PEOPLE v. DIAZ

Filed 4/25/07

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from a judgment of the Superior Court of Los Angeles County. Fred J. Fujioka, Judge. Affirmed as modified.

Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves and Dane R. Gillette, Chief Assistant Attorneys General, Pamela C. Hamanaka, Senior Assistant Attorney General, Donald E. De Nicola, Deputy Solicitor General, Marc E. Turchin, Joseph P. Lee, Alene M. Games, Kristofer Jorstad, Lawrence M. Daniels, and Michael R. Johnsen, Deputy Attorneys General, for Plaintiff and Respondent.

Mark Diaz was convicted of sexual penetration of a victim who was unable to resist due to intoxication, anesthesia, or controlled substance (Pen.[1]Code,  289, subd. (e)), two counts of oral copulation by means of intoxication, anesthesia or controlled substance ( 288a, subd. (i)), and two counts of rape by intoxication, anesthesia or controlled substance ( 261, subd. (a)(3)). He appeals his conviction and sentence on six grounds, alleging that: (1) the primary evidence against him, a videotape, was improperly seized and should have been suppressed; (2) the videotape was inadmissible hearsay and its admission violated his rights under the Confrontation Clause of the United States Constitution; (3) there was insufficient evidence of the victims inability to give consent; (4) the instructions on the subject of rape improperly created a mandatory presumption and shifted the burden of proof to him; (5) the trial court improperly denied his motion for a new trial; and (6) the imposition of upper term and consecutive sentences violated his Sixth Amendment right to a jury trial as set forth in Blakely v. Washington (2004) 542 U.S. 296 (Blakely). We affirm the convictions but impose midterm sentences on three counts.

FACTUAL AND PROCEDURAL BACKGROUND

Monica T. reported to the Pasadena Police Department that Diaz had sexually assaulted her while she was unconscious. After her report, the police sought and received a warrant to search Diazs home for evidence relating to the sexual assault. The police seized various items from Diazs apartment, including a videotape. The videotape did not depict Monica T.; instead, it was a recording of Diaz engaging in sexual intercourse and other sexual acts with an unknown woman who appeared to be semi-conscious.

Diaz was charged with 14 sexual offenses against Monica T. and the unknown woman, known as Jane Doe. At trial, Monica T. testified, but Jane Doe did not. The jury viewed the videotape depicting Diaz engaged in sexual acts with Jane Doe. The jury acquitted Diaz of all counts pertaining to Monica T., but convicted him on the five counts alleged against him in which Jane Doe was the victim. The trial court denied Diazs motion for a new trial based on error in admitting the videotape and the discovery of new evidence.

The trial court sentenced Diaz to the upper term of eight years on count 10, sexual penetration of a person prevented from resisting due to intoxication, anesthesia or controlled substance ( 289, subd. (e)). The court imposed one-third the midterm sentence on the two counts of oral copulation by means of anesthesia or controlled substance ( 288a, subd. (i)), to be served consecutively. On counts 13 and 14, rape by intoxication, anesthesia or controlled substance ( 261, subd. (a)(3)), the trial court sentenced Diaz to consecutive upper terms under section 667.6, subdivision (d). Diaz appeals.

DISCUSSION

I. Search Warrant

The trial court denied Diazs motion to suppress the videotape of his sexual assaults on Jane Doe. Diaz appeals this ruling, claiming that the videotape should have been suppressed by the trial court because the search warrant was overly broad and unsupported by probable cause with respect to the seizure of videotapes. In determining whether an affidavit is supported by probable cause, the magistrate must make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place. (Illinois v. Gates (1983) 462 U.S. 213, 238.) A magistrates determination of probable cause is entitled to deferential review, and is to be sustained by a reviewing court as long as there was a substantial basis for the magistrates conclusion that the legitimate objects of the search were probably present on the specified premises. (People v. Kraft (2000) 23 Cal.4th 978, 1040-1041.) The determination will not be overturned unless the supporting affidavit fails as a matter of law to support the finding of probable cause, and doubtful or marginal cases are resolved in favor of upholding the warrant. (Fenwick & West v. Superior Court (1996) 43 Cal.App.4th 1272, 1278.) Diaz bears the burden to establish invalidity of the search warrant. (Ibid.)

While the affidavit was sufficient to establish probable cause to search Diazs home, it did not demonstrate probable cause to search for videotapes in the course of that search. Nothing in the affidavit tends to suggest that videotaped evidence would exist or that there would be a reason to examine videotapes. The affidavit does not set forth anything said by Monica T. regarding cameras, film, electronics, or any subject that would suggest that videotapes would exist that are related to the crime. Nothing about the offenses described suggests that videotaped evidence would exist or be related to the acts Monica T. alleged. We therefore cannot say that the magistrate had a substantial basis for. . . conclud[ing] that probable cause existed (Illinois v. Gates, supra, 462 U.S. at pp. 238-239) with respect to videotapes.

Even though the warrant was deficient, we agree with the trial court that it was not so facially defective as to prevent officers from reasonably relying on it. Under United States v. Leon (1984) 468 U.S. 897, 923, the exclusionary rule does not bar the use of evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate unless (1) the issuing magistrate was misled by information that the officer knew or should have known was false; (2) the issuing magistrate abandoned his or her judicial role; (3) the affidavit was so lacking in indicia of probable cause that it would be entirely unreasonable for an officer to believe such cause existed; or (4) the warrant was so facially deficient that the executing officer could not reasonably presume it to be valid. Here, there is no indication that the magistrate abandoned her role or was misled by any false information. The affidavit demonstrated abundant probable cause for a search even if the scope of the search to cover videotapes may be questioned, so it cannot be said that the affidavit was so lacking in indicia of probable cause that it would be entirely unreasonable for an officer to believe that probable cause existed. Diaz asserts that neither the officers conducting the search nor the officer who sought its authorization acted as reasonable officer[s] would and could act in similar circumstances relative to the videotape,but offers no argument to support this contention. Contrary to Diazs claim, nothing in the record that suggests that the officers who carried out the warrant acted unreasonably. Moreover, the application for the search warrant demonstrates that the officer who sought the warrant acted reasonably: he interviewed the complaining witness, who described the events, location, and perpetrator in detail and he performed a computer check that confirmed Diazs description and address, then prepared the statement of probable cause and declaration, specifically requesting that the warrant cover a variety of specific items related to the alleged offenses. Certainly the affidavit was not lacking in indicia of probable cause to search the apartment; and to the extent that the videotapes were not identified with sufficient particularity or the probable cause for their seizure appropriately delineated, the search warrant was not so facially defective that executing officers could not reasonably believe it to be valid. The exclusionary rule does not prevent the use of the videotape here.

II. Admission of the Videotape

Diaz argues that the videotape of his sexual conduct with Jane Doe should not have been admitted because it violates his Sixth Amendment rights (Crawford v. Washington (2004) 541 U.S. 36) and because it is hearsay that is not admissible under any exception to the hearsay rule. Both of Diazs arguments are premised on the view that the evidentiary value of the videotape was to show consent or lack thereof. Diaz argues that consent is not necessarily verbal, at least in this sexual context, for in the course of sexual fantasy and role-playing, a woman could be saying no but meaning yes. Diaz argues that because Jane Does state of mind is relevant to determining whether her repeated use of the words No, Stop, and similar negative responses to the sexual conduct Diaz was engaging in were actually intended to deny or withdraw consent, the statements on the tape were inadmissible hearsay and testimonial statements.

The problem with Diazs argument is its starting point. The evidentiary value of the videotape was not to demonstrate that Jane Doe gave or did not give consent to the sexual acts Diaz engaged in. In fact, whether she consented is entirely irrelevant to the charges against Diaz. Diaz was not charged with committing oral copulation, copulation with a foreign object, and rape because he lacked Jane Does consenthe was charged with the specific versions of those offenses that depend not on an unwilling victim but on an incapacitated one. (See  289, subd. (e) [Any person who commits an act of sexual penetration when the victim is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance . . .  commits a crime]; 288a, subd. (i) [Any person who commits an act of oral copulation, where the victim is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance . . . . commits a crime]; 261, subd. (a)(3) [rape is the act of sexual intercourse [w]here a person is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance . . .].) The value of the videotape for purposes of the charges against Diaz relating to Jane Doe was that the videotape permitted the jury to evaluate Jane Does condition while Diaz was performing sexual acts upon her: her mostly motionless body, her grogginess and lack of alertness, her slurred speech and frequent incoherence, her failure to rouse unless slapped (and sometimes even when slapped), and other indicia of her level of impairment. While Jane Doe did speak on the tape, her statements were not offered for the truth of the matter asserted with respect to any of the charges on appeal. The videotape therefore was not hearsay in this context (Evid. Code,  1200 [hearsay is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated]), nor was it a testimonial statement offered for the truth of the matters asserted. (Crawfordv. Washington, supra, 541 U.S. at pp. 51-53, 59, fn. 9 [describing testimonial statements and observing that the Confrontation Clause does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted].)

Diaz does point out three instances in closing argument in which the prosecutor referred to the videotape arguably as much for the meaning of Jane Does statements as for her capacity. While the primary use of the videotape was to argue that the victim was in fact incapacitated, the prosecutor did, in addition, assert that Jane Does statements corroborated the account of specific conduct given by complaining witness Monica T. and cast doubt upon the defendants attestations to his own good character. To the extent that these brief arguments constituted an erroneous hearsay use of the videotape, we think that any error was harmless for two reasons. First, these uses of the videotape pertained to issues collateral to Diazs conviction on the charges involving Jane Doenamely, the charges involving Monica T. (of which defendant was acquitted) and to Diazs self-proffered character evidence. Because of the unusual circumstance here that Diazs conduct with Jane Doe was filmed and subsequently viewed by the jury, Diazs character was irrelevant to the central question of Jane Does capacity to consent to the sexual acts Diaz unquestionably performed. In light of the evidence of Diazs conduct, erroneous admission of passing arguments based on a hearsay use of this otherwise admissible evidence was harmless.

Second, the prosecutor clearly, consistently and frequently reiterated that consent was not relevant to the charges involving Jane Doe: When were talking about intoxication . . . the elements are different than rape using force. And how they are different is in the following regard: when it is alleged that someone has been raped or committed a rape crime by the use of force, then the aspect of consent comes into play because part of the elements of rape by force is that it was against the victims will. In other words, she didnt want this to happen. [] Okay. The difference with intoxication andthe Legislature is very smart in this regardis actual consent. Thats what Ive been talking about. Actual consent is irrelevant. Youre going to go, why have I been talking about it so much? Im talking about it because the defense is going to go into it. Actual consent is irrelevant to any sexual charge that involves intoxication.

The prosecutor continued, Your job is not to determine whether or not she agreed to this . . . its just irrelevant. [] What the law says, the person has to be prevented from resisting by the intoxication. What prevented from resisting means is she doesnt even have the reasonable judgment possible to give that consent. So what that means is that the emphasis is not on the effect of the intoxication on her powers of resistance. The emphasis is on the effect o[n] her powers of judgment. Its a very different thing. [] If you look at that video, again just using your reasonable common sense, you will see that this woman didnt have any capacity at that point in time to have any kind of reasonable judgment or any kind of reasonable discussion as to what he was doing to her. The jury instructions (CALJIC Nos. 1.23.2, 10.02, 10.13, 10.33) on the charges concerning Jane Doe further cemented that the issue was not consent but capacity to consent. Given the clarity with which the elements of the crimes against Jane Doe were presented to the jury by the prosecutor and by the jury instructions, any incidental hearsay reference to the videotape as evidencing a lack of consent was harmless.

III. Sufficiency of the Evidence of Incapacity to Consent

Diaz contends that his convictions must be overturned because there was insufficient evidence, largely ignoring the issue of capacity to consent in favor of insisting that the rapes here are rapes solely by virtue of the States post-coital characterization and that the victim was damaged not by being sexually assaulted while semi-conscious but by the States decision to play and play a videotape of an intimate encounter between her and appellant . . . . We could not disagree more strongly, and observe that Diazs blame-shifting argument borders on the frivolous, as the evidence was plainly sufficient to permit a jury to convict him and this court may not usurp the function of the jury on appeal. (People v. Brown (1984) 150 Cal.App.3d 968, 970 [When a jurys verdict is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted, which will support it, and when two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the jury].)

We have reviewed the evidence and conclude that it is sufficient to permit a reasonable jury to conclude that Jane Doe lacked the capacity to consent to commit to sexual acts. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206 [appellate court reviews the record in the light most favorable to the judgment and determines whether it discloses substantial evidence such that a rational trier of fact could find the defendant guilty beyond a reasonable doubt].) The defendant captured the sex acts he performed on videotape. For much of the video, Jane Doe lies limp and motionless, with her eyes closed. She periodically attempts to roll to her side, to cover her vaginal area with her hands, or to close her legs as Diaz positions himself to assault her. She moans and mumbles, often incoherently, slurring the few words and phrases she does say. Diaz drags her across the bed to arrange her limbs and position her body for the camera, but he is hampered by her limpness and her tendency to roll onto her side as soon as he lets go of her legs. He slaps her repeatedly and appears to attempt to rouse her from her stupor to cause her to perform sex acts on him. From watching Diazs videotape, a reasonable jury could infer, as it did here, that the largely insensible Jane Doe was too intoxicated to give legal consent and that Diaz knew or should have known that fact. (See People v. Giardino (2000) 82 Cal.App.4th 454, 462.)[2]

IV. Jury Instructions

A.CALJIC No. 1.23.1

CALJIC No. 1.23.1 defines consent as positive cooperation in an act or attitude as an exercise of free will. Diaz alleges that his convictions must be overturned because this definition of consent creates a rebuttable mandatory presumption of lack of consent where there is not positive proof of assent, thereby improperly shifting the burden from the prosecution to prove lack of consent to the defense to prove consent.

As has already been discussed above, consent is not the question with respect to the charges on which Diaz was convictedall of those counts depended on a victim who was legally incapable of consenting. The relevant jury instructions on the counts on which Diaz was convicted are CALJIC Nos. 1.23.2, 10.02, 10.13, and 10.33, which establish that the prosecution must prove that the alleged victim was prevented from resisting the act by an intoxicating substance or a controlled substance. The existence or absence of consent, and therefore CALJIC No. 1.23.1, was only a question in the charges involving Monica T., and Diaz was acquitted of all those counts.

B.CALJIC No. 1.23.2

Diaz then turns his attention to CALJIC No. 1.23.2, which defines the term prevented from resisting for the purposes of the sexual offense charges based on intoxication. He claims that the instruction asks the defendant [to] prove too much which cannot be proven, and allows too much by way of presumption. According to Diaz, that which must be but cannot be proven is what is in the mind of the victim, and the instruction, he claims, creates a bubble around the intoxicated victim which cannot be pierced other than by showing she was not intoxicated . . . .

Diazs reading of CALJIC No. 1.23.2 strains credulity. It does not create an irrebuttable presumption that an intoxicated woman is a woman who has been prevented from resisting . . . . In fact, the instruction as given advised the jury not to equate intoxication and being prevented from resisting: It is not enough that the alleged victim was intoxicated or impaired by the controlled substance to some degree . . . .  Impaired mentality may exist and yet the individual may be able to exercise reasonable judgment with respect to the particular matter presented to his or her mind. Instead the level of intoxication and the resulting mental impairment must have been so great that the alleged victim could no longer exercise reasonable judgment concerning that issue.

The instruction also does not require the defendant to show[] the conduct assented to by the intoxicated victim was not the product of a lack of rationality, meaning either that the conduct assented to was objectively reasonable or that the conduct was the sort of conduct this victim would consider subjectively reasonable even if she were not intoxicated. The standard is an objective one: considering all of the surrounding circumstances, did the victim possess the ability to exercise reasonable judgment? The jury is capable of making this determination. (People v. Linwood (2003) 105 Cal.App.4th 59, 68 [Can a jury determine whether a defendant reasonably should have known that a persons level of intoxication was such as to prevent him or her from resisting an act of sexual intercourse? Yes].) The instruction does not, as Diaz claims, require a defendant to prove reasonableness either by establishing community standards of morality or delving into prohibited evidence of the victims moral standards. The instruction raises only the question of the victims capacity to exercise reasonable judgment, not whether her judgments are reasonable based on her personal moral beliefs or community moral standards.

Diaz has not demonstrated any error in giving CALJIC No. 1.23.2.

V. Denial of Motion for New Trial

Diaz claims that the trial court erred in denying his motion for new trial because he presented sufficient new evidence to warrant a new trial. A new trial may be ordered [w]hen new evidence is discovered material to the defendant, and which he could not, with reasonable diligence, have discovered and produced at the trial. ( 1181, subd. 8.) In ruling on a motion for new trial based on newly discovered evidence, the trial court considers the following factors: 1. That the evidence, and not merely its materiality, be newly discovered; 2. That the evidence be not cumulative merely; 3. That it be such as to render a different result probable on a retrial of the cause; 4. That the party could not with reasonable diligence have discovered and produced it at the trial; and 5. That these be shown by the best evidence of which the case admits. [Citations.] (People v. Delgado (1993) 5 Cal.4th 312, 328.)

Diaz submitted five declarations in support of his new trial motion, all concerning Jane Doe. Diazs girlfriend declared that she had spoken with Jane Doe in March 2005. She asserted that in that conversation Jane Doe said that she did have a prior sexual relationship with Diaz and that she had gone out drinking with Diaz on occasion. She also claimed that she told Jane Doe about the videotape and that Jane Doe became very concerned about whether somebody saw the video and wanted to know the whereabouts of the tape. At no time did [Jane Doe] ever indicate that her contact with Mark [Diaz] at any time during their sexual relationship was against her will and without her consent. According to the girlfriend, Jane Doe was reluctant to come forward because of her own personal problems and her need to protect herself.

The declarations of Laura Eldridge and Angie Rodriguez were identical in all pertinent respects. Both women declared that in March 2005 they had a telephone call with a woman who identified herself as the victim in this case. They said that Jane Doe acknowledged having a sexual relationship with Diaz and recounted the same response when they mentioned the videotape: Although [Jane Doe] never indicated that she did not know of the video, her main concern was where it was and who would see it, seeming to be embarrassed about the video. Their declarations stated that Jane Doe said she would only talk about her relationship with Diaz with Diazs girlfriend, the first declarant, and that she would not come forward because of personal problems and it was extremely uncomfortable to talk about the subject matter because of her very strict mother.

A private investigator stated that he had contacted Jane Does family members, and that he then during trial found her roommate, who said that Jane Doe was taking final exams at that time. Since March I have been making constant efforts to talk to the people at the apartment who I later learned were [Jane Does] sister (the alleged roommate) and mother who constantly were trying to protect [Jane Doe]. He learned about an arrest warrant for Jane Doe. In June 2005 he subpoenaed Jane Does sister to come to court to give information on Jane Does whereabouts. All he notes is that the sister was reluctant to come to court and that she came with an attorney, who indicated that he would attempt to get Jane Doe to cooperate.

Diazs trial attorney declared that the defense has been making efforts prior to, during, and even after trial to locate [Jane Doe] . . . . He did not detail any of his efforts made before or during trial, or explain why if the three declarants were talking with Jane Doe in March 2005 (voir dire began March 2, 2005) Jane Doe could not have been located and subpoenaed for the trial. Instead, counsel discussed a post-trial, pre-sentencing meeting on July 20, 2005, between Jane Doe, defense counsel, and the prosecutor. According to counsel, at this meeting Jane Doe stated that she had socialized with Diaz over a period of a month after she met him at a Pasadena bar. Jane Doe confirmed that she did drink with defendant on multiple occasions and never drank to the point where she would not appreciate her surroundings and was always in control of her actions. She denied having any sexual relationship with Diaz and said that she did sleep over at Diazs home but stayed on the couch in the living room. She was unable to explain why she would be seen naked except for high-heeled boots on the videotape. Jane Doe also had no explanation for why she would have referred to Diaz as baby on the tape if they had no sexual relationship.

At the hearing on the motion for a new trial, the prosecutor offered testimony as an officer of the court as to what Jane Doe said at the joint interview described by Diazs trial attorney. The prosecutor said, What was left out of counsels declaration is she indicated she had been indeed contacted by those three individuals, that they attempted to have her change her story or tell a story that was favorable to Mark [Diaz]. She refused to do so. What is also left out is she indicated that she was indeed there on this particular evening, that she had been with him socially, not romantically, not sexually at any time before this, and that she remembers being inside of his apartment or condo, that she remembers meeting [Diazs girlfriend], and that the next thing she remembers is waking up the next day in the neighbors apartment and stating, quote, I felt like I had been drugged.

The trial court denied the motion, observing that it is important to note that, although this case took two years to get to trial, within months Ms. [Doe] was contacted. As an experienced trial counsel, I could see reasons why Mr. Kessel [defendants trial counsel] did not subpoena her in for the trial. And I think that was a legitimate trial tactic, but now they cant take advantage of it and ask that the casethe charges which Mr. Diaz was tried and convicted be retried. Especially now since this is a one-victim case. And as I indicated, the statements made by [Jane Doe] that are in Mr. Kessels motion are not inconsistent with the prosecutors theory. Especially the part where she says that she did not have a sexual relationship, does not know how she ended up naked in bed with the defendant. Im paraphrasing that last statement. But given that thats completely consistent with the offenses charged. Defense counsel asserted that he had tried to find this alleged victim. The court responded, You are a very, very good trial attorney, and Im not trying to use this to hoist you, but you are, and the case was well tried. Given the state of what we have in these declarations and given what Mr. Martin [the prosecutor] . . .  said that she would have testified to, I think that a careful, diligent, intelligent[] trial attorney would not call her as a witness. She was a loose can[n]on for you. []  . . . Im not faulting you for not . . . locating her or putting her on during the course of the trial, but I do believe that you could have. I think that you made a reasonable tactical decision.

We review the trial courts decision for an abuse of discretion (People v. Delgado, supra, 5 Cal.4th at p. 328), and find none whatsoever. While there is no question that if Jane Doe had appeared at trial, her testimony would have been material and very important on the issue of whether she was prevented by intoxication from resisting the sexual acts depicted in the videotape, that alone does not entitle Diaz to a new trial. Diaz insists that the statements in the declarations he submitted with his motion for new trial directly contradicted the Governments fundamental thesis that appellant had sex with [Jane Doe] against her will, whether because [she] did not consent to sex with appellant, withdrew her consent, or was so intoxicated her consent was invalid, but we do not see any contradiction. None of the declarants testified that Jane Doe said that she was not so intoxicated that she could not exercise reasonable judgment at the time of the events depicted. None of the declarants asserted that Jane Doe knew of the tape or that she even knew at the time she was engaging in sexual activity. The declarants observation that Jane Doe did not claim to be unaware of the tape is not equivalent to a statement that she was contemporaneously aware of and able to consent to what happened that night. Diazs evidence, even when considered without reference to the additional information about Jane Does statements provided by the prosecutor, does not, as he asserts, create reasonable doubt or make a different result probable if a new trial were to be held. (Delgado, at p. 328.)

Moreover, this is not a case in which Jane Doe was unknown before and during trial. It appears from Diazs own evidence that individuals aligned with the defense had located her by the time of trial in March 2005. There is no reason offered for why the final steps could not have been taken to secure Jane Does presence in court at that time, and indeed, there is no sign in the record that defense counsel, close on the heels of his witness, ever requested a continuance of the trial to bring Jane Doe into court. Instead, the defense strategy was to attack the use of the videotape as violating Diazs Confrontation Clause rights because he could not confront and cross-examine Jane Doe. Diaz has not established that he could not, with reasonable diligence, have discovered and produced this witness at trial. (People v. Delgado, supra, 5 Cal.4th at p. 328.) The trial court did not abuse its discretion when it denied the motion for a new trial.

VI. Sentencing Issues

The trial court sentenced Diaz to the upper term of eight years on count 10, sexual penetration of a victim who is prevented from resisting by intoxication, anesthesia, or a controlled substance ( 289, subd. (e)). The court stated that it found four factors in aggravation and one in mitigation, and that the aggravators clearly outweighed that mitigator, leading to an upper term sentence. The court next imposed one-third the midterm sentence on counts 11 and 12, both for oral copulation by means of anesthesia or controlled substance ( 288a, subd. (i)), and designated them to run consecutively pursuant to section 1170.1, subdivision (a). On each of the two counts of rape by drugs ( 261, subd. (a)(3)), the trial court sentenced Diaz to the upper term of eight years and concluded that it was required by section 667.6, subdivision (d) to order that the sentences be served consecutively because the crimes were committed on separate occasions. The trial court stated that in the event that its determination that section 667.6, subdivision (d) mandated consecutive sentences on counts 13 and 14 was incorrect, the court would nonetheless have elected to impose consecutive sentences on those counts under section 667.6, subdivision (c)[3]because the factors in aggravation outweighed the factors in mitigation.

While this case was pending on appeal, the United States Supreme Court issued its opinion in Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham). We requested that the parties submit letter briefs on the impact of Cunningham on this case. Diaz contends that the three upper term sentences are improper under Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), Blakely, supra, 542 U.S. 296, and Cunningham, and that the imposition of consecutive sentences on counts 13 and 14 is unconstitutional. The Attorney General argues that any Apprendi/Blakely/Cunningham objections have been waived and that the sentence is constitutionally valid.

A. Waiver/Forfeiture

The Attorney General contends Diaz waived or forfeited any Apprendi/Blakely/Cunningham error when he did not object on Apprendior Blakely grounds in the trial court, even though his sentencing hearing occurred over a year after the Blakely opinion had been issued by the U.S. Supreme Court. We reject this contention. Even if the forfeiture doctrine may reasonably be applied in this constitutional context (see People v. Vera (1997) 15 Cal.4th 269, 276-277 [claims of deprivation of certain fundamental constitutional rights are not forfeited by the failure to object in the trial court]), there is a general exception to the forfeiture rule for instances when an objection would have been futile. (People v. Boyette (2002) 29 Cal.4th 381, 432; People v. Abbaszadeh (2003) 106 Cal.App.4th 642, 648.) At the time of the sentencing hearing in this case, August 31, 2005, the California Supreme Court had already decided People v. Black (2005) 35 Cal.4th 1238 (Black). In light of Black, it would have been futile for Diaz to object on the grounds that the jury rather than the trial court must find aggravating facts and that those facts must be found beyond a reasonable doubt. ( 1170, subd. (b); Cal. Rules of Court, rules 4.409 & 4.420-4.421.) Diaz has neither waived nor forfeited his claim that the procedure by which he was sentenced violates the Sixth Amendment.

B. Upper Terms

1. Sixth Amendment Violation

The fundamental principle at issue here was announced in Apprendi, supra,530 U.S. at page 490: 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. The Supreme Court clarified the meaning of the term statutory maximum in Blakely, supra, 542 U.S. at pages 303 and 304, as the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant . . .  In other words, the relevant statutory maximum is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. When a judge inflicts punishment that the jurys verdict alone does not allow, the jury has not found all the facts which the law makes essential to the punishment, [citation], and the judge exceeds his proper authority.

In California, pursuant to the Determinate Sentencing Law, most crimes, including those in counts 10, 13, and 14, have a statutory upper term, a middle term, and a low term sentence from which the judge selects. Penal Code  1170(b) . . . controls the trial judges choice [among the three sentences]; it provides that the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime. [C]ircumstances in aggravation or mitigation are to be determined by the court after consideration of several items: the trial record; the probation officers report; statements in aggravation or mitigation submitted by the parties, the victim, or the victims family; and any further evidence introduced at the sentencing hearing. (Cunningham, supra, 127 S.Ct. 856, 861-862.)

The United States Supreme Court has found Californias determinate sentencing scheme constitutionally defective in two respects: first, in finding circumstances in aggravation, judgesnot juriesmake factual findings that have the effect of increasing the statutory maximum sentence for the crime by allowing the court to impose the upper term sentence; and second, these aggravating factors are found by a preponderance of the evidence and not by proof beyond a reasonable doubt.[4] (Cunningham, supra, 127 S.Ct. at p. 868.) The Supreme Court explained that under Californias Determinate Sentencing Law, an upper term sentence may be imposed only when the trial judge finds an aggravating circumstance. [Citation.] An element of the charged offense, essential to a jurys determination of guilt, or admitted in a defendants guilty plea, does not qualify as such a circumstance. [Citation.] Instead, aggravating circumstances depend on facts found discretely and solely by the judge. In accord with Blakely, therefore, the middle term prescribed in Californias statutes, not the upper term, is the relevant statutory maximum. [Citation.] Because 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 [Determinate Sentencing Law] 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.] (Ibid.)

In light of the Supreme Courts ruling in Cunningham, supra, 127 S.Ct. 856, we conclude that in the absence of jury findings on the aggravating factors made beyond a reasonable doubt, the imposition of high term sentences on counts 10, 13, and 14 violated the Sixth Amendment. In selecting the high term, the trial court stated that it found four factors in aggravation and one in mitigation, and that the aggravators clearly outweighed that mitigator. The court described its analysis as follows:

The court is going to find the following factors in aggravation: One, the crime involved great violence, great bodily harm, threat of great bodily harm, high degree of cruelty, viciousness, and callousness. Specifically Im finding it involved a high degree of cruelty, viciousness and callousness. As I said, she was treated in a manner which completely denied her humanity, and any act, I believe, of rape involves a great violence. [] Second, the victim was particularly vulnerable. Third, the manner in which the crime was carried out indicates planning and sophistication. Theres a camera by the bed that was used. Last, the defendant engaged in violent conduct which indicates a serious danger to society. Having sex against someones will, whether its used [sic] by violence or restraint or through the use of an intoxicant so the person is unconscious or not conscious, what occurs is what I consider to be violent conduct which indicates a serious danger to society. [] As a factor in mitigation, I find the defendant has either no prior record or insignificant record of criminal conduct considering the recency [sic] and frequency of prior crimes.[5] The court refused to consider Diazs intoxication as a mitigating factor, and stated, I have taken into consideration some of the other factors [defense counsel] mentioned, indicating that otherwise hes led a law-abiding life and that otherwise, outside of this event, he could be a good person. But I dont find that to be enough mitigation to outweigh the aggravation. I clearly find the aggravation outweighs the mitigation. [] On count 10, because the factors in aggravation outweigh the factors in mitigation, Im sentencing him to [the] high term of eight years. The court imposed the upper term on counts 13 and 14 without any further comments to explain its selection of the upper term on those counts.

Story Continue as Part II

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* Pursuant to California Rules of Court, rules 8.1100 and 8.1110, this opinion is certified for publication with the exception of parts I through V.

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

[2] Although Diazs counsel devotes several pages of her briefing to descriptions of decisions in which a court has concluded that a witnesss testimony was so inherently improbable, unbelievable, or impossible that it could not stand as the basis for a conviction, the evidence here is not incredible, contradicted by other conduct of the victim, or otherwise undermined in any way.

[3] At sentencing, the court misspoke and repeated section 667.6, subdivision (d) as its alternate authority, but it is clear from the context that the court meant to refer to section 667.6, subdivision (c).

[4] The California Supreme Court had concluded otherwise in Black, supra, 35 Cal.4th 1238. The United States Supreme Court disapproved Black in Cunningham and later vacated the judgment and remanded the matter to the California Supreme Court, where it is now pending. (Black, supra, 35 Cal.4th 1238, cert. granted, judg. vacated and cause remanded for further consideration in light of Cunningham, supra, 127 S.Ct. 856 sub nom. Black v. California (Feb. 20, 2007) 549 U.S. ___ [127 S.Ct. 1210].)

[5] According to the probation report, Diaz has no prior criminal convictions or juvenile adjudications.