P. .v Lee

Filed 8/10/07 P. .v Lee CA2/1

Opinion on remand from U.S. Supreme Court

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from a judgment of the Superior Court of Los Angeles County, Brian C. Yep, Judge. Affirmed.

Eric R. Larson, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Jaime L. Fuster, Supervising Deputy Attorney General, and Chung L. Mar, Deputy Attorney General, for Plaintiff and Respondent.

_______________________________________

Nathan Lee appeals from the judgment entered following a jury trial in which he was convicted of continuous sexual abuse of a child and child abuse. The convictions were based on evidence that defendant sexually abused his stepdaughter over a period of several years starting when she was five, and physically abused an eight-year-old male foster child who was living in the home. No evidence was presented in defense.

Defendant was sentenced to an upper term of 16 years in state prison for continuous sexual abuse based on the aggravating factors that the crime involved a high degree of cruelty in that the abuse lasted for seven or eight years, the victim was particularly vulnerable, defendant took advantage of a position of trust, and defendant used threats to intimidate the victim into silence. A concurrent sentence was imposed for child abuse.

In an opening brief filed in July 2005, defendant contended that use of factors in aggravation of sentence that were not found by the jury was improper under Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531], although he also acknowledged that his argument had been rejected by the California Supreme Court in People v. Black (2005) 35 Cal.4th 1238, 1244 (Black I). In an opinion previously filed in this case, we rejected his argument under the authority of Black I. (People v. Lee (Jan. 26, 2006, B180662) [nonpub. opn.] p. 2 (Lee I).)

Defendant later filed a petition for a writ of certiorari in the United States Supreme Court. While the petition was pending, that court decided Cunningham v. California (2007) ___U.S. ___ [127 S.Ct. 856] (Cunningham), and later granted defendants certiorari petition, vacated our judgment in Lee I, and remanded the matter to us for further consideration in light of Cunningham. (Lee v. California (Feb. 20, 2007, No. 05‑11192) ___ U.S. ___ [127 S.Ct. 1233].) The California Supreme Court has now considered Cunningham issues in People v. Black (July 19, 2007, S126182) ___ Cal.4th ___ [2007 Cal. Lexis 7604] (Black II) and People v. Sandoval (July 19, 2007, S148917) ___ Cal.4th ___ [2007 Cal. Lexis 7606].

Black II teaches that 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. (Black II, supra, ___ Cal.4th at p. ___ [2007 Cal. Lexis 7604, at p.* 29].)

Here, a legally sufficient aggravating circumstance exists by virtue of the jurys verdict convicting defendant of child abuse of the foster child, for which defendant was sentenced concurrently although a consecutive sentence could have been imposed. (See Cal. Rules of Court, rule 4.421(a)(7), setting forth the factor in aggravation that [t]he defendant was convicted of other crimes for which consecutive sentences could have been imposed but for which concurrent sentences are being imposed].)

As further explained in Black II, The [trial] courts factual findings regarding the existence of additional aggravating circumstances may increase the likelihood that it actually will impose the upper term sentence, but these findings do not themselves further raise the authorized sentence beyond the upper term. No matter how many additional aggravating facts are found by the court, the upper term remains the maximum that may be imposed. Accordingly, judicial fact finding on those additional aggravating circumstances is not unconstitutional. (Black II, supra, ___ Cal.4th at p. ___ [2007 Cal. Lexis 7604, at p.* 28].) Regardless of the trial courts reliance on aggravating factors not permitted under Cunningham, defendants contention of sentencing error must therefore be rejected.

The judgment is affirmed.

NOT TO BE PUBLISHED.

MALLANO, J.

We concur:

SPENCER, P. J.

ROTHSCHILD, J.

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