P. v. Siqueiros

Filed 7/6/07 P. v. Siqueiros CA6

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

Statement of the Case

A jury convicted defendant Cleto Siqueiros of two counts of lewd conduct with a child, one count of aggravated sexual assault of a child (rape), and two counts of forcible lewd acts upon a child. (Pen. Code, 288, subds. (a) & (b)(1), 261, subd. (a)(2), 269, subd. (a)(1).)[1] The court imposed a total sentence of 29 years to life. It consisted of an indeterminate 15-years-to-life term for aggravated sexual assault and a consecutive determinate term of 14 years, comprising a six-year principal term for one count of lewd conduct; a subordinate consecutive, full mid-term of six years for a second count of lewd conduct; and a consecutive one-third the mid-term of two years for the third count of lewd conduct.

On appeal from the judgment, defendant contended that the court erred in giving CALJIC No. 10.64, the standard instruction on Child Sexual Abuse Accommodation Syndrome (CSAAS). He argued that it created an unconstitutional presumption, which in turn lowered the prosecutions burden of proof. He claimed his sentence violated the constitutional proscriptions against cruel and unusual punishment. And he claimed the imposition of full and/or consecutive terms for two counts of lewd conduct violated his constitutional right to a jury trial.

On June 26, 2006, this court filed an opinion affirming the judgment. (People v. Siqueiros (June 26, 2006, H028970) [nonpub opn.]. Among other things, we rejected defendants challenge to his consecutive terms based on the binding authority of People v. Black (2005) 35 Cal.4th 1238 (Black), in which the court rejected an identical claim concerning the imposition of consecutive sentences. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455-456.) We noted, however, that the validity of Black was in question before the United States Supreme Court in People v. Cunningham (Apr. 18, 2005, A103501) 2005 WL880983 [nonpub. opn.], cert. granted, sub nom. Cunningham v. California (Feb. 21, 2006, No. 05-6551) ___ U.S. ___ [126 S.Ct. 1329].)

The United States Supreme Court has since filed Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham), in which it disagreed with Black and vacated that decision. Thereafter, the United States Supreme Court granted defendants petition for writ of certiorari. It vacated our original decision and remanded the case to us for further consideration in light of Cunningham.

Having reconsidered defendants claim in light of Cunningham, we again affirm the judgment.

Facts

The victim Y. was born in January of 1991. When she was nine-months old, her mother became romantically involved with defendant, and he moved in. Thereafter, he and Y.s mother had three children.

Y. testified about several incidents in which defendant sexually abused her. The first incident occurred when she was in kindergarten. When she was in the bathroom, defendant came in, fondled himself, and forced her hand onto his penis.

When Y. was in the third grade, defendant touched her three times. One time, he was driving her home from school. He stopped the car, grabbed her thighs, and told her that if she did not kiss him, he would not celebrate her birthday. She refused, and defendant angrily drove home.

When Y. was 10, she woke up one night, and defendant was on top of her. Her sweatpants and underwear had been pulled down. Defendant was holding her shoulders and pushing his penis into her vagina. It hurt, and she was shocked and scared. When defendant left, she went to the bathroom and wiped blood and semen from herself. Three years later, a medical examination revealed vaginal narrowing that was consistent with a penetrating injury, which could have been caused by a penis, finger, or other object.

In another incident around the same time, defendant came into Y.s bedroom. She was watching cartoons on TV. He grabbed her thighs with both hands, rubbed between her legs, and then grabbed and rubbed her breasts. Defendant seriously warned her not to tell anyone. Sometime after the incident, the family moved to Reno. There, defendant came into her room one day and touched her legs and thighs.

Later, the family moved back to San Jose, where again, defendant came into her room one night and rubbed her thighs. When she was in the sixth grade, defendant offered to give her money if she allowed him to touch her. He told her if she told anyone, no one would believe her.

When Y. was in middle school, she started to argue and get into trouble with her parents for various reasons. Among other things, they were concerned about drugs and her friends. One day, Y.s mother found methamphetamine in her backpack. Y. claimed that another girl put the drugs there.[2] Ys mother and defendant took her to a medical clinic to be tested for drugs and sexual activity. Y. was very upset that her parents did not believe her. Doctor Antonia Zuzueta insisted that she and Y. be alone during the examination. Defendant reluctantly agreed. Y.s drug test came back negative. However, Y. told Doctor Zuzueta that three years before, she had had sex with defendant. Doctor Zuzueta reported the allegation to Child Protective Services, and later defendant was arrested.

Detective Juan Serrano of the San Jose Police Department interviewed defendant. Initially he denied any improper conduct. Later, however, he admitted that once he accidentally entered the bathroom when Y. was there. Ultimately, he admitted touching her, masturbating while he did so, and then smearing his semen on her. He said that his finger may have digitally penetrated her. However, he explained that Y. initiated the encounter because she wanted to see how it felt. She told him it felt good although a little painful. He said that when they finished, she demanded money.

Expert CSAAS Testimony

Carl Lewis, a criminal investigator for the district attorney, testified as an expert on CSAAS. He testified that CSAAS is not a scientific or diagnostic instrument used to establish that abuse has taken place. Rather, is descriptive tool that offers an explanation for certain behaviors exhibited by children who have been sexually abused that might appear to be inconsistent with common notions about how a child victim would act. Among those behaviors are secrecy about the abuse; helplessness to do anything about it; entrapment by and accommodation of the abuser; delayed conflicted, and unconvincing disclosure of abuse; and retraction of previous accusations. He testified that accommodation behavior can account for a child victim acting as if nothing is wrong, engaging in compensatory behavior like rebelliousness, and performing poorly in school. CSAAS can explain delays in disclosing abuse and the sort of things that might trigger later disclosure, such as being disciplined. CSAAS can also explain why victims may later try to retract accusations under pressure from family members or concern about the consequences.

The Defense

Defendant testified that he touched Y. inappropriately on only one occasion, when she was 10 years old. He said that Y. had seen couples touching on TV and told him she wanted to know what it felt like. She pulled her pants down and asked him to touch her over her underpants. He touched her stomach, and she then moved his hand to her vagina. He masturbated while touching her until he ejaculated. After the incident, Y. asked him for money. He said he refused, saying it would be wrong. He denied penetrating her vagina with either his finger or penis.

Defendant testified that Y. falsely accused him because she was angry that he had disciplined her and restricted her activities. He testified that when he and Y.s mother took her to be examined, Y. was angry and rude, and he hit her.

Caljic No. 10.64

Defendant contends that the court erred in giving the standard instruction on CSAASCALJIC No. 10.64because the instruction is constitutionally flawed.

The Attorney General claims that defendant waived his claim by failing to object. However, a defendant does not waive instructional error that affects his or her substantial rights. ( 1259.) In People v. Andersen (1994) 26 Cal.App.4th 1241, 1249, the court observed that [a]scertaining whether claimed instructional error affected the substantial rights of the defendant necessarily requires an examination of the merits of the claimat least to the extent of ascertaining whether the asserted error would result in prejudice if error it was. Under the circumstances, we shall consider defendants claim. (See People v. Prieto (2003) 30 Cal.4th 226, 247.)

The trial court instructed the jury as follows. Evidence has been presented to you concerning Child Sexual Abuse Accommodation Syndrome. This evidence is not received and must not be considered by you as proof that the alleged victims molestation claims are true. Child Sexual Abuse Accommodation Syndrome research is based upon an approach that is completely different from that which you must take to this case. [] The syndrome research begins with the assumption that a molestation has occurred, and seeks to describe and explain common reactions of children to that experience. As distinguished from that research approach, you are to presume the defendant is innocent. The People have the burden of proving guilt beyond a reasonable doubt. You should consider the evidence concerning the syndrome and its effect only for the limited purpose of showing, if it does, that the alleged victims reactions, as demonstrated by the evidence, are not inconsistent with her having been molested. (Italics added; see CALJIC No. 10.64.)

Defendant argues that the italicized language created a mandatory presumption that an alleged victims accusations are true if her behavior matches the CSAAS profile, and that presumption violated his constitutional right to due process and a fair trial. Defendant argues that the mandatory presumption arises by implication. However, the question before us is whether there is a reasonable likelihood that the jury interpreted the instruction to create such a presumption. (See Estelle v. McGuire (1991) 502 U.S. 62, 72; People v. Reliford (2003) 29 Cal.4th 1007, 1013.) In making that determination, we do not consider isolated sections of CALJIC No. 10.64, as defendant does; rather we consider the entire charge to the jury. (People v. Frye (1998) 18 Cal.4th 894, 957; People v. Holt (1997) 15 Cal.4th 619, 677.) We must also consider the arguments of counsel. (People v. Young (2005) 34 Cal.4th 1149, 1202.)

As noted, the instruction explicitly told the jury that the CSAAS evidence must not be considered by you as proof that the alleged victims claim is true and reiterated that you are to presume the defendant innocent and [t]he People have the burden of proving guilt beyond a reasonable doubt. Those admonitions prohibited the jury from presuming anything based on Y.s behavior and the experts testimony. The last sentence of CALJIC No. 10.64 is fully consistent with those admonitions. It told jurors that CSAAS evidence may be considered only for the limited purpose of showing, if it does, that the alleged victims reactions, as demonstrated by the evidence, are not inconsistent with her having been molested. Moreover, the qualifying phrase if it does, makes it clear that the jury was not required to rely on the CSAAS testimony or find that the victims reactions fit a profile or were consistent with having been molested.

Viewed as a whole, the courts instruction permitted the jury to infer that certain reactions by a child victim of sexual abuse may not be inconsistent with having been molested. The instruction did not implicitly or explicitly assist the jury in determining whether the allegations of molestation are true in the first instance. (See People v. Patino (1994) 26 Cal.App.4th 1737, 1747 [similar instruction beneficial to and protective of defendants rights].)

We further note that the court instructed the jury not [to] single out any particular sentence or individual point or instruction and ignore the others but to [c]onsider the instructions as a whole, and each in light of the others. (See CALJIC No. 1.01.) The court instructed the jury that to convict defendant of any of the charges, it had to find a union or joint operation of act or conduct and intent. (See CALJIC Nos. 3.30 & 3.31.) The court also instructed the jury on the specific elements of each offense and said that to convict the defendant each element had to be proved. (See CALJIC Nos. 10 .41, 10.55, 10.00 & 10.42.)

Last, we note that during his opening argument, the prosecutor did not suggest that there is a presumption of molestation when a victims conduct fits the CSAAS profile. Nor did he suggest that her reactions proved that the molestation occurred.

Under the circumstances, we do not find a reasonable likelihood that the jury misinterpreted the courts instruction to create a presumption that the molestations occurred or that the jury misapplied it in that way. Accordingly, we find no instructional error.

Defendants reliance on People v. Godinez (1992) 2 Cal.App.4th 492 (Godinez) and People v. Higareda (1994) 24 Cal.App.4th 1399 (Higareda) is misplaced. In Godinez the court condemned an instruction that told the jury that  [h]omicide is a reasonable and natural consequence to be expected in a gang attack . . . .  (Godinez, supra, 2 Cal.App.4th at pp. 501-502, italics in original.) The court explained that the instruction usurped the jurys role in determining whether in that case homicide was a reasonable and natural consequences of the gang attack that the defendant aided and abetted. (Ibid.) In Higareda, the court condemned an instruction that told the jury that the  aiming of a handgun or shotgun at a victim accompanied by a demand and receipt of money or personal property amounts to force and inferably fear, within the meaning of [the robbery statute] . . . .  (Higareda, supra, 24 Cal.App.4th at p. 1406.) The court explained that the instruction usurped the jurys role in determining the factual element of the crime. (Ibid.)

Godinez and Higareda are distinguishable. As discussed, CALJIC No. 10.64 does not suggest that evidence of certain CSAAS reactions prove any element of the charged offenses. Rather, the instruction informed the jury that such evidence does not prove that molestation occurred, and the prosecutor has the burden to prove it.

Cruel and Unusual Punishment

Defendant contends that his life sentence is unconstitutional cruel and unusual punishment. (See U.S. Const., 8th Amend.; Cal. Const., art. I, 17.)

A punishment is excessive under the Eighth Amendment if it involves the unnecessary and wanton infliction of pain or if it is grossly out of proportion to the severity of the crime. (Gregg v. Georgia (1976) 428 U.S. 153, 173.) A punishment may violate article I, section 17 of the California Constitution if it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity. (In re Lynch (1972) 8 Cal.3d 410, 424, fn. omitted.)

Defendant initially claims that the major component of his sentencethe 15-years-to-life term for aggravated sexual assault mandated by section 269is invalid because section 269 is itself facially unconstitutional.

Section 269 mandates a 15-years-to-life sentence for any defendant who (1) commits a specified forcible sexual offense against a victim under the age of 14 and (2) is more than 10 years older than the victim.[3] As defendant correctly notes, the legislative purpose of section 269 is to increase punishment because the substantial age disparity between perpetrator and victim increases the perpetrators culpability. (See People v. Jimenez (2000) 80 Cal.App.4th 286, 291.)

Defendant claims that the statute is unconstitutional because it mandates a life sentence in every case and therefore does not recognize significant gradations of culpability depending on the severity of a particular offense or permit the consideration of mitigating circumstances.

The duties of defining crimes and prescribing punishments for such crimes fall primarily upon the states legislature. (Harmelin v. Michigan (1991) 501 U.S. 957, 998-999; In re Lynch, supra, 8 Cal.3d at pp. 414.) Moreover, fitting a penalty to a crime is not an exact science; it involves appraising the evil to be corrected, weighing alternatives, considering policy, and responding to the public will. (See In re Lynch, supra, 8 Cal.3d at p. 423.) Generally courts defer to such legislative determinations. (See Ewing v. California (2003) 538 U.S. 11, 25, 28; In re Lynch, supra, 8 Cal.3d at p. 414.)

Both the United States Supreme Court and California Supreme Court have upheld our state Three Strikes law, rejecting arguments that its mandatory terms constitute cruel and unusual punishment. (See Ewing v. California, supra, 538 U.S. 11; People v. Dotson (1997) 16 Cal.4th 547.) Similarly, courts have uniformly concluded that the imposition of a mandatory firearm enhancement under section 12022.53 does not constitute cruel or unusual punishment. (See People v. Felix (2003) 108 Cal.App.4th 994, 999-1002; People v. Taylor (2001) 93 Cal.App.4th 318, 323-324; People v. Villegas (2001) 92 Cal.App.4th 1217, 1230-1231; People v. Zepeda (2001) 87 Cal.App.4th 1183, 1212-1213; People v. Gonzales (2001) 87 Cal.App.4th 1, 16-19; People v. Martinez (1999) 76 Cal.App.4th 489, 493-498.)

In People v. Alvarado (2001) 87 Cal.App.4th 178 (Alvarado), this court rejected a similar claim concerning the imposition of a mandatory life term under the One Strike law ( 667.61) on those who commit certain forcible sexual offenses under specified aggravating circumstances, including during the commission of a burglary. We explained, Clearly, California has taken the most aggressive approach toward punishing and deterring rape during the commission of a burglary. As defendant asserts, it imposes the longest terms with the least amount of judicial discretion. However, the fact, acknowledged by defendant, that some other jurisdictions allow for the same or even harsher punishment (Louisiana and Washington) indicates that in the abstract, the One Strike term imposed here is not irrational or obviously excessive punishment for rape during a burglary. The fact that the sentence is mandatory merely reflects the Legislatures zero tolerance toward the commission of sexual offenses against particularly vulnerable victims. (Alvarado, supra, 87 Cal.App.4th at pp. 200-201; see People v. Estrada (1997) 57 Cal.App.4th 1270, 1277-1282 [also rejecting constitutional challenge mandatory life-term under the One Strike law]; People v. Crooks (1997) 55 Cal.App.4th 797, 803-809 [same].)[4]

The One Strike and Three Strikes laws and the gun enhancement statute reflect important policy determinations concerning how to deal with public safety concerns about recidivism, the commission of forcible sexual offenses under aggravating circumstances, and the use of firearms during the commission of felony offenses. So too section 269 reflects a policy determination that those who commit forcible sexual offenses against much younger children pose a special danger, and, therefore, deterring them and protecting young children from them requires increased mandatory punishment. We find no basis to distinguish this latter determination from the former ones noted above.

Moreover, defendant cites no authority for the proposition that in general it is unconstitutional to mandate a particular sentence and not provide a range of penalties and give the sentencing court discretion to impose a term within that range. This is understandable because the United States Supreme Court in Harmelin v. Michigan, supra, 501 U.S. at page 995, stated, There can be no serious contention . . . that a sentence which is not otherwise cruel and unusual becomes so simply because it is mandatory.  (See People v. Taylor, supra, 93 Cal.App.4th at p. 324; People v. Zepeda, supra, 87 Cal.App.4th at p. 1214; e.g., Harmelin v. Michigan, supra, 501 U.S. 957 [mandatory sentence of life without possibility of parole for possession of substantial amounts of drugs])

In short, therefore, we reject defendants claim that section 269 is facially unconstitutional.

Nevertheless, a mandatory punishment may contravene constitutional principles, and a court has the authority to intervene under such circumstances to prevent an unconstitutional punishment from being imposed. (People v. Dillon (1983) 34 Cal.3d 441, 478.) Therefore, we focus on whether defendants sentence as whole is grossly out of proportion to the severity of the crime (Gregg v. Georgia, supra, 428 U.S. at p. 173) or so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity. (In re Lynch, supra, 8 Cal.3d at p. 424.)

Generally, in determining whether a particular punishment is cruel or unusual, we examine the nature of the particular offense and offender, the penalty imposed in the same jurisdiction for other offenses, and the punishment imposed in other jurisdictions for the same offense. (Solem v. Helm (1983) 463 U.S. 277, 290-291; In re Lynch, supra, 8 Cal.3d at pp. 425-427; People v. Martinez (1999) 71 Cal.App.4th 1502, 1509-1510.)

In support of his claim, defendant notes that he was 35-years old when arrested. He has been legally and gainfully employed, and he has financially supported his wife and their five children. He notes that he has no prior criminal record. He opines that although his crimes are serious and reprehensible, his sentence is nevertheless draconian because he did not brutalize Y. or inflict any physical injury other than those inherent in the sexual acts themselves. Defendant further asserts his sentence exceeds that imposed for the crimes of murder ( 190) or continuous sexual abuse ( 288.5).

Defendants age, employment history, and lack of a criminal record do not necessarily militate in his favor. (Cf. People v. Alvarado, supra, 87 Cal.App.4th at p. 200 [life term constitutional despite defendants age, lack of record, remorse]; People v. Bestelmeyer (1985) 166 Cal.App.3d 520 [129-year term for multiple sexual offenses constitutional despite lack of prior record and mental impairment].) Defendant was not a troubled teenager when he committed his crimes. Indeed, he was over 30 years old when he raped Y. Moreover, his crimes span a lengthy period, beginning when Y. was in kindergarten and continuing to when she was in the sixth grade. Thus, although defendant was working and supporting his family during that period, he was also molesting Y. He was able to keep his opportunistic conduct a secret by exploiting his status and position of authority as Y.s parent and by threatening her. Finally, we note that defendant acknowledged only one improper act. He never acknowledged the rape, and, far from showing remorse, he essentially blamed Y. for his conduct.

Similarly, the fact that defendant did not brutalize or inflict physical injuries on Y. does not suggest that his sentence is shockingly disproportionate. Again, he committed numerous offenses over a long period of time, culminating in a forcible rape. Moreover, he overlooks the potentially long-term emotional and psychological scars that can result from sexual offenses committed against young children by trusted adult members of their own family.

Given the nature of the offenses and offender, we do not find that defendants sentence is grossly disproportionate to his individual culpability or so disproportionate as to shock the conscience and offend basic notions of human dignity.

Last, defendants claim that his sentence is disproportionate to that imposed for murder or continuous sexual abuse fails because defendants sentence is not based on a single conviction for one of those offenses. It is based on five convictions for separate acts committed on separate occasions. Convictions for multiple sexual offenses can result in sentences that could not possibly be served in a human lifetime. Yet such sentences are routinely upheld when challenged as unconstitutionally disproportionate. (See, e.g., People v. Wallace (1993) 14 Cal.App.4th 651, 666 [283-year sentence for 46 sex crimes against seven victims]; People v. Bestelmeyer, supra, 166 Cal.App.3d 520, 532 [129 years for 25 sex crimes against one victim); People v. Byrd (2001) 89 Cal.App.4th 1373, 1382 [115 years plus 444 years to life]; People v. Cartwright (1995) 39 Cal.App.4th 1123, 1134-1137 [375 years to life plus 53 years].)

In sum, defendant fails to convince us that his sentence violates the state and federal proscriptions against cruel and unusual punishment.

Consecutive Terms

Citing Blakely v. Washington (2004) 542 U.S. 296 (Blakely), defendant contends that the imposition of consecutive terms based on facts found by the trial court violated his constitutional rights to a due process and a jury trial.

In Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), the United States Supreme Court held that, except for prior convictions, a defendant has a right to a jury trial on any fact that increases the punishment for an offense beyond the statutory maximum that could be imposed for that offense based on the facts reflected in the jurys verdict alone. (Id. at p. 490.)

In Blakely supra, 542 U.S. 296, the court held that the prescribed  statutory maximum  for purposes of the right to a jury trial is not necessarily the maximum penalty stated in the statute for the particular offense; rather, it is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. (Blakely, supra, 542 U.S. at p. 303, italics in Blakely.)

In Black, supra, 35 Cal.4th 1238, the defendant claimed that the imposition of an upper term and consecutive sentences under Californias Determinate Sentencing Law violated the defendants right to a jury trial, as outlined in Apprendi and Blakely because it permitted the court to impose those sentences based on facts found by the court at sentencing. However, the Supreme Court disagreed, holding that the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence or consecutive terms under California law does not implicate a defendants Sixth Amendment right to a jury trial. (Id. at p. 1244.)

In Cunningham, supra, 549 U.S. ___ [127 S.Ct. 856], the United States Supreme Court disagreed with Black and held that Californias Determinate Sentencing Law violates a defendants Sixth and Fourteenth Amendment right to a jury trial to the extent it permits a trial court to impose an upper term for a particular offense based on facts found by the court by a preponderance of the evidence rather than by a jury beyond a reasonable doubt. (Cunningham, supra, 549 U.S. at p. ___ [127 S.Ct. at pp. 868-871].) The Cunningham court did not, however, address whether the imposition of consecutive terms implicated a defendants right to a jury trial.

Initially, we note that the United States Supreme Court vacated Black in its entirety and remanded it for reconsideration in light of Cunningham. (Black v. California (Feb. 20, 2007, No. 05-6793) ___ U.S. ___ [167 L.Ed.2d 36].) Generally, a decision is rendered null and void when it is reversed or vacated. (See 9 Witkin Cal. Procedure (4th ed. 1997) Appeal, 758, p. 783, second italics added [The effect of an unqualified reversal . . . is to vacate the judgment, and to leave the case at large for further proceedings as if it had never been tried, and as if no judgment had ever been rendered].) Having been completely vacated, Black no longer represents binding authority concerning the imposition of consecutive terms. (See Auto Equity Sales, Inc. v.Superior Court, supra, 57 Cal.2d 450, 455.)

Nevertheless, we independently reach the same conclusion that the California Supreme Court reached in Black on that issue. There, the court reasoned that Blakelys underlying rationale, which formed the basis for Cunningham, is inapplicable to a trial courts decision whether to require that sentences on two or more offenses be served consecutively or concurrently. (Black, supra, 35 Cal.4th at p. 1262.) The jurys verdict finding the defendant guilty of two or more crimes authorizes the statutory maximum sentence for each offense. When a judge considers the circumstances of each offense and the defendants criminal history in determining whether the sentences are to be served concurrently or consecutively, he or she cannot be said to have usurped the jurys historical role. Permitting a judge to make any factual findings related to the choice between concurrent or consecutive sentences does not create an opportunity for legislatures to eliminate the right to a jury trial on elements of the offenses. (Id. at p. 1263.)

We agree with Blacks rationale and believe that the court is likely to reaffirm it and again hold that the concerns underlying Apprendi, Blakely, and Cunningham are not implicated by the imposition of consecutive sentences.

Although Blakely did not involve the imposition of consecutive sentences, defendant claims that the Blakely rule must be applied because concurrent terms are the statutory norm, and therefore, any fact used to impose a consecutive term must be submitted to the jury.

Defendants claim fails because concurrent sentences imposed under sections 669 and section 667.6, subdivision (c) are not the statutory norm, and therefore the imposition of consecutive sentences is not equivalent to the imposition of an upper term based on facts found by the court instead of the jury.

Section 669 imposes an affirmative duty on a sentencing court to determine whether the terms of imprisonment for multiple offenses are to be served concurrently or consecutively. (In re Calhoun (1976) 17 Cal.3d 75, 80-81.) That section leaves the decision to the courts discretion. (People v. Jenkins (1995) 10 Cal.4th 234, 255-256.) While there is a statutory presumption in favor of the middle term as the sentence for an offense [citation], there is no comparable statutory presumption in favor of concurrent rather than consecutive sentences for multiple offenses except where consecutive sentencing is statutorily required. The trial court is required to determine whether a sentence shall be consecutive or concurrent but is not required to presume in favor of concurrent sentencing. (People v. Reeder (1984) 152 Cal.App.3d 900, 923.) Moreover, although a court must state reasons for imposing consecutive sentences (see Cal. Rules of Court, rule 4.406(b)(5); People v. Walker (1978) 83 Cal.App.3d 619, 622), that requirement does not create a presumption or entitlement to concurrent terms. (See In re Podesto (1976) 15 Cal.3d 921, 937.) Rather requiring a statement of reasons is intended to ensure careful sentencing, meaningful appellate review, and public confidence in sentencing procedures. (People v. Martin (1986) 42 Cal.3d 437, 449-450.)

In short, defendant had the right at sentencing to have the court exercise its discretion concerning whether to impose concurrent or consecutive terms. However, he did not have a statutory right to a concurrent term as the statutory norm in multiple conviction cases; and, as the Supreme Court said in Blakely, that makes all the difference insofar as judicial impingement upon the traditional role of the jury is concerned. (Blakely, supra, 542 U.S. at p. 309.)

Disposition

The judgment is affirmed.

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RUSHING, P.J.

WE CONCUR:

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PREMO, J.

____________________________________

ELIA, J.

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Analysis and review provided by Vista Property line attorney.

[1] All further statutory references are to the Penal Code unless otherwise specified.

[2] Defendants 15-year old niece Betty testified that in November 2004, Y. called and asked if she knew anyone who could sell her $30 to $40 worth of methamphetamine. Betty further testified that she had seen Y. smoke methamphetamine on prior occasions.

[3]Section 269 provides, (a) Any person who commits any of the following acts upon a child who is under 14 years of age and 10 or more years younger than the person is guilty of aggravated sexual assault of a child: [] (1) A violation of paragraph (2) of subdivision (a) of Section 261. [] (2) A violation of Section 264.1 [forcible sexual offenses in concert]. [] (3) Sodomy, in violation of Section 286 [sodomy], when committed by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person. [] (4) Oral copulation, in violation of Section 288a [oral copulation], when committed by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person. [] (5) A violation of subdivision (a) of Section 289 [penetration with foreign object]. [] (b) Any person who violates this section is guilty of a felony and shall be punished by imprisonment in the state prison for 15 years to life.

Forcible rape is a specified offense. ( 269, subd. (a)(1).)

[4] Defendant acknowledges that his claim is similar to those rejected in Alvarado, Estrada, and Crooks. However, he respectfully asserts that those cases were incorrectly decided for the reasons set forth herein.