P. v. Linder

Filed 9/4/07 P. v. Linder CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

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Defendant, Duane Peyton Linder, appeals his sentence, claiming the trial court erred when it imposed consecutive life terms without submitting the aggravating factors to a jury under Cunningham v. California (2007) 549 U.S. __ [166 L.Ed.2d 856]. We shall affirm the judgment.

In 2004, a jury found defendant guilty of 12 counts of lewd acts with a child under 14 (Pen. Code,  288, subd. (a))^[1]and one count of aggravated sexual assault of a child ( 269, subd.(a)). The jury also found true that the offenses involved multiple victims ( 667.61, subd. (e)(5)). Sentenced to a determinate term of 10 years in state prison and an indeterminate term of 120 years to life, defendant appealed his sentence, claiming, among other things, the trial court erroneously believed it did not have discretion to impose concurrent sentences. This court agreed, defendants sentence was reversed, and the case was remanded for resentencing.

On remand, the trial court stated he understood consecutive sentences were not mandatory. The court nevertheless found there were numerous aggravating factors given the nature and seriousness of defendants offenses. Accordingly, the trial court imposed the same sentence previously vacated by this court, modifying only the restitution fine, reducing it to $2,500. Defendant again challenges his sentence, arguing that on remand the trial court violated his Sixth and Fourteenth Amendment rights by not submitting to a jury the aggravating factors upon which the court relied in imposing consecutive terms. Defendants argument fails.

Our Supreme Court recently explained that, unlike a courts decision to impose the upper term, which requires factual findings, the trial court need only cite reasons for other sentencing choices ( 1170, subd. (c)), and the reasons given for imposing a consecutive sentence need only refer to the primary factor or factors that support the decision to impose such a sentence. (People v. Black (2007) 41 Cal.4th 799, 822 (Black II), citing Cal. Rules of Court, rule 4.406(a), (b);  1170, subd. (c); People v. Tran (1996) 47 Cal.App.4th 759, 774.) Hence, as distinguished from a trial courts decision to impose the upper term, the imposition of consecutive sentences does not implicate a defendants Sixth Amendment rights. (Black II, supra, at p. 821.)

On remand, the trial court stated on the record the reasons for imposing consecutive sentences: The only matter that I am adding is the fact that the aggravating circumstances clearly outweigh any mitigating circumstances, in fact there are none as shown by the probation report. And the reasons Mr. Ore gave on the record with respect to the callousness and cruelty to the children is a reason, along with the planning under rule 421(a)(8), thats (a)(8), the taking advantage of a position of trust and confidence to commit the offenses under rule 421(a)(11), and the fact that the defendants convictions as an adult are numerous and of increasing seriousness under rule 421(b)(2).

Under the clear rule of Black II, such a ruling is lawful. We thus conclude the trial court did not err in imposing consecutive sentences without submitting to a jury the aggravating factors upon which it relied.

DISPOSITION

The trial courts judgment is affirmed.

CANTIL-SAKAUYE , J.

We concur:

DAVIS, Acting P.J.

RAYE , J.

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^[1]Hereafter, undesignated statutory references are to the Penal Code.