P. v. Czub

Filed 8/22/07 P. v. Czub CA3

Opinion following remand by U.S. Supreme Court

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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On February 20, 2007, the United States Supreme Court granted a petition for writ of certiorari in this case, vacated the judgment of this court and remanded the case to us for further consideration in light of Cunningham v. California (2007) 549 U.S. __ [166 L.Ed.2d 856] (Cunningham). We directed the parties to submit supplemental briefs addressing the Cunningham issues. Since that time, the California Supreme Court has issued its decisions in People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval). Upon further consideration, we shall remand for resentencing pursuant to Cunningham, but otherwise affirm the judgment as before. We reissue our previous opinion with a revised section addressing the Cunningham issues.

Defendant was convicted by a jury of two counts of lewd and lascivious conduct with a child under the age of 14 years (Pen. Code,  288, subd. (a)), eight counts of lewd and lascivious conduct with a child 14 or 15 years old by a person at least 10 years older (Pen. Code,  288, subd. (c)(1)), five counts of unlawful sexual intercourse by a person at least 21 years old with a minor under 16 years old (Pen. Code,  261.5, subd. (d)), one count of unlawful sexual intercourse with a minor more than three years younger than the perpetrator (Pen. Code,  261.5, subd. (c)), one count of rape (Pen. Code,  261, subd. (a)(2)), and one count of aggravated sexual assault of a child under 14 years old by a person 10 or more years older (Pen. Code,  269, subd. (a)(5)). He was sentenced to state prison for an aggregate, unstayed, determinate term of 22 years plus an indeterminate term of 15 years-to-life.

Defendant appeals challenging the constitutionality of Evidence Code section 1108 (further undesignated section references are to the Evidence Code) and its application in this matter. He also claims instructional and sentencing errors along with prosecutorial misconduct. We requested supplemental briefing on whether defendants rape conviction is supported by substantial evidence.

Facts and Proceedings

Prior to July 2000, defendant had separated from his wife and was living alone in a house a short distance from the home of his friend, William L., and Williams family, which included 6-year-old A. and 15-year-old K. Defendant was 32 years old at the time. K. began spending time at defendants house and talking with defendant. While at defendants home, K. could do whatever [she] wanted to do, including playing games on the computer. Sometimes she brought friends with her. Defendant provided K. and her friends with booze and weed.

On July 1, 2000, defendant and K. were alone at defendants home when she started complaining about a guy she liked who did not like her and about being ugly. Defendant told K. she had a lot going for her and had a beautiful Y. K. asked what this meant and he showed her by running his hands along her thighs up to where her legs meet. This same day, defendant digitally penetrated K.s vagina.

On July 14, defendant again digitally penetrated K. and also orally copulated her. On July 22, defendant and K. orally copulated each other and engaged in sexual intercourse. There were additional incidents of digital penetration and oral copulation between July 14 and August 6. Defendant and K. engaged in sexual intercourse on August 6, 8 and 20 and on many occasions thereafter. In all, they engaged in sexual intercourse 30 times, defendant orally copulated K. 18 to 20 times, and she orally copulated him at least 10 times. Most of this conduct occurred at defendants home. On one occasion, defendant engaged in sexual intercourse with K. in his van in front of her house. On January 1, 2001, defendant tied K. up and orally copulated her. They also engaged in sexual intercourse on this occasion.

On April 13, 2001, K. had her sixteenth birthday party at defendants home and began a relationship with a boy from school. K. thereafter tried to break off her sexual relationship with defendant. However, he always made her feel guilty and cried a lot. K. engaged in sexual conduct with defendant one or two more times after she began her relationship with the boy from school.

By August 2001, defendant had moved in with K.s family and was sleeping on a couch in the living room. On one occasion in August, K. was sleeping in her room when defendant entered. He was drunk and got in bed with her. He began touching K. and complaining about her cut[ting him] off. She told him to stop but he persisted and did what he wanted to do.

While defendant was living with K.s family, he molested K.s 6-year-old sister, A. One evening, while defendant and A. were watching television together, he put his hand under her clothes and touched the outside of her vagina. On another occasion, while A. was in defendants van with him, he reached over and touched her butt over her clothes. Defendant touched A. under her clothes many times, sometimes inside her vagina.

On September 7, 2001, A.s older sister, L., saw defendant kiss A. on the mouth and put his hand up A.s shirt. When L. reported this to her mother, her mother refused to believe it.

One week later, L. and her brother, B., were camping in the yard with some other children and came into the house to use the bathroom. They saw defendant lying on top of A. on the couch. A.s legs were spread around defendant and he was moving back and forth. At the time, A.s father, who was a heavy drinker, was passed out in his bedroom and A.s mother and K. were away from home.

The next morning, L. reported the incident to K. K. told defendant to leave the house, but he refused. K. then called some friends to help. Eventually, K. was able to contact her father at work. He came home and ordered defendant to leave. Defendant did so. A.s father called the police but, for whatever reason, defendant was not arrested until July 22, 2002.

Defendant was charged with 18 separate offenses, three involving A. and the rest involving K. At trial, evidence was presented regarding two prior incidents of molestation by defendant, one in 1987 and one in 1994. Defendant was convicted on all charges and sentenced as previously indicated.

Discussion

I

Section 1108

As shall be discussed in more detail later, evidence was presented regarding prior uncharged incidents of sexual misconduct by defendant. This evidence was admitted pursuant to section 1108, which is an exception to the general prohibition against evidence of a persons character or a trait of his or her character . . . when offered to prove his or her conduct on a specified occasion. ( 1101, subd. (a).) Section 1108, subdivision (a), reads: In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendants commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352.

Defendant challenges the constitutionality of section 1108. He argues the admission of evidence of prior crimes without a limiting instruction telling the jury that it may not use the evidence as evidence of guilt of the offenses charged in the case before it violates the Fifth and Fourteenth Amendment [g]uarantees of due process. Defendant acknowledges the constitutionality of section 1108 was decided by the state Supreme Court in People v. Falsetta (1999) 21 Cal.4th 903 (Falsetta). Nevertheless, he argues there are persuasive federal authorit[ies] to the contrary.

Defendant failed to raise this issue before the trial court. He argues the issue may be raised on appeal because it involves a pure question of constitutional law relating to the validity of a penal statute. Defendant is wrong. Even constitutional objections to the admission of evidence are forfeited by failing to raise them in the trial court. (People v. Williams (1997) 16 Cal.4th 153, 250.) No procedural principle is more familiar to this Court than that a constitutional right, or a right of any sort, may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it. [Citation.] (United States v. Olano (1993) [507 U.S. 725, 731 [113 S.Ct. 1770, 123 L.Ed.2d 508]].) (People v. Saunders (1993) 5 Cal.4th 580, 590.) The purpose of the waiver doctrine is to encourage a defendant to bring any errors to the trial courts attention so the court may correct or avoid the errors and provide the defendant with a fair trial. (People v. Marchand (2002) 98 Cal.App.4th 1056, 1060.)

Defendant argues an objection would have been futile in light of Falsetta. We agree. However, in order to preserve the issue for appeal, it should have been raised below. An objection at the trial court level might have prompted that court to exclude the evidence in order to avoid a potential reversal. At any rate, we are bound by Falsetta. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

II

Admission of Evidence Under Section 1108

Pursuant to section 1108, the prosecution presented evidence regarding two episodes of prior sexual misconduct by defendant. Defendant contends the court abused its discretion in admitting this evidence.

Samantha S. testified that in 1987, when she was 14 years old, she and two other girls, Toni D. and Maria A., went to defendants house to see defendants younger brother. Defendant was home alone at the time. He was 19 years old. After Toni and Maria left for the store, defendant came over to Samantha and started grabbing her. She told him to stop and pushed him away. Defendant took Samantha to a couch 10 feet away, where he lifted up her arms, shirt and bra and started kissing her chest. Defendant also rubbed his lower body against Samanthas. When Toni and Maria returned from the store and entered unannounced, defendant and Samantha jumped off the couch and straightened their clothes. This testimony was confirmed by Maria, who testified that when she and Toni came back from the store, defendant and Samantha jumped off the couch and Samantha looked upset. It was also confirmed by Toni.

The second episode of sexual misconduct occurred in 1994 and involved 6-year-old Katrina W., Katrinas 3-year-old sister, and defendants 5-year-old daughter. Katrina testified that, while defendants wife was babysitting her at defendants house, defendant sexually touched her five or six times. On one occasion, Katrina was sitting on defendants lap in the living room and he touched the inside of her vagina. This occurred more than once. Katrina eventually told her mother and the touching stopped. Katrina also testified she saw defendant put his hand under his daughters dress and underwear and saw defendant put his hand down Katrinas sisters pants. This occurred multiple times.

The authority to admit prior sexual offense evidence under section 1108 is expressly limited by section 352, which reads: The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. In Falsetta, the high court indicated section 352 provides a safeguard against the introduction of unduly prejudicial prior offense evidence that strongly supports the constitutionality of section 1108. (People v. Falsetta, supra, 21 Cal.4th at p. 916.)

The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. [A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendants case. The stronger the evidence, the more it is prejudicial. The prejudice referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against defendant as an individual and which has very little effect on the issues. (People v. Karis (1988) 46 Cal.3d 612, 638.) Section 352 is not designed to avoid the prejudice that naturally flows from relevant, highly probative evidence, but rather uses the word in its etymological sense of prejudging a person or cause on the basis of extraneous factors. (People v. Zapien (1993) 4 Cal.4th 929, 958.)

In People v. Harris (1998) 60 Cal.App.4th 727, this court identified the following factors relevant to the question whether prior sexual offense evidence should be excluded as unduly prejudicial: (1) The inflammatory nature of the evidence; (2) The probability of confusing the jury with the evidence; (3) The remoteness of the prior offenses; (4) Whether introduction of the evidence would involve an undue consumption of time; and (5) The probative value of the evidence. (Id. at pp. 737-741.)

Defendant contends these factors support exclusion of the evidence in this matter. In particular, defendant argues the prior offense evidence must be characterized as inflammatory. Defendant further argues there was a danger of confusing the issues, because the jury was not told if defendant was convicted of the prior misconduct and therefore was left to wonder if defendant escaped punishment. This in turn would introduce the possibility of the jury convicting defendant in this matter to punish him for the prior offenses. Defendant also argues the prior offenses were too remote, thereby creating problems with witnesses being able to remember details of the incidents. Finally, defendant argues the prior offense evidence consumed a significant portion of the trial and was not very probative, especially with respect to the incident involving Samantha S.

We do not share defendants view of the evidence. While it is true the prior offense evidence introduced here was inflammatory in that it involved incidents of child molestation, this evidence was no more inflammatory than that introduced on the charged offenses.

As noted above, defendant grounds his argument regarding potential confusion of the issues on the thought the jury may have been inclined to convict defendant in this matter because he may have escaped punishment on the earlier offenses. We think that possibility is remote. Though the jury was not told defendant had been punished for the earlier offenses, it also was not told that he had escaped punishment for the earlier offenses. The jury was instructed to determine the facts of the case from the evidence received at trial and not from any other source and also was instructed it could not consider or discuss facts as to which there was no evidence. Absent evidence to the contrary, we must assume the jury followed the judges instructions and did not speculate or otherwise consider or discuss whether defendant had been prosecuted or punished for the incidents allowed into evidence pursuant to section 1108.

As to remoteness, although the 1987 offense, standing alone, could be considered remote from the current offenses, the other prior offenses occurred in 1994, only six years before defendant began molesting K. And, despite the passage of time since the 1987 incident, the witnesses were generally consistent and detailed about what occurred.

Regarding consumption of time, there were four witnesses who testified about the 1987 incident, Samantha S., Marie A., Toni D., and defendant. This testimony covered only 75 of the nearly 1,000 pages of the reporters transcript. Although not an insignificant amount, this does not constitute an undue consumption of time.

Finally, as to probative value, defendant argues the evidence regarding the 1987 incident was not probative because that incident was totally dissimilar to the current allegations. We disagree. While defendant may have been much younger at the time, he was nevertheless an adult significantly older than the minor victim. Samantha S. was approximately the same age as K., one of the two victims of the current offenses. Furthermore, the probative value of the evidence comes from the fact that, in both the prior and current offenses, defendant took advantage of an opportunity to commit sexual offenses on a vulnerable victim. Defendant showed himself to be the type of individual willing to commit such an offense.

We review a trial court determination under section 352 for abuse of discretion. (People v. Williams, supra, 16 Cal.4th at p. 213.) A trial courts exercise of discretion will not be disturbed unless it appears that the resulting injury is sufficiently grave to manifest a miscarriage of justice. [Citation.] In other words, discretion is abused only if the court exceeds the bounds of reason, all of the circumstances being considered. (People v.Green (1995) 34 Cal.App.4th 165, 182-183.)

Under the circumstances presented here, we cannot say the trial court abused its discretion in admitting the prior offense evidence under section 1108. The offenses were of a similar nature to the charged offenses and were not more inflammatory. There was little danger that defendant was prejudiced, within the meaning of section 352, by introduction of this evidence.

III

CALJIC No. 2.50.01

The jury was instructed pursuant to CALJIC No. 2.50.01 as follows:

Evidence has been introduced for the purpose of showing that the defendant engaged in a sexual offense on one or more occasions other than that charged in the case. [] . . . []

If you find that the defendant committed a prior sexual offense, you may but are not required to infer that the defendant had the disposition to commit sexual offenses.

If you find that the defendant had this disposition, you may but are not required to infer that he was likely to commit and did commit the crime or crimes of which he is accused.

However, if you find by a preponderance of the evidence that the defendant committed prior sexual offenses, that is not sufficient by itself to prove beyond a reasonable doubt that he committed the charged crimes.

If you determine an inference properly can be drawn from this evidence, this inference is simply one item for you to consider along with all other evidence in determining whether the defendant has been proved guilty beyond a reasonable doubt of the charged crime.

Unless you are otherwise instructed, you must not consider this evidence for any other purpose.

Defendant contends this instruction violated his constitutional right to due process. He argues: The 2002 revision of CALJIC No. 2.50.01 given here clarifies that the prior conduct, proved by only a preponderance of the evidence, is not itself enough to convict beyond a reasonable doubt. However, this amounts to little more than a requirement jurors would apply anyway: that there be a corpus delicti of the current offense. The instruction still fails to distinguish the lesser standard of proof to establish the prior conduct from the greater standard of proof applicable to the ultimate propensity and guilt inference. The instruction also implicitly authorizes the jury to convict if the prior crimes evidence is found to be true beyond a reasonable doubt (as opposed to a preponderance of the evidence). Thus, when all is said and done, the instruction, after various surgeries, still permits a conviction based on a past offense, if that offense supports the inference of a disposition.

In People v. Reliford (2003) 29 Cal.4th 1007 (Reliford), the state Supreme Court upheld the constitutionality of the 1999 version of CALJIC No. 2.50.01. That version was substantially the same as the 2002 version, except it contained the statement, The weight and significance of the evidence, if any, are for you to decide and did not include the cautionary statement, If you determine an inference properly can be drawn from this evidence, this inference is simply one item for you to consider, along with all other evidence, in determining whether the defendant has been proved guilty beyond a reasonable doubt of the charged crime. (See Reliford, supra, at p. 1016.)

In Reliford, the high court provided the following partial explanation for finding the instruction constitutional: The first part of the instruction permits jurors to infer the defendant has a disposition to commit sex crimes from evidence the defendant has committed other sex offenses. The inference is a reasonable one. . . . [] The instruction next informs the jurors they may--but are not required to--infer from this predisposition that the defendant was likely to commit and did commit the charged offense. This, again, is a legitimate inference. . . . [] Defendant complains that, having found the uncharged sex offense true by a preponderance of the evidence, jurors would rely on this alone to convict him of the charged offenses. The problem with defendants argument is that the instruction nowhere tells the jury it may rest a conviction solely on evidence of prior offenses. Indeed, the instructions next sentence says quite the opposite: if you find by a preponderance of the evidence that the defendant committed a prior sexual offense . . . , that is not sufficient by itself to prove beyond a reasonable doubt that he committed the charged crime. (Reliford, supra, 29 Cal.4th at pp. 1012-1013, fn. omitted.)

After finding the 1999 version of CALJIC No. 2.50.01 constitutional, the court discussed the 2002 version: Although we find no constitutional error in the 1999 version of the instruction, we nonetheless recognize it could be improved. The 2002 revision to CALJIC No. 2.50.01 deletes the sentence, The weight and significance of the evidence, if any, are for you to decide and inserts an additional cautionary statement: If you determine an inference properly can be drawn from this evidence, this inference is simply one item for you to consider, along with all other evidence, in determining whether the defendant has been proved guilty beyond a reasonable doubt of the charged crime. Without passing on issues not before us--and mindful of the risk that our comments will again be misconstrued--we think the new sentence is an improvement. It provides additional guidance on the permissible use of the other-acts evidence and reminds the jury of the standard of proof for a conviction of the charged offenses. (Reliford, supra, 29 Cal.4th at p. 1016.)

In light of the Supreme Courts decision in Reliford, and the improvement of the 2002 version of CALJIC No. 2.50.01 over the 1999 version, we conclude the 2002 version of CALJIC No. 2.50.01 does not violate defendants due process rights. The instruction adequately cautions the jury not to convict based solely on the prior offense evidence.

IV

Prosecutorial Misconduct

During the prosecutors argument, she indicated twice that this case is not only about what defendant has done but about who he is. She explained defendant is a person who has the disposition to commit sex offenses, and repeatedly.

Defendant contends this argument was improper, because it invited the jury to convict him based on his status as a sex offender rather than his commission of the current offenses. However, defendant did not object to this argument at the time it was made and, therefore, has forfeited the issue for purposes of appeal. (People v. Clair (1992) 2 Cal.4th 629, 662 [It is, of course, the general rule that a defendant cannot complain on appeal of misconduct by a prosecutor at trial unless in a timely fashion he made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety.]

At any rate, later in her argument the prosecutor explained what she meant by the case being partially about who defendant is. She referred to section 1108 and explained the Legislature has concluded sex offenders are different from other types of offenders and are likely to recommit sex offenses. This was an appropriate reference to the law, although perhaps not artfully expressed. There was no misconduct.

V

Rape Conviction

We requested supplemental briefing on whether defendants conviction for rape is supported by substantial evidence. Defendant was charged with rape in connection with the incident that occurred in August 2001 when K. was sleeping in her room and defendant entered and got in bed with her. During the prosecutions case-in-chief, K. testified that defendant touched her and complained about her cut[ting him] off. She told him to stop but he persisted and did what he wanted to do. In their opening brief, the People cited nothing else to support this conviction.

Rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator under various circumstances. (Pen. Code,  261, subd. (a).) Sexual intercourse is a commonly used term referring to the penetration of a vagina with a penis. (People v. Stitely (2005) 35 Cal.4th 514, 554; People v. Holt (1997) 15 Cal.4th 619, 676.)

When K. testified defendant did what he wanted to do, this fell woefully short of proving defendant engaged in sexual intercourse with K. However, as the People point out in their supplemental brief, K. acknowledged on cross-examination that she and defendant had sex on this one occasion. On redirect, the prosecutor asked if defendant had an erection, and K. answered that he did and that defendant was not so drunk that he could not have sex with her.

There is again no direct testimony that penetration occurred. However, earlier in her testimony, K. laid the ground work for her understanding that the term have sex means sexual intercourse. K. testified that on July 23, 2000, defendant put his penis part way inside [her] vagina. Later, she testified the first time they had sexual intercourse was on August 6, 2000. She defined sexual intercourse as penetration of the vagina with the penis. Later she was asked, And then after you had sex with him on August 6th did you ever have sex with him again? K. answered in the affirmative. She testified the next time she had sex with defendant was on August 8. K. was asked how many times she had sex with defendant and then how many times she engaged in other sexual acts with him, such as oral copulation and digital penetration.

The foregoing testimony makes sufficiently clear that when K. testified defendant had sex with her against her will in August 2001, she was talking about sexual intercourse or, more particularly, penetration of the vagina with the penis. The testimony, viewed as a whole, supports defendants rape conviction.

Defendant also contends there is insufficient evidence of force or fear to support the conviction. Defendant argues that when K. was asked if force was used on this occasion, she answered Somewhat. Defendant further argues there is no evidence K. feared immediate bodily injury if she did not acquiesce in defendants advances.

[I]t has long been recognized that in order to establish force within the meaning of [Penal Code] section 261, [former] subdivision (2), the prosecution need only show the defendant used physical force of a degree sufficient to support a finding that the act of sexual intercourse was against the will of the [victim]. (People v. Griffin (2004) 33 Cal.4th 1015, 1023-1024.) Here, there was sufficient evidence of such force. K. testified that, during the August 2000 incident, she told defendant to stop six times and kept trying to push him away, but he persisted and completed the act of sexual intercourse. This testimony supports defendants rape conviction.

VI

Sentencing Issues

Defendant was sentenced on count one (Pen. Code,  269, subd. (a)(5) [forcible digital penetration of A.]) to an indeterminate term of 15 years to life. On count two (Pen. Code,  288, subd. (a) [lewd and lascivious act against A.]), the court imposed the upper term of eight years. This was designated the base term. On count three (Pen. Code,  288, subd. (a) [lewd and lascivious act against A.]), defendant received a consecutive, one-third middle term of two years. On counts four, five and six (Pen. Code,  288, subd. (c)(1) [lewd and lascivious act against K.]), he received consecutive, one-third middle terms of eight months. On counts nine and sixteen (Pen. Code,  261.5, subd. (d) [unlawful sexual intercourse with K.]), defendant was sentenced to consecutive, one-third middle terms of one year. On count seventeen (Pen. Code,  261, subd. (a)(2) [rape of K.]), defendant received a full, consecutive upper term of eight years. For the other offenses, the court either imposed concurrent terms or stayed sentence.

Defendant contends the trial court erred in imposing consecutive terms on counts 3, 4, 5, 6, 9 and 16 and upper terms on counts 2 and 17. He argues that in making these sentencing choices, the court relied upon facts not submitted to the jury and proved beyond a reasonable doubt, thereby violating the Sixth Amendment to the United States Constitution.

In Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi), the United States Supreme Court held that [o]ther 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 [147 L.Ed.2d at p. 455].) In Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely), the Supreme Court applied Apprendi to invalidate a state court sentence. (Id. at p. 303 [159 L.Ed.2d at p. 413].) In Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham), the Supreme Court applied Apprendi and Blakely to Californias determinate sentencing law and held that by assign[ing] to the trial judge, not to the jury, authority to find the facts that expose a defendant to an elevated upper term sentence, Californias determinate sentencing law violates a defendants right to trial by jury safeguarded by the Sixth and Fourteenth Amendments. (Id. at p. ___ [166 L.Ed.2d at p. 864], overruling on this point People v. Black (2005) 35 Cal.4th 1238, vacated in Black v. California (Feb. 20, 2007) ___ U.S. ___ [167 L.Ed.2d 36].)

The People contend defendant forfeited his Sixth Amendment arguments by failing to raise them at sentencing. We disagree. Defendant was sentenced on April 9, 2004. Blakely, which applied Apprendi to state court proceedings, was not decided until June 24, 2004. In sentencing proceedings preceding the decision in Blakely, a claim of sentencing error premised upon the principles established in Blakely and Cunningham is not forfeited on appeal by counsels failure to object at trial. (Black II, supra, 41 Cal.4th at p. 812.)

As for the merits of defendants arguments, Cunningham did not address whether the decision to run separate terms concurrently or consecutively must be made by the jury. However, in Black II, our State Supreme Court concluded Sixth Amendment rights are not implicated by a trial courts decision to run separate terms consecutively. The high court explained that nothing in Apprendi or Blakely suggests they apply to factual findings that are not the functional equivalent of elements of a crime. (Black II, supra, 41 Cal.4th at p. 821.) According to the court: The determination whether two or more sentences should be served [consecutively] is a sentencing decision[] made by the judge after the jury has made the factual findings necessary to subject the defendant to the statutory maximum sentence on each offense and does not implicate[] the defendants right to a jury trial on facts that are the functional equivalent of elements of an offense. (Id. at p. 823.)

We are bound by Black II (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), and therefore reject defendants challenge to his consecutive sentences.

Defendant contends the trial court erred in imposing upper terms on counts 2 and 17 based on factors found by the court by a preponderance of the evidence rather than by the jury beyond a reasonable doubt. We agree.

The trial court gave the following reasons for this sentencing choice: By the way I do find that the aggravating factors clearly outweigh the mitigating factors, and the only factor in mitigation in this case is that the defendant has an insignificant prior record of criminal conduct; but the factors and circumstances in aggravation clearly outweigh those [sic].

I will indicate this: Relative to Count 2, the manner in which the crime was carried out does indicate planning; and I indicated early on and I will again that the defendant engaged in violent conduct in that offense; and he does demonstrate a serious danger to society.

He basically forced his way and will upon a six-year-old girl and that does evidence violent conduct.

California Rules of Court, rule 4.421, lists circumstances in aggravation. (Undesignated rule references hereafter are to the California Rules of Court.) Included are the following: The manner in which the crime was carried out indicates planning, sophistication, or professionalism (rule 4.421(a)(8)); The defendant has engaged in violent conduct that indicates a serious danger to society (rule 4.421(b)(1)).

The People contend the trial court was authorized to consider these two aggravating circumstances in deciding to impose the upper term. They argue one aggravating factor alone authorizes an upper term sentence and, once an upper term sentence is authorized, the court may consider any other aggravating factors relevant to the sentencing choice. Further, the one aggravating factor authorizing an upper term sentence may be one found by the jury, admitted by the defendant or falling outside the scope of Apprendi and its progeny.

In Black II, the California Supreme Court concluded that so long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury. (Black II, supra, 41 Cal.4th at p. 813.) Under Californias determinate sentencing system, the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term. [Citation.] Therefore, 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. (Ibid.) According to the high court, imposition of the upper term does not infringe upon the defendants constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendants record of prior convictions. (Id. at p. 816.)

The People contend the one aggravating factor authorizing an upper term sentence in this case was defendants prior record of convictions. We disagree. Rule 4.421 lists a defendants prior record of convictions as a circumstance in aggravation. However, it requires more than just the fact of a conviction. It reads: The defendants prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness. (Rule 4.421(b)(2).) Thus, in order for the court to use a defendants prior criminal record as an aggravating factor, those convictions must be numerous or of increasing seriousness.

The trial court found defendant had only one prior conviction, and that was for a misdemeanor. The court in fact found defendants sparse criminal record to be a mitigating, rather than an aggravating, factor. In Black II, the court explained: The determinations whether a defendant has suffered prior convictions, and whether those convictions are numerous or of increasing seriousness [citation], require consideration of only the number, dates, and offenses of the prior convictions alleged. The relative seriousness of these alleged convictions may be determined simply by reference to the range of punishment provided by statute for each offense. (Black II, supra, 41 Cal.4th at pp. 819-820.) In Black II, the defendant had three misdemeanor convictions for second degree burglary, theft, and receiving stolen property, followed by two felony convictions for grand theft and burglary. The court found these to be both numerous and of increasing seriousness. (Id. at p. 818.) Here, by contrast, we find one misdemeanor conviction to be neither numerous nor of increasing seriousness. Hence, defendants prior criminal record cannot be used to authorize an upper term sentence.

The People nevertheless contend that, if it can be concluded the jury would have found at least one of the aggravating circumstances mentioned by the trial court to be true beyond a reasonable doubt, the upper term sentence was authorized and any Blakely error was harmless. Blakely error is reviewed under a harmless-beyond-a-reasonable-doubt standard. (Washington v. Recuenco (2006) 548 U.S. ___ [165 L.Ed.2d 466].) Here, the People argue, the jury would have found both of the aggravating circumstances mentioned by the trial court to be true beyond a reasonable doubt.

As the sole basis for this argument, the People assert the trial courts findings were based on uncontested evidence presented at trial. They point out that the victims testified to the various offenses and defendant admitted to having a sexual relationship with one of the victims.

This evidence proves only that defendant committed the charged offenses. It does not prove that the offenses were committed under circumstances involving planning and sophistication or that defendant engaged in violent conduct indicating a serious danger to society. On the record before us, we cannot say the jury would have found the aggravating factors beyond a reasonable doubt. Furthermore, we cannot assume the record before us contains all the evidence that might have been presented if the issues of planning and sophistication and violent conduct indicating a serious danger to society had been litigated at trial. (See Sandoval, supra, 41 Cal.4th at p. 839.) Therefore, the Blakely error was not harmless beyond a reasonable doubt.

Because of the foregoing error, the matter must be remanded for resentencing. Consistent with Sandoval, such resentencing shall be conducted in accordance with the sentencing laws and rules currently in force that eliminate the presumption of the middle term absent aggravating or mitigating factors. (See Sandoval, supra, 41 Cal.4th at pp. 845, 857-858.)

Disposition

Defendants sentence is reversed and the case is remanded to the trial court with directions to resentence defendant in accordance with Cunningham, Black II, and Sandoval. In all other respects, the judgment is affirmed.

HULL, J.

We concur:

NICHOLSON , Acting P.J.

RAYE , J.

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