P. v. Kuechmann

Filed 9/13/07 P. v. Kuechmann CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, William H. Kennedy, Judge. Affirmed as modified.

I.

INTRODUCTION

Defendant Joel Kuechmann appeals from a judgment of conviction and sentence entered after a court trial. After Kuechmann waived trial by jury, the court found him guilty of multiple counts of forcible oral copulation and possession of a firearm by a felon, one count of forcible penetration by a foreign object, one count of robbery, and one count of dissuading a witness. The court also found true a number of enhancement allegations, as well as the allegations that Kuechmann had suffered five prior felony convictions and one prior serious or violent felony conviction, and that he had incurred one prior strike conviction. The court sentenced Kuechmann to a term of 206 years to life.

On appeal, Kuechmann contends that (1) the trial court erred in imposing both the upper term and consecutive sentences because the circumstances in aggravation were not found by a jury; (2) this court should modify his sentence to impose the middle term sentence on the relevant counts rather than remand the case to the trial court for resentencing because any sentence other than the middle term would violate his double jeopardy and due process rights; (3) the sentences on counts 5, 6, and 8 should be reversed because the offenses were part of an indivisible course of conduct with the offense charged in count 3; and (4) the trial court erred in ordering him to pay restitution to the San Diego Police Department (Police Department) because the Police Department was not a direct victim of his crimes.

We conclude that Kuechmann's first three arguments are without merit. However, the trial court's order that Kuechmann pay restitution in the amount of $800 to the Police Department must be stricken. In all other respects the judgment of the trial court is affirmed.

II.

FACTUAL AND PROCEDURAL BACKGROUND

A. Procedural background

1. The allegations

By amended information, Kuechmann was charged with three counts of forcible oral copulation (Pen. Code,^[1] 288a, subd. (c)(2)) (counts 1, 3, and 9); three counts of possession of a firearm by a felon ( 12021, subd. (a)(1)) (counts 2, 7, and 10); one count of kidnapping for the purpose of committing forcible oral copulation ( 209, subd. (b)(1)) (count 4); one count of forcible penetration by a foreign object ( 289, subd. (a)(1)) (count 5); one count of robbery ( 211) (count 6); and one count of dissuading a witness ( 136.1, subd. (b)(1)) (count 8).

The information also alleged that with respect to count 1, Kuechmann personally used a firearm in the commission of the offense ( 12022.5, subd. (a); 12022.53, subd. (b); 667.61, subds. (b), (c), (e)); personally used a semi-automatic handgun ( 12022.3, subd. (a)); committed an offense described in section 667.61, subdivision (c) against more than one victim; and personally used a dangerous weapon or firearm in the commission of count 1 ( 667.71, subds. (b), (c), (e)).

With regard to count 3, the information alleged that Kuechmann kidnapped the victim and that the movement of the victim substantially increased the risk of harm to the victim ( 667.61, subd. (d)(2)); personally used a semi-automatic handgun ( 12022.53, subd. (a)); personally used a firearm ( 12022.5, subd. (a), 12022.53, subd. (b),  667.61, subds. (b), (c), (e)); committed the offense in violation of section 1203.065, subdivision (a); and kidnapped the victim for the purpose of committing a sexual offense ( 667.8, subd. (a)).

As to count four, the information alleged that Kuechmann personally used a semi-automatic firearm in the commission of the offense ( 12022.53, subd. (b)). As to count five, it was alleged that Kuechmann personally used a semi-automatic handgun (12022.53, subd. (a)); personally used a semi-automatic firearm ( 12022.5, subd. (a), 12022.53, subd. (b)); committed the offense in violation of section 1203.065, subdivision (a); and kidnapped the victim for the purpose of committing a sexual offense ( 667.8, subd. (a)).

The information further alleged that with respect to count 6, Kuechmann personally used a semi-automatic firearm ( 12022.5, subd. (a), 12022.53, subd. (b)).

As to count 9, the information alleged that Kuechmann personally used a semi-automatic handgun ( 12022.53, subd. (a)); personally used a firearm ( 12022.5, subd.  (a), 12022.53, subd. (b), 667.61, subds. (b), (c), (e); committed the offense in violation of section 1203.065, subdivision (a); and personally and intentionally discharged a weapon causing death or serious bodily injury ( 12022.53, subd. (d)).

Finally, the information alleged that Kuechmann committed an offense described in section 667.61, subdivision (c), against more than one victim; that he had suffered five prior felony convictions ( 1203, subd. (e)(4)); that he had suffered one prior serious or violent felony conviction ( 667, subd. (a)(1); and that he had incurred one prior strike conviction ( 667, subds. (b)-(i), 1170.12).

2. Trial and Sentencing

Kuechmann waived his right to jury trial and agreed to a court trial. The court found Kuechmann guilty on all counts except count 4 (kidnapping for the purpose of forcible oral copulation). The court also made true findings as to all of the corresponding enhancement allegations and found true the prior probation denial conviction allegations, the prior serious felony allegation, and the prior strike allegation.

The trial court denied probation and imposed the following sentence: 25 years to life on counts 1, 3, and 9, each doubled to 50 years to life because of the prior strike; five additional years on count 1 for the prior serious felony conviction; 10 additional years on count 3 for the use of a firearm and five years for the prior serious felony conviction; five additional years on count 9 for the prior serious felony conviction; the upper term of eight years on count 5, doubled to 16 years because of the prior strike, plus 10 years for the use of a firearm; the upper term of five years, doubled to 10 years, on count 6 (concurrent), plus an additional 10 years for the use of a firearm pursuant to section 12022.53, subdivision (b) (concurrent) and four years for the use of a firearm pursuant to section 12022.5, subdivision (a) (stayed); the upper term of three years, doubled to six years, on count 2 (concurrent); the upper term of three years, doubled to six years, on count 7 (stayed); the upper term of three years, doubled to six years, on count 8 (concurrent); the upper term of three years, doubled to six years, on count 10 (stayed); and an additional five years for the prior serious felony enhancement. The combined sentence was 150 years to life, plus an additional determinate term of 56 years, for a total of 206 years to life.

In addition to imposing restitution and parole revocation fines, the court ordered Kuechmann to pay restitution of $2,460 to Salma, one of his victims, $800 to the Police Department, and other restitution amounts to be determined.

B. Factual background

1. Counts 9 and 10

On August 9, 2005, Kuechmann offered Brianna J.^[2]a ride after Brianna left a club in the North Park area of San Diego. Brianna accepted Kuechmann's offer. Kuechmann drove Brianna away from her car and stopped in a park. Kuechmann then reached into the back of his Jeep and grabbed a handgun. He pointed the gun at Brianna's temple and in vulgar language ordered her to perform oral copulation on him. Kuechmann took his penis out from a pair of swimming trunks he was wearing and forced Brianna's mouth down on it. Brianna orally copulated Kuechmann.

At some point, Kuechmann put the gun down so that he could smoke crystal methamphetamine. Brianna took the opportunity to flee the vehicle. Kuechmann grabbed Brianna's shirt as she attempted to get away, and the shirt ripped and came off. Brianna's purse opened and the contents fell to the ground, but Brianna ran away from the scene and hid in a yard, behind some bushes. After Brianna called her boyfriend to pick her up, she and her boyfriend returned to the park to try to recover the contents of her purse. Brianna's wallet was not there when she returned.

2. Counts 3, 4, 5, 6, 7, and 8

On August 16, 2005, Kuechmann encountered Salma Z.^[3]as she was waiting at a bus stop in North Park. Salma and Kuechmann had met approximately six months earlier. Kuechmann offered Salma a ride, which she accepted. After Salma got into Kuechmann's car, he drove her to a dark location. Kuechmann produced a gun and pointed it at Salma's head. He ordered Salma to orally copulate him, telling her that if she did not, he would kill her. Salma began to orally copulate Kuechmann. Kuechmann also forced Salma to insert her fingers into his anus.

As this was happening, Salma tried to grab Kuechmann's gun and the two struggled over the gun. Kuechmann told Salma to let go of the gun, but she refused to do so until Kuechmann promised that he would not kill her. Kuechmann then hit Salma twice with the gun and asked her what she was thinking. He ordered her to continue orally copulating him, and told her that she would die if he did not ejaculate. Salma complied with Kuechmann's order.

Kuechmann made Salma promise that she would not call the police. He threatened that he would "come back and get [her]" if she told anyone about what had happened. Kuechmann took Salma's cell phone away from her and removed the battery. He then told Salma to give him all of her belongings. Salma handed Kuechmann her purse, which, held, among other things, her identification and approximately $30 in cash, jewelry she had been wearing, and her cell phone. Kuechmann drove into an alley and pointed the gun at Salma. Kuechmann told Salma that he would drop her purse and belongings at the corner. Kuechmann then ordered Salma out of the car and told her to face a garage and count to 10 or 20 before turning around. Salma did not see where Kuechmann went. She did not find her purse at the corner where Kuechmann had said he would leave it. She continued to look for her purse for a while, but did not find it.

3. Counts 1 and 2

On August 26, 2004, Kuechmann met Miguel G. and Monica Quezada as Miguel and Monica left a nightclub on National Avenue. Kuechmann offered Miguel a ride home, but Monica insisted that she drop off Miguel at his home. Miguel told Kuechmann that he could follow them there.

Miguel and Kuechmann talked in the parking lot of Miguel's apartment complex until Miguel's roommate Rosa arrived. Miguel and Kuechmann then went upstairs to Miguel's apartment and had sex. The two stopped having sex when Kuechmann started to bite Miguel's back.

Kuechmann told Miguel to orally copulate him. Miguel told Kuechmann that he was tired. After Kuechmann closed his eyes, Miguel began masturbating. Kuechmann opened his eyes and told Miguel to come to him. Miguel refused and asked Kuechmann to leave, saying he was tired. Kuechmann then removed a gun from his jacket, pointed it at Miguel's head, and ordered Miguel to orally copulate him. Kuechmann pointed the gun at Miguel's face as Miguel complied with the order.

After Miguel finished, Kuechmann said, "You have a friend. Bring her." He told Miguel that he wanted to have sex with a man and woman. Miguel went into Rosa's room by himself and locked the door. He awakened Rosa, told her there was a man with a gun, and asked her to call 911. Kuechmann eventually knocked on Rosa's door and tried to open it. Kuechmann asked if they were calling the police. Miguel said that they were calling the police and told Kuechmann to leave.

Several San Diego police officers responded to Rosa's emergency call. Officer Donald Brackrog was walking toward the apartment complex when he heard a "metallic" sound of something hitting the ground, followed by a "thud." Officer Brackrog looked through the slats of a fence and saw Kuechmann lying on the concrete. Officer Mathew Novak saw a 9mm semiautomatic handgun near Kuechmann. Officers also found Miguel's cell phone and keys on the ground near Kuechmann.

III.

DISCUSSION

A. The trial court did not violate Kuechmann's right to jury trial when it sentenced

him to the upper term on counts 2, 6, 7, 8, and 10 and to a consecutive term on

count 5

Kuechmann argues that "[t]he trial court's decision to impose aggravated terms on counts two, six, seven, eight and ten, and its decision to impose a full and consecutive aggravated sentence on count five pursuant to Penal Code section 667.6, subdivision (c), must be reversed by this court because appellant was not afforded and did not waive his right to jury trial on the existence of the facts utilized by the trial court to justify those sentencing choices." Although Kuechmann argues against the imposition of what he calls "aggravated" sentences, referring to both the upper term and to a consecutive sentence, we address Kuechmann's challenge to the imposition of the upper term separately from his challenge to the imposition of a consecutive term.

1. The trial court did not err in imposing the upper term on counts

2, 6, 7, 8, and 10

Kuechmann contends that the trial court committed Blakely^[4]error in sentencing him to the upper term on multiple counts. Kuechmann maintains that in sentencing him to a term above the presumptive middle term, the trial court relied on factsother than the fact of a prior convictionthat were neither found by the jury nor admitted by him.^[5] The trial court imposed the upper term on counts 2, 6, 7, 8, and 10. As Kuechmann describes in his brief, the court imposed the upper term based on "the court's factual finding that appellant's prior convictions as an adult and sustained delinquency petitions as a juvenile were numerous [citation], that appellant had served a prior prison term [citation], and that appellant's prior performance on probation and parole was less than satisfactory in that he had failed to comply on one or more occasions and failed to remain law-abiding [citation]."

After Kuechmann appealed from the judgment of conviction, the United States Supreme Court issued its opinion in Cunningham v. California (2007) 549 U.S.___, 127 S.Ct. 856 (Cunningham), to address the constitutionality of California's determinate sentencing law (DSL) as interpreted by the California Supreme Court in People v. Black (2005) 35 Cal.4th 1238 (Black I). In Black I, the Supreme Court determined that "the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence or consecutive terms under California law does not implicate a defendant's Sixth Amendment right to a jury trial." (Black I, supra, 35 Cal.4th at p. 1244.) In Cunningham, the United States Supreme Court rejected the conclusion in Black I and held that the imposition of an upper term sentence under the DSL, based on neither a prior conviction nor facts found by the jury or admitted by the defendant, violates the Sixth and Fourteenth Amendments of the United States Constitution:

"California's determinate sentencing law (DSL) assigns to the trial judge, not to the jury, authority to find the facts that expose a defendant to an elevated 'upper term' sentence. The facts so found are neither inherent in the jury's verdict nor embraced by the defendant's plea, and they need only be established by a preponderance of the evidence, not beyond a reasonable doubt. The question presented is whether the DSL, by placing sentence-elevating factfinding within the judge's province, violates a defendant's right to trial by jury safeguarded by the Sixth and Fourteenth Amendments. We hold that it does." (Cunningham, supra, 127 S.Ct. at p. 860.)

The Cunningham court reasoned:

"As this Court's decisions instruct, the Federal Constitution's jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant. Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) [Apprendi]; Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed. 2d 556 (2002) [Ring]; Blakely [, supra,] 542 U.S. 296; United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L.Ed.2d 621 (2005) [Booker]. '[T]he relevant "statutory maximum, "'this Court has clarified, 'is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.' Blakely, 542 U.S., at 303-304, 124 S.Ct. 2531 (emphasis in original)." (Cunningham, supra, 127 S.Ct. at p. 860.)

The Cunningham court reversed the defendant's upper term sentence because "the four-year elevation based on judicial factfinding denied petitioner his right to a jury trial." (Cunningham, supra, 127 S.Ct. at p. 860.)^[6]

The California Supreme Court recently reconsidered its holding in Black I in light of the Cunningham decision. (People v. Black (2007) 41 Cal.4th 799 (Black II).) In addition to addressing a number of other issues raised by Cunningham, the Black II court concluded that the existence of "a single aggravating circumstance" renders a defendant eligible for the upper term, thus making the upper term the "statutory maximum" in cases in which at least one aggravating factor has been established in a manner consistent with the requirements of the Sixth Amendment. According to the court, "as long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi [v. New Jersey (2000) 530 U.S. 466 (Apprendi)] and its progeny, any additional fact finding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant's right to jury trial." (Black II, supra, 41 Cal.4th at p. 812.)

In this case, the trial court relied on at least one aggravating circumstance that rendered Kuechmann "eligible for the upper term sentence." (Black II, supra, 41 Cal.4th at p. 818.) Specifically, the trial court relied on the fact that Kuechmann's prior juvenile adjudications and adult convictions were numerous as a circumstance in aggravation that warranted imposition of the upper term. Under Black II, this circumstance was a sufficient permissible basis for imposing the upper term. In Black II, the Supreme Court concluded that factors relating to a defendant's recidivism fall within the scope of the exception identified in Almendarez-Torresv. United States (1998) 523 U.S. 224 (Almendarez-Torres) and therefore need not be found by a jury nor admitted by the defendant in order to be established in accordance with Apprendi. (Black II, supra, 41 Cal.4th at p. 819.)^[7]

Further, in Black II, the California Supreme Court specifically concluded that a court's finding that a defendant has numerous prior convictionsas the trial court found herefalls within the scope of the Almendarez-Torres exception and may be used as an aggravating circumstance without that factor having been proved to a jury or admitted by the defendant. (Black II, supra, 41 Cal.4th at p. 818 [court may rely on fact that "'defendant's prior convictions . . . are numerous or of increasing seriousness'" to impose upper term without violating the right to jury trial].) The court reasoned:

"The determinations whether a defendant has suffered prior convictions, and whether those convictions are 'numerous or of increasing seriousness' (Cal. Rules of Court, rule 4.421 (b)(2)), require consideration of only the number, dates, and offenses of the prior convictions alleged. The relative seriousness of these alleged convictions may be determined simply by reference to the range of punishment provided by statute for each offense. This type of determination is 'quite different from the resolution of issues submitted to a jury, and is one more typically and appropriately undertaken by a court.' [Citation.]" (Black II, supra, 41 Cal.4th at pp. 819-820.)

Because at least one of the aggravating circumstances on which the trial court relied was established by means sufficient to satisfy the Sixth Amendment, Kuechmann was eligible for the upper term. The trial court was thus free to select the upper term without violating Kuechmann's right to jury trial.

2. The trial court did not err in imposing a consecutive sentence on count 5

The trial court's imposition of a consecutive term on count 5 did not violate Kuechmann's Sixth Amendment right to a jury trial. Noting that Cunningham "did not address the question whether the principles established in Blakely apply to consecutive term sentences," Black II reaffirmed the conclusion in Black I that discretionary imposition of consecutive sentences does not implicate a defendant's Sixth Amendment rights. (Black II, supra, 41 Cal.4th at p. 821.) The California Supreme Court explained:

"The high court's decision in Cunningham does not call into question the conclusion we previously reached regarding consecutive sentences. The determination whether two or more sentences should be served in this manner is a 'sentencing decision[] made by the judge after the jury has made the factual findings necessary to subject the defendant to the statutory maximum sentence on each offense' and does not 'implicate[] the defendant's right to a jury trial on facts that are the functional equivalent of elements of an offense.' [Citation.]" (Black II, supra, 41 Cal.4th at p. 823, citing, Black I, supra, 35 Cal.4th at p. 1264.)

We affirm the sentence imposed by the trial court, including the imposition of the upper term on counts 2, 6, 7, 8, and 10 and the discretionary consecutive sentence on count 5. Because we have found no Blakely error, we need not consider Kuechmann's separate argument that the appropriate remedy for the alleged Blakely violations is for this court to impose the middle term on count 2, 6, 7, 8, and 10 and to stay the sentence on count 5, or order that it run concurrently with the sentences imposed on counts 1, 3, and 9.

B. Counts 3, 5, 6, and 8 may be punished separately because the offenses charged

in those counts do not constitute an indivisible course of conduct

Kuechmann contends that a number of the offenses of which he was convicted were part of a single, indivisible course of conduct, and that he thus may not be punished under multiple Penal Code provisions for these acts. He contends that section 654 applies to prohibit the imposition of separate sentences for counts 5, 6, and 8 because they were part of a single, indivisible course of conduct with count 3. Section 654, subdivision (a) provides:

"An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other."

Section 654 "precludes multiple punishments for a single act or indivisible course of conduct." (People v. Hester (2000) 22 Cal.4th 290, 294.) To determine whether a course of conduct is indivisible, courts consider the intent and objective of the defendant. If all the criminal acts were incident to a single criminal object, then the court may impose punishment only as to one of the offenses committed. (People v. Beamon (1973) 8 Cal.3d 625, 636637.) However, offenses that have similar but consecutive and different objectives, or simultaneous but separate objectives, may be punished separately. (People v. Latimer (1993) 5 Cal.4th 1203, 12111212.) A trial court's determination that a defendant holds multiple criminal objectives will be upheld on appeal if it is supported by substantial evidence. (People v. Osband (1996) 13 Cal.4th 622, 730-731.)

Turning to the offenses Kuechmann contends were part of a single, indivisible course of conduct, we agree with the trial court's implicit determination that Kuechmann held multiple criminal objectives in committing these crimes. Kuechmann's conviction on count 3 was based on his forcing Salma to orally copulate him. Count 5 involved Kuechmann forcing Salma to insert her fingers into his anus. Count 6 involved Kuechmann robbing Salma, and count 8 was based on Kuechmann's attempt to dissuade Salma from contacting the police. Each of these offenses is sufficiently distinct from the others that each can be deemed to have been motivated by separate and distinct intention. Certainly, the objective in robbing someone is different from the objective in forcing that person to perform a sex act. Further, the purpose underlying threatening a victim in order to get the victim to not call the police is different from the purpose for which one commits a robbery or forcible oral copulation.

Additionally, we are not persuaded that the offenses of forcible oral copulation and forcible penetration were part of an indivisible course of conduct. Even though the forcible oral copulation and forcible penetration in this case were related in that both offenses were committed for sexual purposes and occurred during a single encounter with the victim, courts have "uph[e]ld separate sentences for each sex crime committed in a single encounter, even where closely connected in time." (People v. Harrison (1989) 48 Cal.3d 321, 336, citing People v. Perez (1979) 23 Cal.3d 545, 554 [holding that section 654 did not preclude punishment for each sex crime, including rape, sodomy, and two oral copulation counts, that were committed during a continuous 45-to-60-minute attack].) Further, even if we were to conclude that forcible oral copulation and forcible penetration were committed during an indivisible course of conduct, section 667.6as an exception to section 654permits multiple punishment for these particular types of criminal acts. (See 667.6, subds. (c) and (e) [among the crimes for which "full, separate and consecutive" terms may be imposed are section 288a, subdivision (c)(2) (forcible oral copulation) and section 289, subdivision (a) (forcible penetration by a foreign object)]; see also People v. Hicks (1993) 6 Cal.4th 784, 793-796 [in enacting 667.6, subdivision (c), "the Legislature intended to create an exception to section 654 that would allow multiple punishment for separate criminal acts committed during an indivisible course of conduct"].)

Because Kuechmann's convictions on counts 3, 5, 6, and 8 did not arise from an indivisible course of conduct, the trial court did not err in punishing each offense separately. Further, even if his convictions on counts 3 and 5 did arise from an indivisible course of conduct, the Legislature has allowed for separate punishment for the offenses charged in those counts. The trial court thus did not err in imposing separate sentences for Kuechmann's convictions on counts 3, 5, 6, and 8.

C. The court erred in directing Kuechmann to pay restitution to the

Police Department

The People concede that the trial court erred in ordering Kuechmann to pay $800 in victim restitution to the Police Department as reimbursement for the cost of the sexual assault response team's (SART) examination of Miguel.

"Penal Code section 1202.4, subdivision (k) permits restitution to a business or governmental entity only when it is a directvictim of crime." (People v. Martinez (2005) 36 Cal.4th 384, 393 (Martinez).) Direct victims are those "'entities against which the probationer's crimes had been committed'that is, entities that are the 'immediate objects of the probationer's offenses.' [Citation.]" (Ibid.) "'Under the relevant case law and the statutory scheme, public agencies are not directly "victimized" for purposes of restitution under Penal Code section 1202.4 merely because they spend money to investigate crimes or apprehend criminals.' [Citation.]" (Martinez, supra, 36 Cal.4th at p. 393, fn. 1.)

In this case, the Police Department was not the immediate object of Kuechmann's offenses. Rather, the Police Department spent money on the SART examination as part of its investigation of the crimes against Miguel. Consequently, the court erred in ordering Kuechmann to pay restitution to the Police Department, and that portion of the judgment must be stricken.

IV.

DISPOSITION

The judgment is modified to strike that portion ordering that Kuechmann pay restitution to the Police Department in the amount of $800. The judgment is otherwise affirmed.

AARON, J.

WE CONCUR:

NARES, Acting P. J.

O'ROURKE, J.

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^[1] Further statutory references are to the Penal Code unless otherwise indicated.

^[2] Brianna is a transgender individual.

^[3] Salma is a transgender individual.

^[4]Blakely v. Washington (2004) 542 U.S. 296 (Blakely).

^[5] Kuechmann waived his right to trial by jury and opted for a court trial. The jury waiver form establishes that Kuechmann agreed to have the court, not a jury, determine whether he was guilty or not guilty of the charged offenses. This raises a question as to whether Kuechmann's jury trial waiver encompassed the right to have a jury determine any aggravating factors used to increase his sentence above the middle term. Although Kuechmann gave up his Sixth Amendment right to have a jury of his peers determine his fate, the waiver form does not mention the defendant's rights under Blakely, nor does it discuss sentencing matters. Additionally, even if Kuechmann arguably waived his right to have a jury determine his case in its entirety, there is nothing to suggest that he waived his right to have all of the elements of the offense proved beyond a reasonable doubt. Blakely requires that any fact used to increase a defendant's sentence above the statutory maximum be determined by a jury, and also be proven beyond a reasonable doubt. On this record, it is unclear whether the trial court found the aggravating circumstances true beyond a reasonable doubt. However, we need not reach this waiver issue because under recent California Supreme Court authority it is clear that the trial court did not err when it imposed the upper term on multiple counts, irrespective of whether the court relied on some aggravating circumstances that were not found true beyond a reasonable doubt by either the court or a jury.

^[6] In response to Cunningham, the Legislature passed an amendment to the DSL, which the Governor signed into law on March 30, 2007. (See 1170, as amended by Stats. 2007, ch. 3, 2.) The amendment to section 1170 gives trial courts full discretion to impose the lower, middle, or upper term sentence, effectively increasing the "statutory maximum" from the middle term to the upper term. (Compare 1170, subd. (b), as amended by Stats. 2007, ch. 3, 2 ["When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court"] with former 1170, subd. (b) ["When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime"].)

^[7] Under Almendarez-Torres, a court does not violate a defendant's Sixth Amendment jury trial right by imposing a sentence that exceeds the statutory maximum on the basis of a defendant's prior conviction. (Blakely, supra, 542 U.S. at p. 301, citing Apprendi, supra, 530 U.S. at p. 490.