed the people there were looking for work. Kim picked defendant for the job, and Kim and her landlady took him back to the house. Defendant helped Kim and her landlady paint the room. Kim testified that while they painted, she noticed defendant looking at her. After the job was done, defendant was paid and Kim drove him home.

One or two days later, Kim had just taken a shower and was walking into her bedroom when she saw defendant standing at her bedroom door. She asked him why he was there and he did not say anything; he started to approach her. She yelled for help and told him to go home. He forced her down onto the bed. She pushed him back and ran away from him around the room. She got tired and defendant again forced her down. She bit him and scratched him, but he was able to pin her down and rape her.

Defendant pleaded guilty to raping Kim in 1999, and agreed to serve three years in prison for that crime. He was paroled on August 8, 2002, and was thereafter deported. He returned to the United States in December 2003. He did not register as a sex offender. The jury was instructed with CALJIC No. 2.50.01 regarding how they should consider the evidence related to defendants prior rape conviction.

III.

Defendant Is Convicted of the Charged Offenses and Sentenced

The jury found defendant guilty on all six counts. The trial court found true the prior conviction allegations contained in the information. The court sentenced defendant to a total prison term of 31 years four months, calculated by imposing (1) double the upper term of eight years on count 1; (2) one‑third the middle term on count 2 (four years), to run consecutively to count 1; (3) double one‑third the middle term on count 6 (16 months) to run consecutively to count 1; (4) a middle term of four months on count 3, to run concurrently to count 1; (5) time served for counts 4 and 5; and (6) a total of 10 years for the serious felony prior convictions, also to run consecutively.

Defendant appealed.

DISCUSSION

I.

The Trial Court Did Not Abuse Its Discretion by Admitting Evidence of Defendants Prior Sexual Offense.

Evidence Code section 1108, subdivision (a) provides that evidence of the defendants commission of another sexual offense is admissible if the evidence is not inadmissible pursuant to Section 352. Section 352 grants the trial court discretion 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.

The California Supreme Court, in People v. Falsetta (1999) 21 Cal.4th 903, 916‑917, stated the trial courts careful weighing process under [Evidence Code] section 352, before admitting evidence under section 1108, involves consideration of a sex offenses 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 defendants other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense.

Defendant contends the trial court abused its discretion by admitting Kims testimony and the testimony of Timothy Kovacs, the police officer who arrested defendant for the rape. Defendant argues their testimony had limited probative value in light of the lack of similarity between defendants rape of Kim and the charged offenses at issue in this case. He further argues their testimonys limited probative value was substantially outweighed by its inflammatory nature involving lengthy and extended testimony which was likely to confuse the jury.

We review the trial courts decision to admit Kims and Kovacss testimony for an abuse of discretion. (People v. Kipp (2001) 26 Cal.4th 1100, 1121; People v. Williams (1997)16 Cal.4th 153, 213.) Kims and Kovacss testimony, as prior sexual offense evidence, could be considered for any proper purpose, such as establishing defendants motive [or] intent, . . . or bolstering the young victims credibility. (People v. Falsetta, supra, 21 Cal.4th 903, 922.) Defendants defense against the charged offenses in this case has been that his contacts with Amanda, Kathryn, M.B., and Laura in August 2004 were accidental, and thus evidence of his prior rape was probative on the issues of his intent and witness credibility.

Although the charged offenses and the prior offense are not similar beyond the fact they constitute sexual offenses within the meaning of Evidence Code section 1108, they need not be sufficiently similar that evidence of the latter would be admissible under Evidence Code section 1101, otherwise Evidence Code section 1108 would serve no purpose. It is enough the charged and uncharged offenses are sex offenses as defined in section 1108. (People v. Frazier (2001) 89 Cal.App.4th 30, 40‑41.)

The California Supreme Court has stated that the probative value of other crimes evidence is increased by the close proximity in time of the charged offenses and the prior offenses, and the independent sources of evidence (the victims) in each offense. (People v. Falsetta, supra, 21 Cal.4th at p. 917.) Here, the charged offenses and the prior offense occurred within a relatively short period of time. Defendant committed the prior offense in 1999, for which he was sentenced to three years in prison. He was paroled in August 2002 and deported. He returned to the United States in December 2003 and committed the acts underlying the charged offenses in August 2004. This is not a case where the proffered prior offense evidence under Evidence Code section 1108 constituted a 23‑year‑old prior offense, as in People v. Harris (1998) 60 Cal.App.4th 727. In addition, the evidence supporting the charged offenses (the testimony of Kathryn, Amanda, M.B., and Laura) is completely independent of the evidence of the prior offense (the testimony of Kim and Kovacs).

Defendant does not explain how Kims and Kovacss testimony confused or distracted the jury, and the record does not support his argument. Kims and Kovacss testimony was relatively briefroughly 110 pages out of 500 pages of testimony. The jury was informed that defendant was convicted and punished for the rape he committed in 1999, eliminating the risk the jury would find him guilty of the charged offenses as punishment for an unpunished prior offense. Furthermore, the jury was properly instructed with CALJIC No. 2.50.01 regarding the proper use of evidence of prior sexual offenses.[1]

Citing People v. Harris, supra, 60 Cal.App.4th 727, defendant contends evidence of the 1999 rape was inflammatory and should have been excluded. The evidence defendant raped Kim is serious and no doubt was damaging to defendants case. But Evidence Code section 1108 specifically permits the admission of prior sexual offenses. Kims testimony was direct and matter‑of‑fact. Kim testified defendant approached her, struggled with her, and ultimately forced her down onto the bed and raped her. She testified she felt pain and sustained bruises, felt afraid, and cried after defendant left, but she did not otherwise provide graphic details.

This case is factually distinguishable from People v. Harris, in which the trial court abused its discretion by admitting evidence of a 23‑year‑old prior offense involving sexual mutilation in a case not involving sexual mutilation. The Harris court stated, [t]he charged crimes involving a breach of trust and the taking advantage of two emotionally and physically vulnerable women are of a significantly different nature and quality than the violent and perverse attack on a stranger that was described to the jury. The version that the jury heard, while not as gruesome as the actual incident, was an incomplete and distorted description of an event that did not actually occur. As disturbing as the actual incident was, it was at least coherent, while on the other hand, the crime testified to by the officers must have caused a great deal of speculation as to the true nature of the crime. [] The inflammatory and speculative nature of the evidence weighs sharply in favor of exclusion. (People v. Harris, supra, 60 Cal.App.4th at p. 738.)

We therefore conclude the trial court did not abuse its discretion by admitting the evidence regarding defendants prior rape conviction.

II.

The Trial Court Did Not Abuse Its Discretion by Admitting into Evidence Defendants Postarrest Interviews.

After he was arrested, defendant was separately interviewed by Beverly, ODonnell, and Hougan. Each videotaped interview was played for the jury at trial. Defendant contends the trial court erred by admitting the videotaped interviews into evidence because (1) the interviews contained the officers opinions about defendants intent, truthfulness, and guilt, and the officers testimony at trial improperly reiterated those opinions; and (2) the arresting officer did not use an interpreter to read defendant his Miranda rights. For the reasons discussed post, defendants arguments are without merit.

A.

The Trial Court Did Not Abuse Its Discretion by Allowing the Prosecution to Play Defendants Videotaped Interviews and Allowing the Interviewing Officers Testimony About the Interviews.

Defendant contends the trial court erred by permitting the jury to view defendants videotaped interviews because, during the interviews, the detectives were permitted to express opinions about [defendant]s guilt, his propensity to commit sexual crimes, and opinions [defendant] was not telling the truth. Defendant cites the following as examples of what he contends constitute improper content in the interviews: (1) Beverly asked defendant what did you gate at, to determine defendants assigned threat level in prison; (2) Beverly asked defendant how he got off so light for raping Kim; (3) Hougan asked defendant if he had intended to take one of the girls away from the beach and rape her like he had done before; (4) Hougan stated that he knew defendant committed the offenses and the question that remained was why defendant did it; and (5) all three officers stated or implied defendant was not telling the truth and no one would believe him.

Defendant did not object to the trial court admitting the videotaped interviews into evidence on those grounds. At no time did defendant request that the trial court redact the videotaped interviews to exclude those comments.[2] We do not need to decide whether defendants argument is waived because, in any event, it lacks merit.

At defendants request, before the first videotaped interview was played for the jury, the trial court admonished the jury as follows: Youre about to see an audio, videotape of an interview with the defendant. Do not consider any facts, concerns, or insinuations or opinions in the questions asked as true. You may consider the questions only for their affect of the witness or to the extent they [il]luminate the response. [] Do not allow the facts, concerns, or opinions in the questions, if any, to substitute for any element of any alleged crime for which there is no evidence presented in court. [] However, you may consider the responses to the questions in your deliberations and to give them the weight you feel that they are entitled. (Italics added.) The jury was further informed that they would be viewing a number of videotapes during the trial. The jury was given this instruction again at the end of trial.

Defendant contends, [n]o jury could disregard repeated and emphatic statements by three officers in three separate interviews that [defendant] was lying, the girls were telling the truth because of [defendant]s prior history and that [defendant] planned to do things much more serious: get one of the girls away from the beach and rape her. But as discussed ante, the jury was specifically instructed not to consider any facts, concerns, insinuations, or opinions in the questions asked as true and we presume the jury followed the instruction. (People v. Bryden (1998) 63 Cal.App.4th 159, 184 [jury presumed to follow courts instructions].)

Hougans testimony at trial reinforced the importance of the courts instruction to the jury on this point. During cross-examination, Hougan stated that he has been trained to lie as an interviewing technique designed to elicit truthful responses. Hougan testified, as follows:

Q Would you say to [defendant] that everybody saw him touch these girls if that was not true?

A Sure I would say that.

Q You would? Why would you say that?

A To elicit a truthful response.

Q You would tell him a lie to elicit a truth?

A Absolutely.

Q In your mind is it okay for an interviewer to lie to a suspect?

A Yes, it is.

Q And youre trained to do that, right?

A Yes.

Defendant argues that the courts instruction to the jury was not sufficient to ensure that the jury would not accept the officers comments as true, citing People v. Aranda (1965) 63 Cal.2d 518, 530‑531 and Bruton v. United States (1968) 391 U.S. 123, 137. Defendants reference to People v. Aranda and People v. Bruton is inapt. Aranda and Bruton stand for the proposition that a nontestifying codefendants extrajudicial self-incriminating statement that inculpates the other defendant is generally unreliable and hence inadmissible as violative of that defendants right of confrontation and cross-examination, even if a limiting instruction is given. [Citation.] Aranda and Bruton found that a limiting instruction was insufficient to cure the confrontation clause problem because accusations from a codefendant are so inherently prejudicial that a jury cannot be trusted to ignore them when considering the guilt of the defendant, even when specifically instructed to do so. (People v. Jennings (2003) 112 Cal.App.4th 459, 471.) This case does not involve a nontestifying codefendants extrajudicial statement. Defendants argument is without merit.

Defendant also cites People v. Sanders (1977) 75 Cal.App.3d 501 to challenge the trial courts admission of the videotaped interviews and testimony about the interviews. In People v. Sanders, the trial court erred by admitting into evidence an officers statements made during an interrogation of the defendant because they consist[ed] in substantial part of narrative statements by [the officer] which embraced a multitude of facts and were not even in question form. (Id. at p. 507.) Furthermore, the officers narrative statements reiterated information he had received from third parties and the admission of such statements enabled the People to rehabilitate some of their badly impeached witnesses in impermissible fashion. (Id. at pp. 507‑508.) People v. Sanders has no application here.

Finally, defendant contends the trial court abused its discretion by admitting testimony by Beverly and Hougan in which they improperly opined on defendants intent, guilt, or truthfulness. Defendant cites Beverlys testimony that he asked defendant about his threat level in prison, and Hougans testimony he suggested to defendant he might have intended to rape one of the girls in August 2004, and that he did not believe defendant was being truthful during one of the interviews. We conclude the trial court did not abuse its discretion by admitting the officers testimony on these issues at trial.

After the jury had viewed Beverlys interview with defendant, the prosecutor asked Beverly, [i]n the interview that you had with the defendant, you asked a couple of times, what did you gate at? What does that mean? Defense counsel did not object to the prosecutors question. Beverly testified, [i]t is prison slang for determining what threat level a prisoner is when they go to prison. And that it helps [him] gauge a person. The trial court interjected, Okay. As to the levels of custody and the 115 offenses, I am going to instruct that that is just for the purposes of explaining what that means on the tape, but it is not to be used as evidence of the defendants guilt in this matter. The fact that he may have picked up some violations of some prison rule or the fact that at whatever level he is in prison is not evidence that he is guilty in this case. Beverlys testimony did not opine on issues of defendants intent, guilt, or truthfulness; rather, it merely provided some context for references made during his interview with defendant.

During cross‑examination, Hougan did not testify about whether defendant intended to take one of the girls away from the beach and rape her like he did before. Defense counsel read the portion of the interview where Hougan asked defendant this question, and then asked Hougan whether by asking such a question he put defendant in the position of being tempted to untruthfully admit to doing something lesser than rape in order to satisfy Hougan. Hougan testified he would be speculating about defendants thoughts and he did not put defendant in the position of admitting to something he did not do in order to escape a greater charge.

Defense counsel also asked Hougan why he continued to ask defendant during the interview whether he touched the girls even after he denied touching them, and if it was because Hougan was not satisfied with defendants denial. Defense counsel asked, [i]n fact, you werent going to be satisfied until he admitted touching those girls; isnt that also true? The following colloquy ensued.

A I was going to be satisfied when I felt the defendant was telling the truth. And at that point I dont feel he was telling the truth. I thought his appearance was with his head down. He wouldnt have eye contact. He often cried. He appeared to be shameful. He paused to think about his answers. There was several things like that that led me to believe he wasnt telling the truth.

Q So youre basing this on your feeling, right?

A Based on my feeling and based on my training and experience over 16 years, yes.

Defense counsel elicited Hougans opinion about defendants truthfulness at a certain point in time during his interview with defendant. Hougan did not otherwise give his opinion about defendants intent, guilt, or truthfulness. The trial court did not abuse its discretion by allowing such testimony.

B.

The Record Does Not Show Defendants Waiver of Miranda Rights Was Ineffective Because He Required an Interpreter.

Defendant was interviewed by Hougan, ODonnell and Beverly in English after he was informed of his Miranda rights in English and stated he understood his rights. At no time during the interviews did defendant request an interpreter. The record shows defendant was able to converse with the officers in English and does not indicate he had difficulty understanding or speaking English. Defendant never moved to suppress any statements made after he was read his rights under Miranda.

Defendant argues, for the first time on appeal, that the videotaped interviews should not have been admitted into evidence because he was not read his rights under Miranda with the aid of a Spanish‑speaking interpreter. Defendants argument is based on the trial courts decision on the eve of trial to order him to use an interpreter throughout the trial, over his objection. Even if defendants argument is not waived, it is without merit.

A person unable to understand English who is charged with a crime has a right to an interpreter throughout the proceedings. (Cal. Const., art. I,  14.) In In re Raymundo B. (1988) 203 Cal.App.3d 1447, 1453, the appellate court stated with regard to this right to an interpreter: [A]n affirmative showing of need is required. As this court explained in People [v.] Carreon (1984) 151 Cal.App.3d 559 . . . : Prior to enactment of this constitutional provision [citation], courts have developed the rule that upon the defendants showing of necessity, appointment of an interpreter was required as a matter of due process. [] In the past, trial courts had been afforded broad discretion in determining whether a defendants comprehension of English was minimal enough to render interpreter services necessary. [Citations.] Nothing in the new constitutional provision changes this well established requirement of a finding of necessity by the trial court. Indeed, the provision specifically states that the right to an interpreter is contingent upon a persons being unable to understand English. [Citation.] [Citation.] [] The prerequisite to an appointment of an interpreter is, therefore, that the person charged with a crime be unable to understand English, not that he demand an interpreter. While the fact that the person who has been charged with a crime states that he does not understand English and requests an interpreter on that basis may be some evidence of the fact that the charged individual does not understand English, it cannot be considered conclusive proof of that lack of proficiency of English.

At the preliminary hearing, defendants attorney informed the court that defendant spoke English and that defendant requested to listen to the proceedings in English without the aid of an interpreter. Defendants attorney at that time stated, notwithstanding defendants request, [i]n an abundance of caution [she] fe[lt] the interpreter should interpret the entire content of this hearing and ha[d] requested that the interpreter to do so. Defendants counsel expressed concern that while defendant speaks English, she was concerned he might not always understand the technical terms we are using. Defendant was provided an interpreter for the preliminary hearing.

During a pretrial hearing, the issue of having defendant use an interpreter during proceedings came up again in the following discussion.

The Court: [] . . . [] . . . I wanted to put something else on the record from yesterday. I went through the court file and there were, in the court file, there were occasions where [defendant] appeared in court and said he did not need a Spanish speaking interpreterthat [defendant] did not need a Spanish speaking interpreter. But for the purpose of this trial, [defendant] feels more comfortable with the interpreter, so well have an interpreter for him through the trial.

The interpreter: Your honor, [defendant] just told me he just wants my help when he doesnt understand something. He doesnt want me to interpret for him other times. And I asked him to put his earphones on and he said he doesnt need them.

The Court: Okay. [Defense counsel], you have spoken English with him yesterday in court? While you were speaking, you were conversing with him in English; is that correct?

[Defense counsel]: That is correct, your honor.

The Court: Have you had any problems understanding [defendant] or difficulties with the language?

[Defense counsel]: I have not, no.

The Court: Okay. [Defendant], is that your wish that you dontyou just want an interpreter if there is something that you dont understand?

The defendant: Yes, sir.

The Court: Okay. And do you understand everything that has been going on in court? Have you understood what has been said?

The defendant: Kind of, yeah, yeah.

The Court: And if there is something that you dont understand, you will tell the court, and well have the interpreter interpret whatever you need?

The defendant: Okay. Thank you.

The Court: And as of now you do not wish to wear the headphones; is that correct?

The defendant: Yes, sir.

The Court: Okay.

Later in the pretrial proceedings, the court stated it was going to make sure that the Spanish speaking interpreter interprets everything for [defendant] in this matter. The court added, I think it is safer that way. Then everybody is comfortable that [defendant] is understanding everything that goes on.

Shortly before trial, the issue was resolved as follows.

The Court: [] . . . [] Just prior to going on the record, I noticed that, [defense counsel], your client is not wearing the headset.

[Defense counsel]: Your honor, I would offer to the court that [defendant] does not want to wear the headset for whatever his reasons are. However, it makes it difficult for me to hear the witnesses and to hear the court when the interpreter is speaking in the volume of voice that she is speaking now, it makes it very difficult for me to follow because she is supposed to be talking directly at my client and not directly into my right ear. I think [defendant] wants now to waive the services of the interpreter; is that correct, [defendant]?

The defendant: Yes . . . .

The Court: This is the second time we have gone through this. And I am not confident that [defendant] understands everything in English.

[Defense counsel]: Nor am I, your honor.

The Court: Based upon what has transpired in the past, not just today, but in prior proceedings just before trial, you know, it was clear that [defendant] didnt understand some of the things in English, so I want to make sure that he understand[s] everything that is going on in the case. [] I agree with you that if the interpreter has to speak without the aid of the headset that it is very distracting for everybody in the court, not just for you, [defense counsel], but the People, the court, as well as the jurors on this. So I am going to order that [defendant] wear the headset.

The record shows defendant did not carry his burden of demonstrating that he failed to understand English to such an extent as to trigger the constitutional right to an interpreter. (In re Raymundo B., supra, 203 Cal.App.3d at p. 1453.) To the contrary, defendant repeatedly insisted he could understand English and only wanted an interpreter available in case he was unsure of the meaning of a particular term. The trial courts order compelling defendant to utilize the services of an interpreter during trial does not equate to a finding by the trial court that defendants comprehension of English was minimal enough to render interpreter services necessary. (Ibid.) The record shows the trial court erred on the side of caution in requiring defendant to use an interpreter. That decision cannot now be used by defendant, on this record, to retroactively invalidate the Miranda warning provided him before his interviews with Beverly, ODonnell, and Hougan. We find no error.

III.

In Light of Cunningham, supra, 549 U.S. __ [127 S.Ct. 856], We Remand for Resentencing.

Citing Cunningham, supra, 549 U.S. __ [127 S.Ct. 856], defendant argues his consecutive sentences and double the upper term sentence on count 1 were imposed based on facts determined by the trial court and thus violated his constitutional rights to due process and a jury trial. The United States Supreme Court has held Californias determinate sentencing law violates a defendants rights under the Sixth and Fourteenth Amendments to the United States Constitution to a jury trial to the extent it permits a trial court to impose an upper term sentence based on facts found by the court instead of by a jury beyond a reasonable doubt. (Cunningham, supra, 549 U.S. __ [127 S.Ct. 856].)[3]

Cunningham, supra, 549 U.S. __ [127 S.Ct. 856] did not address the issue of consecutive sentences. Penal Code section 669 provides that if a defendant is convicted of two or more offenses, the trial court shall direct whether the terms of imprisonment . . . shall run concurrently or consecutively. Contrary to sentences imposed under the determinate sentencing law where there is a statutory presumption in favor of the middle term, there is no such presumption in favor of concurrent as opposed to consecutive sentences. (People v. Reeder (1984) 152 Cal.App.3d 900, 923.) Thus, a consecutive sentence is within the statutory maximum and is not an increased sentence. That a court must make a finding to impose a consecutive sentence (Cal. Rules of Court, rule 4.425) does not change that conclusion. Thus, the imposition of consecutive sentences here did not violate Cunningham, supra, 549 U.S. at p. __ [127 S.Ct. at p. 860].

With regard to the trial courts imposition of the upper term on count 1, the court did so by citing several aggravating factors relating to defendant. (Cal. Rules of Court, rule 4.421(b)(2) [defendants prior convictions as an adult are numerous or of increasing seriousness]; id., rule 4.421(b)(3) [defendant has served a prior prison term]; id., rule 4.421(b)(4) [defendant was on parole when the crime was committed]; id., rule 4.421(b)(5) [defendants prior performance on probation or parole was unsatisfactory, citing failure to report to parole officers].)[4]

Whether defendants prior offenses are of increasing seriousness and whether defendant has performed unsatisfactorily on parole (aside from committing the charged offenses) are not factors that can be determined by an examination of court records pertaining to the defendants prior convictions. Such factors must be determined by a jury beyond a reasonable doubt before relied upon by the trial court as a basis for imposing an upper term sentence. Here, those factors were not found true by a jury, but by the trial court. Because we are not convinced that the trial court would have imposed the upper term on count 1 solely based on the remaining aggravating factors that could have been found true by the trial court (e.g., defendants prior convictions were numerous, defendant had served a prior prison term, and he was on parole when the charged offenses were committed), we remand for resentencing in light of Cunningham, supra, 549 U.S. __ [127 S.Ct. 856].

DISPOSITION

The judgment is affirmed and remanded for resentencing.

FYBEL, J.

WE CONCUR:

SILLS, P. J.

ARONSON, J.

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[1] The jury was instructed with a modified version of CALJIC No. 2.50.01, as follows: Evidence has been introduced for the purpose of showing that the defendant engaged in a sexual offense on one or more occasions other than that charged in the case. [] Sexual offense means a crime under the laws of a state or of the United States that involves any of the following: [] A. Any conduct made criminal by Penal Code section 261(a)(2). The elements of this crime are set forth elsewhere in these instructions. [] If you find that the defendant committed a prior sexual offense, you may, but are not required to, infer that the defendant had a disposition to commit sexual offenses. If you find that the defendant had this disposition, you may, but are not required to, infer that he was likely to commit and did commit the crime or crimes of which he is accused. [] However, if you find by a preponderance of the evidence that the defendant committed a prior sexual offense[], that is not sufficient by itself to prove beyond a reasonable doubt that he committed the charged crimes. If you determine an inference properly can be drawn from this evidence, this inference is simply one item for you to consider, along with all other evidence, in determining whether the defendant has been proved guilty beyond a reasonable doubt of the charged crime. [] Unless you are otherwise instructed, [y]ou must not consider this evidence for any other purpose.

[2] In his opening brief, defendant suggests the trial court excluded portions of the videotaped interviews containing any opinions by the officers about defendants guilt should be excluded. This is not accurate. Before trial, defendants counsel requested that the court exclude any opinions by the witness as to whether or not a law was violated. And by the witnesses, I particularly mean the law enforcement officers that will be on the stand as well as any definitions of law in the course of testimony by those officers. The prosecutor stated that she did not intend to ask the witnesses anything along those lines, and that [t]he only time that I can envision that would happen is upon cross-examination of the officers such as, you know, why they are doing this or why they are arresting him. The court agreed that the witnesses should not opine on whether the law had been violated, and defendants counsel stated, I will alert the court if I think we are getting close to those lines. There was no discussion about redacting the videotaped interviews to excise comments by the officers that might be construed as opinions on defendants guilt.

[3] We reject the Attorney Generals contention defendant forfeited the right to make this argument on appeal by failing to raise it in the trial court. Unlike the defendant in People v. Hill (2005) 131 Cal.App.4th 1089, 1103, who waived a challenge based on Blakelyv. Washington (2004) 542 U.S. 296 by failing to raise it at his sentencing hearing, defendant was sentenced after the California Supreme Court decided People v. Black (2005) 35 Cal.4th 1238, judgment vacated and cause remanded sub nom. Black v. California (2007) __ U.S. __ [127 S.Ct. 1210]. People v. Black held that Blakely v. Washington did not apply to imposition of an upper term. Any objection by defendant would have been futile, as the trial court would have been required to follow People v. Black. Defendant therefore did not forfeit his right to make this argument on appeal. (People v. Chavez (1980) 26 Cal.3d 334, 350, fn. 5.)

[4] The issue whether Cunningham, supra, 549 U.S. __ [127 S.Ct. 856] permits a trial court to sentence a defendant to the upper term based on the courts findings pertaining to any or all of, in essence, the same four factors involved in this case, without submitting them to a jury, is presently pending before the California Supreme Court in People v. Towne, review granted July 14, 2004, S125677.