P. v. Ortega

Filed 11/5/07 P. v. Ortega CA1/2

Opinion following remand by U.S. Supreme Court

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

I. INTRODUCTION

Defendant and appellant Armondo Gib Ortega was convicted, following a court trial, of six counts of committing a lewd and lascivious act on a child under the age of 14 (Pen. Code, 288, subd. (a))^[1], and one count of willfully failing to follow the registration requirements for a convicted sex offender ( 290). The court also found true allegations that defendant suffered both a prior strike conviction ( 1170.12) and a prior violent felony conviction ( 667, subd. (a)).

Defendant challenges this conviction on numerous grounds, arguing that (1) he did not receive adequate notice of the charges filed against him; (2) he was denied assistance of counsel regarding his motion for a new trial; (3) insufficient evidence existed to support his six section 288, subdivision (a), convictions; (4) insufficient evidence existed to support his conviction for failing to register as a sex offender ( 290); (5) the trial courts sentence violates due process because the sentence was imposed in order to punish defendant for asserting his right to a trial; (6) he was entitled to a jury trial on the question of whether he was entitled to probation under 1203.066; and whether he had a prior serious felony conviction; (7) there was no substantial evidence of his probation ineligibility; (8) the court failed to find he did not meet the conditions for probation eligibility; (9) the court failed to properly state its reasons for imposing consecutive terms; and (10) he was denied his federal due process rights under Blakely v. Washington (2004) 542 U.S. 296, (Blakely) when the trial court imposed the upper term on count 3 based on facts that had not been either admitted or found to be true by a jury beyond a reasonable doubt. None of these contentions has any merit and, accordingly, we affirm the judgment of conviction.

II. FACTUAL AND PROCEDURAL BACKGROUND

Defendant waived his right to a jury trial and the matter proceeded by way of a court trial.

The victim, then six years old, testified that she and her mother stayed at a Motel 6 with defendant.^[2] While they stayed there, the defendant stuck his thing in my thing. The victim testified that defendant had clothes on. She did too. At no time did defendant take off his clothes or her clothes. He touched her in the daytime and the nighttime. Defendant also lived with her and her mother at her house on Finley Avenue. At this place, he stuck his thing in. She stated that when he touched her, his private touched her private, but they both had their clothes on when this happened. The touching lasted a long time. He never touched her on her private with his hand. When he touched her he would lie down on top of her. He never took his private out of his clothes and she never saw it. She could feel the part that touched her and it hurt.

She described the event at Finley Avenue as the same thing that he did in the motel room. This occurred more than one time at both Motel 6 and at Finley Avenue. The victim also testified that this happened at Finley Avenue about twenty times. She also testified that she told someone at the Redwood Childrens Center that she had been touched at Finley Avenue twenty times. Later, she testified that she had never told anyone that defendant had touched her twenty times on Finley Avenue. She testified this was the first time shed said that. She told her mother about it when defendant was no longer living with them.

The victims mother testified. She and the defendant stayed together at the Motel 6 in September until October about. She left her daughter alone with defendant on more than one occasion. Immediately after leaving the Motel 6, defendant moved in with her, her mother, her children and her brother. She believed she moved into the Finley Avenue house on October 5. Defendant lived with them in that house for about two weeks and, during that time period, she left him alone with her daughter on more than one occasion.

The day after defendant left, her daughter told her about inappropriate touches by defendant. Her daughter at first told her he had touched her once and then she said more than once. In a written statement, she reported that her daughter told her defendant had touched her twice. She called the police and police officers came out the same day and took a report. She believed the report was taken around the 20th or 21st of October. She recalled her daughter was interviewed at the Redwood Childrens Center on October 31.

Detective Musgrove, assigned to investigate child abuse and sexual assault for the City of Santa Rosa, observed an interview of the victim at the Redwood Childrens Center. He had participated in over 100 such interviews. During the course of the interview, the victim indicate[d] that [defendant] tried to stuff his pee pee in mine The victim wasnt real good about specific dates. The victim reported that the molestation occurred at a Motel 6 and at her house. The victim said her clothes and the defendants clothes were on when the molestation occurred.

Detective Musgrove also interviewed defendant. During the interview, defendant admitted that he rubbed his penis against [the victims] vagina through their clothing. Defendant did not tell Musgrove with any certainty how many times this occurred, but told Musgrove that two or three times at each would place be accurate.

Musgrove also stated that, during his interview with defendant, defendant admitted he had an erection and that, while he rubbed it against the victims vagina through her clothing, she looked down and seemed to notice it. Defendant also said that once he noticed that he was getting aroused, he remembers for a span of maybe 30 to 45 seconds where he continued rubbing his erect penis to [the victims] vagina through clothing, stopped when she noticed that he had an erection. He said there was no skin to skin touching. Defendant told Musgrove that he would become aroused and then would try to control the situation and stop the contact. He never talked about removing clothing. Musgrove also said defendant admitted to touching his aroused penis on the victims vagina through clothing two to three times at the Motel 6 and two to three times at the house . . . on Finley.

A.S., a nineteen-year-old woman testified that, when she was five years old, defendant molested her. He was a friend of her mother and her grandmother. Defendants penis touched her vagina and she kissed his penis. Musgrove testified that defendant denied molesting A.S. He told Musgrove he pled guilty to a molestation, but he did not do what he was convicted of doing.

James Feith, of the Sonoma County Sheriffs department testified that, in April 2001, he was a correctional officer at the main Sonoma County adult detention facility. One of his duties was to give inmates who were being released notification of their sex offender registration requirements. Defendant signed a release in which he stated he understood the registration requirements for sex offenders. Musgrove testified that defendant told him hed lived in a number of different places recently. Detective Musgrove identified four documents having to do with defendants registration as a sex offender. Defendant registered a number of times. At the time he was interviewed by Musgrove in November 2002, he was registered at an address in Santa Rosa. Defendant did not live at this address, however, in November 2002. He told Musgrove he had been bouncing around. He stated he stayed sometimes in a vehicle parked at his place of employment. He also told Musgrove he stayed at a Motel 6 and for some time with the victim and her family. He admitted he knew the reporting requirements but had not abided by them.

The prosecution amended counts 1 to 6 to conform to proof, explaining I believe the relevant dates would be on or about the 15th of September, 2002, through the 23rd, and through the 22nd day of October, 2002. That was being borne out by the Motel 6 records, which show Mr. Ortega renting room 242 beginning on the 15th of September and [Mothers] testimony that she contacted the police within a day of disclosure from her daughter . . . to her which, and I believe . . . Detective Musgrove just told us that that police contact occurred on the 23rd day of October.

The defense rested after entering a stipulation into the record^[3]and without putting on any witnesses.

After hearing argument from both counsel, the court found defendant guilty, beyond a reasonable doubt, of six counts of section 288, subdivision (a), and one count of section 290, subdivision (a). The court also found defendants prior strike and prior violent felony true, beyond a reasonable doubt. The court referred the matter to the probation department for a presentence report.

Defendant then filed a motion requesting the appointment of new counsel to represent him in a new trial motion. Defendant contended counsel had been ineffective and the court erred in admitting statements made by him which were tantamount to a confession. He complained that counsel had failed to provide him with transcripts from the preliminary hearing in 1991 which were pertinent to the testimony of A.S. He also wanted a transcript of the victims interview at the Redwood Childrens Center, and a copy of the testimony of an expert witness who he believed testified at the preliminary hearing in 1991 regarding his prior sexual molestation conviction. He stated he had wanted a jury trial and his attorney manipulated him into a court trial by telling him that if he went before a jury he would be convicted in a New York minute. He asked his attorney to subpoena witnesses who would discredit statements made by the victim and her mother and who would also corroborate his statements. In particular, these witnesses would have testified that the victim had made statements like this before and that these prior statements were not true. Defendant alleged counsel did not thoroughly cross-examine the Peoples witnesses, did not impeach them, and failed to file relevant motions.

The trial court stated that it must first find that counsel was incompetent before appointing conflicts counsel. Defendants counsel then responded at some length to defendants contention that he had been ineffective. He explained that he did not recall whether he gave defendant a copy of the preliminary hearing transcript from his prior conviction. However, the prior victim testified at trial in a cursory fashion and he did not see any significant discrepancies between her testimony at the preliminary hearing and her testimony at defendants trial and felt that if he did cross-examine her with the preliminary hearing transcript it would have made her testimony more damaging to defendant. He provided defendant with a copy of the victims interview, but not that of the victims younger sister. He could not find the younger sisters testimony in his file, but he did not believe it was material because the sister did not report anything she saw between defendant and the victim.

Counsel also testified that no expert witness testified at the preliminary hearing in 1991 regarding defendants sexual molestation of A.S. A Dr. Apostle authored a report under section 288.1 and counsel discussed it with defendant. However, he did not want to highlight this information because it would have been damaging to defendant in the present case.

With regard to the waiver of a jury trial, counsel stated that defendant himself suggested that a jury trial be waived. Counsel did not encourage this waiver. Rather, he told defendant he thought defendant would be convicted by a jury or by a court based on counsels evaluation of the overwhelming evidence against defendant. As for witnesses, defendant gave counsel a list of about 15 people he wanted to have contacted. The witnesses were people who knew the victims mother and could essentially criticize her parenting skills, abuse of her using drugs, not being present for the kids, of being dishonest . . . . Counsel did not feel this testimony would be helpful to defendant because the mothers credibility was not the key to the case. The other testimony, intended to show that defendant had not been observed victimizing any children, was, in counsels opinion, irrelevant because the crime occurred when the defendant and victim were alone (or with the victims young sister). In addition, the investigator who attempted to contact the witnesses was not able to locate most of them. Those he did get in touch with did not want to be involved or did not have anything relevant to say.

Counsel also commented on his strategy in cross-examining witnesses at trial. Counsel exercised his professional judgment in making decisions about how to cross-examine the witnesses. He explained that cross-examining a child is a delicate process and he did not wish to bring out every possible detail regarding the molestations because he thought this would be damaging to defendants case. Counsel stated that he did tell defendant it would not be a good idea for him to testify. Defendants statements to Musgrove were, in his opinion, not a confession, but admissions and these statements would convict defendant. He also made sure defendant understood he did have the right to testify if he wished.

The court found that counsel was not ineffective and denied the motion to appoint conflicts counsel to prepare a motion for new trial. Defendants counsel informed the court that defendant has drafted a document that I provided to the Court, which is entitled Notice of Motion for New Trial based on a denial of due process. And I believe [defendant] has set forth in there all of the arguments he wishes the Court to consider in connection with the motion for new trial. The court ruled that the motion could be filed.

After a number of continuances, the court heard defendants new trial motion on December 4, 2003. At this hearing, however, defendant asked leave to present a new motion for a new trial orally, and asked the court to disregard his earlier filed motion. The court agreed that defendant could withdraw his earlier motion and permitted him to read his motion at the hearing. In this motion, defendant made arguments similar to those made by him earlier when he sought the appointment of conflicts counsel. He also raised issues regarding prosecutorial misconduct, the improper introduction of character evidence, the prosecutors failure to inform him of what specific offense he was being charged with, the prosecutors failure to disclose material information, and the insufficiency of the evidence to sustain the verdict. Defendant also contended counsel was ineffective. The People responded to defendants claims. The court denied defendants motion.

After hearing statements from the victim, the victims mother and defendant, the court sentenced defendant to a term of 100 years to life, and a consecutive term of 34 years and four months. Defendant filed a timely notice of appeal and, on November 9, 2005, we affirmed in an unpublished decision. Our Supreme Court denied review, but the United States Supreme Court granted certiorari and, subsequent to its decision in Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856] (Cunningham) remanded the case to us for reconsideration in light of its decision in that case. We have undertaken that reconsideration and, for the reasons set forth in part III, F and H, below, determine that Cunningham does not require reversal or even remand.

III. DISCUSSION

A. Notice of Molestation Charges

Defendant contends he was denied his due process right to fair notice of the charges against him because the victim did not describe the number of acts of molestation with enough certainty to determine how many violations occurred. The People respond that defendant waived this argument because he did not object on this ground below. (People v. Gil (1992) 3 Cal.App.4th 653, 659.) We agree that defendants failure to raise this argument below constitutes a waiver. (Ibid.) We address the merits of this argument, however, because defendant also contends that counsels failure to raise the fair notice argument constitutes ineffective assistance of counsel.

We conclude that counsels decision not to raise this argument was not deficient under an objective standard of professional reasonableness for the simple reason that defendant had fair notice of the charges against him and an objection to the contrary would have been unavailing. (Strickland v. Washington (1984) 466 U.S. 668, 694; People v. Ledesma (1987) 43 Cal.3d 171, 215-218.)

The preeminent due process principle is that one accused of a crime must be informed of the nature and cause of the accusation. (U.S. Const., Amend. VI.) Due process of law requires that an accused be advised of the charges against him so that he has a reasonable opportunity to prepare and present his defense and not be taken by surprise by evidence offered at his trial. (People v. Jones (1990) 51 Cal.3d 294, 317 (Jones).)

Jones involved the issue of whether a childs generic testimony -- that is, testimony in which the victim describes an act of molestation and the general time period in which it occurred without specifying specific dates and places for the acts of molestation -- could be substantial evidence to support a conviction under section 288, subdivision (a) and, further, whether such allegations in an information or preliminary hearing testimony were sufficient to protect a defendants due process right to notice of the nature and cause of the accusation. In Jones, the court found both to be the case. In reaching this conclusion, the court explained out that, even generic testimony (e.g., an act of intercourse once a month for three years) outlines a series of specific, albeit undifferentiated, incidents, each of which amounts to a separate offense, and each of which could support a separate criminal sanction. (Jones, supra, 51 Cal.3d at p. 314.) The court also concluded that, given the availability of the preliminary hearing, demurrer and pretrial discovery procedures, the prosecution of child molestation charges based on generic testimony does not, of itself, result in a denial of a defendant's due process right to fair notice of the charges against him. (Id. at p. 318.)

Finally, the court emphasized that a child victims inability to recall or relate specific dates, locations or other details of the offenses does not preclude a defense to these charges. The court pointed out that a defendant could still testify in his defense and [i]f credible, his testimony should prevail over the unspecific assertions of his young accuser. . . . [] . . . [B]esides merely denying the charges, the defendant may introduce evidence outlining the victims past fabrications and offering innocent explanations for the victims apparent knowledge of or familiarity with sexual behavior generally or the defendants physical characteristics in particular, as well as expert testimony refuting or contradicting any physical evidence of molestation. The court, therefore, declined to follow cases such as People v. Van Hoek (1988) 200 Cal.App.3d 811, which had previously held that generic testimony deprives the defendant of due process. (Jones, supra, 51 Cal.3d at pp. 319 -321.)^[4]

Defendant was charged in an indictment with six counts of a felony, in that on or about the 19th day of September, 2002, through the 3rd day of October, 2002, in the County of Sonoma, State of California, the said defendant did violate Section 288(a) of the Penal Code, in that he did willfully, unlawfully, and lewdly commit a lascivious act upon and with the body and certain parts and members thereof of [the victim], a child under the age of fourteen years, with the intent of arousing, appealing to, and gratifying the lust, passions, and sexual desires of the said child.

At the preliminary hearing, Officer Musgrove testified that he had interviewed the victim who stated that defendant tried to stick his pee pee inside [sic] of her pee pee. He reported that the victim said that this occurred when she lived with her mother at a Motel 6. The mother told him they stayed at the Motel 6 around September 19, and that the defendant was there for a couple of days before leaving. The victim said that, at the motel, defendant rubbed his penis on her vagina. She said that their clothing was on. She described defendants penis sticking out. The victim also reported that this happened while she lived with her mother at Finley Place. She said that he rubbed his penis, his pee pee, against her pee pee many times and indicated it was similar to what she had just described happening in the motel. Musgrove testified he spoke to defendant about this and he described that while baby-sitting he would wrestle with her and he would manipulate for her to get on his lap where they would be facing each other face to face. And he admitted rubbing his penis against her vagina. Further, defendant told Musgrove it happened two to three times at Motel 6 in Santa Rosa and two to three times at the residence on Finley.^[5]

Thus, taken together, the information and preliminary hearing testimony made clear the charges against defendant: that he committed six acts of molestation against the victim between beginning in early September 2002 and ending in early October 2002. The molestations took place first at Motel 6 and then at Finley Place. This is sufficient to satisfy the requirements of due process, as set out in Jones, supra, 51 Cal.3d 294.

Defendant, however, argues that the victims testimony did not describe the number of acts and, therefore, he did not have notice of how many violations occurred. The information makes clear that defendant was charged with six such acts, and there was evidence that defendant himself admitted sexual contact with the victim two to three times at each location. Nothing further is required. Moreover, defendants defense to the charges of molestation was not that he had not committed the six acts of molestation because he was elsewhere when it happened or the victim had mistaken him for someone else, but that the victim had fabricated the charges and no molestation had, in fact, taken place. A defendant has less reason to complain about the lack of notice and the inability to prepare a defense when he relies on a defense of credibility, rather than some other defense, such as alibi. (People v. Higgins (1992) 9 Cal.App.4th 294, 300.) We conclude, therefore, that defendant has failed to establish he was denied his due process right to fair notice.

B. New Trial Motion

Defendant argues that he was unrepresented, in violation of his right to counsel, when his new trial motion was presented to the court on August 25, 2003. We disagree.

On August 8, 2003, defendants attorney, Ande Thomas, informed the court that defendant had filed a Marsden motion, although he had not yet seen it. The court responded, Im going to appoint conflicts counsel, Harry Allens office, to assist you in the possible filing of a new trial motion. And well have an attorney from conflict counsel, Harry Allens office, appear on Monday to let the Court know how long it would take for new counsel to draft such a motion. So thats what were going to do. Conflicts counsel appeared on August 11, 2003, and informed the court she would begin investigation and discovery regarding a possible new trial motion. The court set the matter for further proceedings on August 25, 2003.

Defendant and Thomas appeared on August 25, 2003. In a closed hearing, Thomas told the court that defendant had sent him a copy of a motion for new trial that includes various arguments, one of them being ineffective assistance of counsel. The court stated, All right. The court must make a finding that I agree that Mr. Thomas was ineffectual. So I am looking at, looks like the original of your motion.

The court then addressed each of defendants ineffective assistance of counsel arguments and concluded, Motion of appointment to prepare the motion for new trial, the request for conflicts counsel is denied because the Court makes a finding that the public defender did not incompetently represent, which was a finding I had to make in order to appoint conflicts counsel. And the Public Defenders Office remains counsel of record. The court scheduled a hearing for the filing of a possible new trial motion or sentencing.

Counsel then stated, With regard to the motion for new trial, Mr. Ortega, has drafted a document that I provided to the Court, which is entitled Notice of Motion for New Trial based on a denial of due process. And I believe Mr. Ortega has set forth in there all of the arguments he wishes the Court to consider in connection with the motion for new trial. Counsel then stated, So I have no problem with him filing this in pro per and having the Court consider it. The court allowed the motion to be filed, set a date for the People to respond, and also set a hearing on the motion scheduled on the same date as sentencing.

After a number of continuances, on December 4, 2003, the court heard defendants new trial motion. Defendant was represented by attorney Thomas, the same public defender who had represented him throughout the proceedings. Defendant asked leave to orally present a new motion for a new trial, and asked the court to disregard his earlier motion. The court agreed that he could withdraw his earlier motion and permitted him to read his motion at the hearing. After the People responded to defendants claims, the court denied defendants motion.

Defendant now contends he was denied counsel because he was forced to file his new trial motion without the assistance of counsel. We disagree.

The record indicates defendant was represented by counsel throughout these proceedings. Although the trial court appointed conflicts counsel before it had ascertained whether there was a colorable claim of ineffective assistance of counsel, as is the general practice (People v. Stewart (1985) 171 Cal.App.3d 388, 396-397, disapproved on other grounds in People v. Smith (1993) 6 Cal.4th 684, 691-694), there is no question that defendant was represented by counsel when he presented his new trial motion.^[6] When defendant read his new trial motion into the record, his attorney assisted him in doing so, on one occasion by providing case citations, and on another by ensuring the court had consented to having defendant read his argument into the record. Accordingly, we reject defendants argument that he was forced to file a new trial motion without the assistance of counsel.

C. Substantial Evidence--Molestation

Defendant contends his six molestation convictions are not supported by substantial evidence because there was substantial evidence only of two touchings at each location, rather than three. We disagree.

The test on appeal is whether substantial evidence supports the conclusion of the trier of fact, not whether the evidence proves guilt beyond a reasonable doubt. [Citation.] The appellate court must determine whether a reasonable trier of fact could have found the prosecution sustained its burden of proving the defendant guilty beyond a reasonable doubt. (People v. Reilly (1970) 3 Cal.3d 421, 425.) In determining whether a reasonable trier of fact could have found defendant guilty beyond a reasonable doubt, the appellate court must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citations.] (People v. Johnson (1980) 26 Cal.3d 557, 576.)

Substantial evidence supports the six challenged convictions. Detective Musgroves testimony relating defendants admissions to him of a number of molestations, provides the requisite evidence of the number of acts committed. Detective Musgrove testified that defendant told him he rubbed his penis against the victims vagina two to three times at both the Motel 6 and Finley Avenue. The victim was also quite clear that defendant had molested her at the Motel 6 at least two times, testimony that is consistent with defendants statement that the molestation happened two or three times. As for Finley Avenue, the victim testified there were 20 molestations and, although defendant argues this testimony is inherently improbable, the trial court was well within its role as the fact finder to conclude that this testimony supported convictions on three counts of molestation at Finley Avenue.

D. Substantial Evidence--Failure to Register

Defendant contends that his conviction under section 290, subdivision (a)(1)(A) is not supported by substantial evidence. We disagree.

Section 290, subdivision (a)(1)(A), provides that convicted sex offenders such as defendant shall for the rest of his or her life while residing in California, or while attending school or working in California, as described in subparagraph (G), shall be required to register with the chief of police of the city in which he or she is residing, or the sheriff of the county if he or she is residing is located, in an unincorporated area or city that has no police department, and, additionally, with the chief of police of a campus of the University of California, the California State University, or community college if he or she is residing upon the campus or in any of its facilities, within five working days of coming into, or changing his or her residence within, any city, county, or city and county, or campus in which he or she temporarily resides.

Detective Musgrove testified that when he interviewed defendant in November 2002, defendant was registered at an address in Santa Rosa. Defendant did not live at this address, however, in November 2002. Rather, he told Musgrove he had been bouncing around. He stated he stayed sometimes in a vehicle parked at his place of employment. He also told Musgrove he stayed at a Motel 6 and for some time with the victim and her family. He admitted he did not register at any of these places. This constitutes substantial evidence to support the conviction for failure to register as a sex offender.

Defendant, however, states that even if appellant did reside and was required to register at one or more of those places [i.e., the motel, the vehicle or the Finley house], there was no evidence that he did not register there. Defendant himself, however, admitted he did not register at these addresses when he admitted he had not complied with the registration requirements. Accordingly, we reject this claim.

E. Exercise of Right to Trial

Defendant declined the Peoples offer that he plead guilty to either a 16-year sentence, or a 25-year sentence.^[7] After a trial, the court found him guilty of six separate sex crimes. The trial court sentenced defendant to 100 years to life, plus 34 years and four months in prison. Defendant now contends that, in imposing this sentence, the trial court improperly punished him for exercising his constitutional right to a trial. We disagree.

It is well settled that to punish a person for exercising a constitutional right is a due process violation of the most basic sort. [Citation.] . . . [A court] may not treat a defendant more leniently because he foregoes his right to trial or more harshly because he exercises that right. (In re Lewallen (1979) 23 Cal.3d 274, 278.) Therefore, the refusal of an accused to negotiate a plea with the prosecution must not influence the sentence imposed by the court after trial. Appellate courts in California and in other jurisdictions have vacated sentences when the trial court has apparently used its sentencing power, either more severely or more leniently than the norm, in order to expedite the resolution of criminal matters. (Id. at p. 279.) In Lewallen, for example, the court found that a trial courts comment at sentencing about a defendants decision to plead not guilty clearly reveals that [the court] gave consideration to petitioners election to plead not guilty in imposing sentence. That a defendant pleads not guilty is completely irrelevant at sentencing; if a judge bases a sentence, or any aspect thereof, on the fact that such a plea is entered, error has been committed and the sentence cannot stand. (Ibid.)

Nothing said by the trial court at the sentencing hearing in this case indicates that defendants decision to reject the proffered plea had any relevance to courts imposition of sentence. Nor does defendant point to any such statement. Instead, defendant relies on other circumstances, which, he argues, indicate that the court penalized him for exercising his right to a trial. However, in People v. Szeto (1981) 29 Cal.3d 20, 35, the court held that a defendant who admits the sentencing judge did not say anything reasonably giving rise to the inference that he was penalizing defendant for exercising his right to jury trial could not make out a claim for relief under Lewallen. The court observed that [t]he mere fact, if it be a fact, that following trial defendant received a more severe sentence than he was offered during plea negotiations does not in itself support the inference that he was penalized for exercising his constitutional rights. (Ibid.) Here, of course, defendant concedes the trial court said nothing that could give rise to an inference that it was imposing a sentence in order to penalize defendant for exercising his right to a jury trial.

Instead, defendant argues that the disparity between the sentence he was given and the one he was offered in exchange for pleading guilty to a single count of molestation, is so great that we must conclude it was motivated by a desire to punish him for exercising his constitutional rights. Defendant, however, was convicted of six counts of sexual abuse; he was offered a guilty plea as to one. At a minimum, these six convictions carried with them sentences far in excess of the sentence offered by the People for a guilty plea to one count. The contrast between the Peoples offer and the defendants ultimate fate does not indicate that the trial court intended to punish defendant for exercising his right to a fair trial. In our view, this contrast demonstrates defendants very poor judgment. To conclude otherwise would be to suggest that whenever a trial court sentences a defendant to a prison term far in excess of that offered in a plea agreement an untoward motive on the courts part must be found. This we will not do.

Defendant also states that no new facts arose during the course of the trial to justify the term ultimately imposed because the court already was aware of the nature of the allegations against him before the trial began. At the outset, we reject defendants suggestion that we must assume the courts sentence was illegitimately motivated simply because the prosecutor agreed, prior to trial, that an appropriate term, should defendant plead guilty to one count, would be either 16 or 25 years. We are not privy to the considerations that went into this arrangement, but assume that this sentence recognized in some way that by pleading guilty defendant was remorseful and willing to accept responsibility for his wrongdoing. Nor do we agree that the court could not take into account, at sentencing, aggravating factors that the court was either aware of prior to trial or that emerged during the course of the trial. Although the trial court may have been aware of the general contours of these crimes prior to trial, the detailed narration of them legitimately entered into the sentence imposed. We conclude, therefore, that defendants sentence did not penalize him for exercising his right to trial.

F. Right to Jury Trial on Probation Eligibility and Prior Conviction

In sentencing defendant, the trial court determined that he (a) had a prior conviction under section 288 and (b) was not eligible for probation under section 1203.066. Defendant now argues he was entitled to a jury trial on these two issues. We disagree and find no error as to either issue under Blakely and Cunningham.

The trial court sentenced defendant to fifty years to life for his conviction of two counts of violating section 288, subdivision (a). In imposing this sentence, the trial court relied on section 667, subdivision (e)(1), which provides that [i]f a defendant has one prior serious and/or violent felony conviction that has been pled and proved, the determinate term or minimum term for an indeterminate term shall be twice the term otherwise provided as punishment for the current serious and/or violent felony conviction. The court determined that defendant had such a prior conviction and, therefore, was required to double whatever sentence it imposed on defendant.

The sentence imposed on defendant was mandated by sections 667.61, subdivisions (a), (c)(7), and (d)(1). Section 667.61, subdivision (a), provides that [a] person who is convicted of an offense specified in subdivision (c) under one or more of the circumstances specified in subdivision (d) . . . shall be punished by imprisonment in the state prison for life and shall not be eligible for release on parole for 25 years . . . . A violation of section 288 is an offense specified in subdivision (c) ( 667.61, subd. (c)(7)) unless the defendant qualifies for probation under subdivision (c) of section 1203.066.^[8] Section 667.61, subdivision (d)(1), applies to offenses in which [t]he defendant has been previously convicted of an offense specified in subdivision (c), as defendant had been. Therefore, the court was required to impose a 25-year sentence on defendant, a sentence it doubled pursuant to section 667.61, subdivision (a).

In sentencing defendant, the court specifically found he had been previously convicted of a violation of section 288, subdivision (a). The court also found that defendant did not qualif[y] for probation under subdivision (c) of section 1203.066. Defendant contends he was entitled to jury trials on both these issues. We disagree. As pointed out by the People in their supplemental, post-Cunningham brief, the sentence imposed on defendant was not at all discretionary, but a mandatory sentence which could be reduced only if defendant had qualified for probation under section 1203.066, subdivision (c), which he did not. No additional findings were required to be made to justify that sentence; to the contrary, additional findings would be required to ameliorate it, exactly the opposite situation than obtained in Cunningham.

With regard to the finding of his prior conviction, neither the state nor federal constitutions confer on defendant the right to have a jury determine factual issues related to prior convictions for purposes of a sentencing enhancement. (People v. Epps (2001) 25 Cal.4th 19, 23.)^[9] This right, therefore, is a state statutory right. Section 667.61, subdivision (i), provides that for the penalties provided in this section to apply, the existence of any fact required under subdivision (d) . . . shall be alleged in the accusatory pleading and either admitted by the defendant in open court or found to be true by the trier of fact. Defendant waived his right to be tried by a jury and was tried instead by the court. The court determined the truth of his prior conviction. In so doing, it complied with section 667.61. (See People v. Berutko (1969) 71 Cal.2d 84, 94 [waiver of jury trial in general included waiver of jury in both the guilt phase and in the determination of the truth of defendants prior conviction]; People v. Jarmon (1992) 2 Cal.App.4th 1345.)

As noted above, a jury trial was not required to justify the conclusion that defendant did not qualify for probation under section 1203.066, subdivision (c). Section 1203.066 provides that persons who would otherwise be ineligible for probation under section 1203.066, subdivisions (a)(7), (8) and (9), may be eligible for probation so long as the court makes certain findings. Defendant, however, is not described by subdivisions (a)(7), (8) or (9), the only subdivisions in section 1203.066 which permit probation. Rather, he fell within section 1203.066, subdivision (a)(5), which provides that probation shall not be granted to [a] person who is convicted of committing a violation of Section 288 . . . and who has been previously convicted of a violation of Section . . . 288 . . . . Defendant was convicted of a violation of section 288 and had previously been convicted of the same crime. Therefore, he is ineligible for the grant of probation contemplated under section 1203.066, subdivision (c).^[10]

Defendant, however, suggests his conviction is described under section 1203.066, subdivision (a)(7), and this makes him eligible for probation, so long as he meets the criteria set out in section 1203.066, subdivision (c). We do not agree. Subdivision (a)(7) applies to [a] person who is convicted of committing a violation of Section 288 . . . against more than one victim. Such a person, of course, would only be eligible for probation if he had not been previously convicted of a violation of section 288. ( 1203.066, subd. (a)(5).) Defendant, however, had such a prior conviction. Accordingly, defendant was not eligible for probation and the question of whether a jury was required to make the findings set out in section 1203.066, subdivision (c), is irrelevant.^[11]

G. Imposition of Consecutive Sentences

Defendant argues the court erred in sentencing him to consecutive terms on all counts. He also contends counsel was ineffective for failing to object on these grounds. We conclude defendant waived this claim and, moreover, his counsel was not ineffective in failing to object on these grounds because an objection would have been unavailing. (Strickland v. Washington, supra, 466 U.S. at p. 694; People v. Ledesma, supra, 43 Cal.3d at pp. 215-218.)

The trial court explained that there is [sic] sufficient grounds for this court to be imposing consecutive sentences in that the crimes that you are convicted of did happen at different places. They happened either at a motel or at the grandmothers house. And each of the incidents were separate and separated in time. And under those circumstances, this Court has more than enough of a factual basis to be imposing consecutive instead of concurrent sentences. Defense counsel asked the court what its authority was for the full term consecutive sentence on count II and the court replied, [t]he authority that I already stated, that each and every count is separate and separated in time, separated in place. And Im sentencing consecutively. Beyond seeking clarification of the courts authority for imposing a consecutive sentence on count II, counsel did not object to the courts reasons for imposing any of the sentences. The failure to do so constitutes a waiver. (People v. Scott (1994) 9 Cal.4th 331, 353.)

Moreover, even had counsel made such an objection, it would have been denied. The trial court was required to impose consecutive sentences for counts one and two, under section 667.61, subdivision (a) and (d), and section 1170.12 when it found the prior conviction allegations to be true. Under these statutes, the trial court is required to sentence consecutively when a defendant with prior convictions is convicted of multiple current felonies which were not committed on the same occasion, and not arising from the same set of operative facts . . . . ( 667, subds. (c)(6), (7); 1170.12, subds. (a)(6), (7); see also People v. Coelho (2001) 89 Cal.App.4th 861, 864.) The court found that the molestations occurred at different places and were separated in time. In so doing, the court complied with this requirement.

The court also imposed consecutive sentences on counts three through seven. California Rules of Court, rule 4.425(a)(1) provides that a consecutive sentence may be imposed when [t]he crimes and their objectives were predominantly independent of each other. Rule 4.425(a)(3) provides that a court may impose a consecutive sentence when [t]he crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior. The trial court quite clearly found that the molestations did occur at different times and separate places and, therefore, did not abuse its discretion when it imposed consecutive sentences. (People v. Smith (1984) 155 Cal.App.3d 539, 545-546.)

H. Imposition of Upper Term on Count 3.

Defendant contends his sentence must be reversed pursuant to Blakely and Cunningham because the trial court committed constitutional error by imposing the upper term sentence for count three molestation ( 288, subd. (a)) battery based on aggravating factors that were not supported by jury findings. We disagree. The controlling principle was announced by the United States Supreme Court in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), which states: Other 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. (Id. at p. 490.)

In Blakely, the Supreme Court held that a Washington State court violated the Apprendi rule and denied a criminal defendant his constitutional right to a jury trial by increasing that defendants sentence for second-degree kidnapping from the standard range of 49 to 53 months to 90 months based on the trial courts finding that the defendant acted with  deliberate cruelty.  (Blakely, supra, 542 U.S. at pp. 303-304.) In reaching this conclusion, the court clarified that, for Apprendi purposes, 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. (Ibid.)

Blakely raised concerns about the constitutionality of Californias Determinate Sentencing Law (DSL). Under our DSL, the maximum sentence a judge may impose for a conviction without making any additional findings is the middle term. Penal Code section 1170, subdivision (b), states that the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime. Furthermore, California Rules of Court, rule 4.420(b), states that [s]election of the upper term is justified only if, after a consideration of all the relevant facts, the circumstances in aggravation outweigh the circumstances in mitigation. If, pursuant to Blakely, the statutory maximum sentence under Californias DSL is the middle term, then an upper term sentence based on aggravating circumstances, other than the fact of a prior conviction, that are found by the trial court rather than by a jury would violate the Apprendi rule.

The California Supreme Court attempted to resolve the constitutional issue in People v. Black (2005) 35 Cal.4th 1238 (Black I). The BlackI court held that the judicial fact-finding that occurs when a judge exercises discretion to impose an upper term sentence or consecutive terms under California law does not implicate a defendants Sixth Amendment right to a jury trial. (Id. at p. 1244.) The court reasoned that, under Californias sentencing system, the upper term is the statutory maximum and a trial courts imposition of an upper term sentence does not violate a defendants right to a jury trial under the principles set forth in Apprendi, Blakely, and[United States v.] Booker [(2005)543 U.S 220 (Booker)]. (Black I, at p. 1254.)

However, the United States Supreme Court held that Californias DSL does violate the constitutional principle embodied in the Apprendi rule. (Cunningham, supra, (2007) 549 U.S.__ [127 S.Ct. 856].)Cunningham held that the DSL, by placing sentence-elevating fact-finding within the judges province, violates a defendants right to trial by jury safeguarded by the Sixth and Fourteenth Amendments. (127 S.Ct. at p. 860.) The court reasoned that, under the DSL, the middle term not the upper term is the relevant statutory maximum because (1) an upper term sentence can be imposed only if the judge finds aggravating circumstances, and (2) aggravating circumstances depend on facts found discretely and solely by the judge. Furthermore, the court found, [b]ecause circumstances in aggravation are found by the judge, not the jury, and need only be established by a preponderance of the evidence not beyond a reasonable doubt, . . . the DSL violates Apprendis bright-line rule: Except for 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. [Citation.] (Cunningham at p. 868.)

Our Supreme Court then issued its decision in People v. Black (2007) 41 Cal.4th 799 (Black II). In Black II, the court concluded that if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not legally entitled to the middle term sentence, and the upper term sentence is the statutory maximum. (Black II at p. 813.) The court went on to hold that, pursuant to Apprendi, the fact of a prior conviction is an aggravating circumstance that may be found by the court, rather than a jury, and used to impose the upper term without offending defendants federal constitutional rights. (Black II at p. 818.)

In the present case, the trial court specifically found two recidivism factors justifying the upper term on count 3. First of all, it found that the defendants criminal history was extensive, as far as prior convictions for all manners of different crimes. It also found that he had demonstrated unsatisfactory prior performance on both parole and probation. Pursuant to Black II, 35 Cal.4th at page 818, because the trial court relied on at least one recidivist factor in imposing the upper term, defendants federal constitutional right to a jury trial under the Sixth Amendment and his right to due process under the Fourteenth Amendment as explicated in Blakely, supra, 542 U.S. 296 and Cunningham, supra, 549 U.S.__ [127 S.Ct. 856] were not violated.

IV. DISPOSITION

The judgment of conviction is affirmed.

_________________________

Haerle, J.

We concur:

_________________________

Kline, P.J.

_________________________

Richman, J.

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^[1]All further statutory references are to the Penal Code, unless otherwise indicated.

^[2] The events described by the victim took place in 2002.

^[3]The stipulation was that the Sonoma County Sheriffs deputy who took a statement of mother in 2000, would testify that mother stated a man referred to as Happy had put his finger into [the victims] vagina and then put his tongue into her vagina.

^[4]Defendant relies extensively on People v. Van Hoek, supra, 200 Cal.App.3d 811, and cases following it. Given that our Supreme Court specifically disapproved of this case in Jones, we do not look to Van Hoek for guidance in reaching our decision.

^[5] At oral argument, defendants counsel argues that Musgrove retracted this statement when he responded yes when asked whether defendant admitted to you at least one act of genital-to-genital contact with [the victim] . . . . In our view, Musgroves affirmative response does not amount -- in the slightest -- to a retraction of his testimony on direct examination that defendant admitted to two or three acts of molestation.

^[6]After a brief appearance on August 11, 2003, conflicts counsel made no further appearances. This was apparently so because, on August 25, 2003, the court denied defendants request for conflicts counsel and stated that the Public Defenders Office remains counsel of record.

^[7]The People point out that the record is unclear whether the prosecution offered appellant a 16-year or 25-year sentence. Appellants trial counsel stated during a closed hearing that the prosecution had offered a 16-year sentence in exchange for appellant pleading guilty to one count of section 288 and admitting his prior strike conviction. At sentencing, the prosecutor denied that such an offer was ever made and suggested that appellant may have been offered a 25-year sentence instead.

^[8]Defendant does not qualify for probation under section 1203.066 because he had previously been convicted of a violation of section 288, subdivision (a). ( 1203.066, subd. (a)(5).)

^[9]Defendant contends that, under Apprendi v. New Jersey(2000) 530 U.S. 466, 490 (Apprendi), the federal Constitution requires that a jury find the existence of his 1991 prior conviction beyond a reasonable doubt. This claim has been rejected in People v. Thomas (2001) 91 Cal.App.4th 212, 222-223, and Thompson v. Superior Court (2001) 91