P. v. Thomas

Filed 8/29/07 P. v. Thomas CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County,

Robert J. Perry, Judge. Affirmed.

Richard D. Miggins, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr., and Timothy M. Weiner, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________

Defendant and appellant Stacey Thomas appeals from the judgment entered following a jury trial that resulted in his convictions for forcible rape and sexual penetration with a foreign object. Thomas was sentenced to 16 years in prison.

Thomas contends: (1) the trial court abused its discretion by allowing the disabled adult victims testimony without first ascertaining whether she understood the duty to tell the truth; (2) the trial court erred by failing to give a unanimity instruction; (3) instruction with CALJIC No. 2.11 misled the jury; (4) admission of a nurse practitioners testimony violated his confrontation rights (Crawford v. Washington (2004) 541 U.S. 36); and (5) imposition of upper term sentences violated his right to a jury trial (Blakely v. Washington (2004) 542 U.S. 296; Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856, 127 S.Ct. 856]). We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1.      Facts.

a. Peoples evidence.

Viewed in accordance with the usual rules governing appellate review (People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Johnston (2003) 113 Cal.App.4th 1299, 1303-1304), K. O. lived in a Los Angeles apartment building with her mother, father, and siblings. K. was mentally retarded and, although 20 years old, had the mental capabilities of a five- or six-year-old girl.

On June 30, 2004, K. went outside her apartment to wait for her father. Thomas and another unnamed man approached her. They grabbed her, covered her mouth to stifle her screams, and forced her to the apartment buildings rooftop. Thomas told K. he would kill her family if she did not lie down. Both men took turns raping K. They then fled, leaving her on the roof.

Upon discovering K.s absence, her family began searching for her. K.s mother discovered her walking down the stairs from the roof. She was crying and frightened. Her clothing and underwear were stained with semen.

b. Defense evidence.

Thomas testified in his own behalf. On the date of the incident, he had taken crystal methamphetamine and consumed nine shots of alcohol when he met a friend near K.s apartment building. They went to a party at the apartment complex, and K. walked up to the men. While Thomas used his cellular telephone, the friend spoke with K. Thomas believed K. and the friend wanted to be alone, so he went to the roof to use his telephone. On the rooftop, he saw K. and the friend engaged in sexual activities. The friend called to him, got off K., and asked did [Thomas] want it. Thomas asked, Yeah, like, is it cool? K. responded affirmatively. Thomas then attempted to engage in intercourse with K. but was unable to do so because he ejaculated prematurely. He and the friend exited the apartment building. When a police car arrived, he panicked.

2.      Procedure.

Trial was by jury. Thomas was convicted of forcible rape (Pen. Code,
261, subd. (a)(2)[1]and sexual penetration by a foreign object ( 289, subd. (a)(1)). The jury acquitted Thomas of kidnapping to commit rape and found the allegation he kidnapped the victim not true. Thomas was sentenced to 16 years in prison. The court imposed a restitution fine, a suspended parole revocation fine, a sexual assault fine, and a court security fee. Thomas appeals.

DISCUSSION

1. K. was properly sworn as a witness; any claim to the contrary or challenge to her competence has been waived.

a. Additional facts.

Prior to K.s testimony, the court clerk administered the standard oath to her, as follows: You do solemnly state that the testimony you may give in the cause now pending before this court shall be the truth, the whole truth and nothing but the truth so help you God? K. replied, Yes. The trial court then asked K. a series of questions, as follows:

The Court: How old are you?

[K.]: Im twenty years old.

The Court: And do you understand that you have said you will tell the truth?

[K.]: Yes.

The Court: What does it mean to tell the truth?

[K.]: That a man raped me.

The Court: Well, I want to before we talk about that and you must disregard that, ladies and gentlemen. [] We want to know if you can tell the truth.

[K.]: Yes.

The Court: Do you know the difference between the truth and a lie?

[K.]: But I didnt lie. I am telling the truth.

The Court: Well, I want to know do you know the difference between a truth and a lie?

[K.]: Yes.

The Court: All right. What color is this book?

[K.]: Blue.

The Court: All right. Blue, is that what you said? [] If I said the book was red, would that be the truth or would that be a lie?

[K.]: Its a lie.

The Court: All right. [] So are you he[re] to tell the truth?

[K.]: Yes.

The Court: All right, proceed.

Defense counsel did not object, and subsequently cross-examined K.

b. Discussion.

Thomas asserts K. was not properly sworn, and therefore her responses to questions on the stand did not rise to the level of testimonial evidence. He complains that the trial court failed to establish she understood the difference between truth and lies, failed to obtain her promise she would tell the truth, and failed to ascertain that she understood the consequences for untruthfulness. This contention lacks merit.

First, the contention is waived. As our Supreme Court held long ago, if defendant was unsatisfied with the adequacy of the oath-taking, he should have called the matter to the attention of the court. Any shortcomings in the procedure were waived both by failure to object and by taking the witness on cross-examination. (People v. Thomas (1967) 65 Cal.2d 698, 708; see also, e.g., People v. Berry (1968) 260 Cal.App.2d 649, 653.) Thomas did not object to K.s testimony; indeed, he cross-examined her. Therefore he cannot now complain about a purported procedural flaw that could easily have been remedied had he objected.

In any event, Thomass claim fails on the merits as well. Evidence Code section 710 provides: Every witness before testifying shall take an oath or make an affirmation or declaration in the form provided by law, except that a child under the age of 10 or a dependent person with a substantial cognitive impairment, in the courts discretion, may be required only to promise to tell the truth. Here, K. took the standard oath administered to witnesses. There was, therefore, no failure to comply with the mandates of Evidence Code section 710. Indeed, Thomas does not dispute that K. was administered the standard oath. We are unpersuaded by Thomass argument that the trial court, when questioning K. after the oath was given, did not ask whether she promised to tell the truth, but only whether she was there to tell the truth. This distinction is immaterial in light of the fact that K. had already been sworn with the standard oath.

Thomas further urges that the trial courts questioning of K. established the courts belief that for [K.], the standard oath was inadequate. Thomas argues that because K. was mentally disabled, with the mental abilities of a six-year-old, the trial court was required to satisfy the requirements of swearing a child and failed in that obligation. Distilled to its essence, Thomass contention appears to be that K. was incompetent as a witness. Again, this contention is unpersuasive.

In general, every person, irrespective of age, is qualified to be a witness. (Evid. Code, 700; People v. Dennis (1998) 17 Cal.4th 468, 525.) A witness is disqualified from testifying only if he or she is incapable of expressing himself or herself so as to be understood, or is incapable of understanding the duty of a witness to tell the truth. (Evid. Code, 701, subd. (a); People v. Anderson (2001) 25 Cal.4th 543, 572-573; People v. Mincey (1992) 2 Cal.4th 408, 444; People v. Roberto V. (2001) 93 Cal.App.4th 1350, 1368.) The party challenging the witness bears the burden of establishing lack of competence. (People v. Anderson, supra, at p. 573; People v. Dennis, supra, at p. 525.) Whether a witness has an understanding of the duty to testify truthfully is a preliminary fact to be determined exclusively by the trial court, whose determination will be upheld absent a clear abuse of discretion. (People v. Anderson, supra, at p. 573; People v. Lewis (2001) 26 Cal.4th 334, 360; People v. Augustin (2003) 112 Cal.App.4th 444, 449 [Absent a showing of an abuse of discretion, the appellate court will affirm a finding that a witness is competent to testify]; People v. Roberto V., supra, at p. 1368.)

We discern no abuse of discretion here. In any event, Thomas never challenged K.s competence in the trial court, and therefore never met his burden to establish K.s lack of competence. Thomass complaints that the trial court failed to ascertain whether K. knew there were consequences for lying, and that the hypothetical regarding the blue and red books was confusing, are unavailing. [A]ppellant, if he was dissatisfied with the answers, had the responsibility to request further inquiry into the witnesss compunction to tell the truth before the commencement of the childs testimony in chief. [Citation.] Since defense counsel did not make such a request or object at the trial to the testimony . . . on the basis that she was not competent, the ground for objection must be considered waived. (People v. Berry, supra, 260 Cal.App.2d at pp. 652-653.) Thomas cites no authority for the proposition that the testimony of a witness, whose competency was unchallenged by either party, must be stricken because the trial court failed to advise that there were consequences for untruthfulness.

2. A unanimity instruction was not required.

Thomas next asserts that, because evidence of two separate and distinct acts of sexual intercourse was presented, a unanimity instruction was required. Thomass claim appears to be based on the premise that because the evidence showed both he and his unnamed friend raped K., the jury might have convicted him based on the rape committed by the unnamed friend. He posits that it would not be unreasonable for the jury to conclude appellant was equally as liable for the rape perpetrated by the other man, as he was for the rape perpetrated by himself. We disagree that reversible error occurred.

A jury verdict must be unanimous in a criminal case. (People v. Russo (2001) 25 Cal.4th 1124, 1132.) Where the accusatory pleading charges only a single offense, but the evidence shows the defendant committed more than one act that could constitute that offense, and the prosecutor does not rely upon a single act, the jury must be instructed that the defendant can be found guilty only if the jurors unanimously agree the defendant committed the same, specific act comprising the crime. (Ibid.; People v. Melhado (1998) 60 Cal.App.4th 1529, 1534; People v. Dieguez (2001) 89 Cal.App.4th 266, 274-275.) The unanimity requirement is intended to eliminate the danger that the defendant will be convicted even though there is no single offense that all jurors agree he or she committed. (People v. Zavala (2005) 130 Cal.App.4th 758, 768; People v. Russo, supra, 25 Cal.4th at p. 1132.) In deciding whether to give the instruction, the trial court must ask whether (1) there is a risk the jury may divide on two discrete crimes and not agree on any particular crime, or (2) the evidence merely presents the possibility the jury may divide, or be uncertain, as to the exact way the defendant is guilty of a single discrete crime. In the first situation, but not the second, it should give the unanimity instruction. (People v. Russo, supra, at p. 1135.) Where required, a unanimity instruction must be given sua sponte. (People v. Dieguez, supra, 89 Cal.App.4th at pp. 274-275.) A unanimity instruction is notrequired when the evidence shows one criminal act or multiple acts in a continuous course of conduct. (People v. Jantz (2006) 137 Cal.App.4th 1283, 1292; People v. Lopez (2005) 129 Cal.App.4th 1508, 1533-1534; People v. Dieguez, supra, at pp. 274-275.)

Thomass argument is flawed. A unanimity instruction must be given when there is evidence a defendant committed more than one criminal offense, but is charged with only a single count. The instruction is necessary only if jurors could disagree on which act the defendant committed, yet still convict him of the charged crime. (People v. Champion (1995) 9 Cal.4th 879, 932.) This possibility exists only when the defendant is accused of a number of different incidents. (People v. Gonzalez (1983) 141 Cal.App.3d 786, 791-792, disapproved on another point in People v. Kurtzman (1988) 46 Cal.3d 322, 330.) That is not the situation here. Thomas admitted attempting intercourse with K. His defense was consent. There was no basis upon which the jury could have disagreed on which act he committed, as the evidence did not show he committed more than one rape. Thomas cites no authority for the proposition that a unanimity instruction must be given when a criminal defendant commits a single act that is similar or identical to an act committed by an uncharged accomplice. The jury was not instructed on aider and abettor liability. Therefore if jurors believed that the unnamed man, but not Thomas, committed the rape, they would have acquitted Thomas.

In any event, even assuming arguendo the trial court erred, any possible error was harmless under any standard. (See People v. Smith (2005) 132 Cal.App.4th 1537, 1545 [applying Chapman harmless beyond a reasonable doubt standard to erroneous failure to give unanimity instruction, but observing existence of a split of authority on the issue]; People v. Frederick (2006)142 Cal.App.4th 400, 419.) Thomas admitted attempting intercourse with K. His defense was that the incident was a consensual sexual encounter. This theory was obviously rejected by the jury. It is inconceivable that the jury credited Thomass version of events but nonetheless convicted him because it believed the unnamed friend raped K. Where the record indicates the jury resolved the basic credibility dispute against the defendant and therefore would have convicted him of any of the various offenses shown by the evidence, the failure to give the unanimity instruction is harmless. [Citation.] (People v. Thompson (1995) 36 Cal.App.4th 843, 853.)

3. The trial court did not err by instructing the jury with CALJIC No. 2.11.

The trial court instructed with the standard version of CALJIC No. 2.11, as follows: Neither side is required to call as witnesses all persons who may have been present at any of the events disclosed by the evidence or who may appear to have some knowledge of these events. Neither side is required to produce all objects or documents mentioned or suggested by the evidence. Thomas contends the instruction improperly conveyed to the jury the defense had an obligation to produce evidence in violation of the state and federal constitution[s]. He posits that by telling the jury the defense was not required to produce all relevant evidence, the instruction implied he was required to produce some evidence. This contention is meritless.

First, the instruction is a correct statement of law. (People v. Simms (1970) 10 Cal.App.3d 299, 313; People v. Wein (1958) 50 Cal.2d 383, 403, disapproved on other grounds in People v. Green (1980) 27 Cal.3d 1, 32-34, overruled on other grounds in People v. Daniels (1969) 71 Cal.2d 1119, 1140.) The parties do not point us to any objection to the instruction below. Because defense counsel never objected to the instruction, Thomass contention is waived. Generally, a party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language. [Citation.] (People v. Guiuan (1998) 18 Cal.4th 558, 570; People v. Geier (2007) 41 Cal.4th 555, 579; People v. Hillhouse (2002) 27 Cal.4th 469, 503.)

Apart from the question of waiver, Thomass argument is unpersuasive on the facts presented here. Thomas did not elect to rely on the state of the evidence; he testified. Thus, he did present evidence. Since Thomas presented at least some evidence, the jury could not have drawn the suggested inference from the instruction. Moreover, the jury was correctly instructed on the Peoples burden of proof (CALJIC No. 2.90). Accordingly, there is no likelihood the jury would have drawn any improper inferences from CALJIC No. 2.11.

4. Admission of nurse practitioners testimony.

a. Additional facts.

Nurse practitioner Maria Ruiz performed a sexual assault examination on K. in the early morning hours after the rape occurred. The next day, July 2, 2004, a second examination was performed by nurse practitioner Julie Lister.

Prior to trial, the prosecutor informed the trial court that she intended to offer a standard sexual assault form documenting the examination conducted by Ruiz as a business record. The trial court held that the actual report was admissible but statements made by K. and recorded on the form were hearsay. Subsequently, the parties stipulated that nurse Lister could testify regarding certain portions of the Ruiz report, provided that K.s hearsay statements were redacted. To that end, the parties agreed on which portions of the report should be redacted.

Nurse Lister subsequently testified at trial regarding the agreed-upon portions of the report, as follows. The report indicated the date and time of the examination, and gave a physical description of K. as small, thin, child-like, quiet, and soft-spoken; she walked with a limp and appeared developmentally delayed. Various boxes on the form were checked, indicating the victim reported kissing; orally copulating the assailants genitals; penile penetration of her vagina; and digital penetration of her vagina and anus. A Woods lamp evaluation had been positive, indicating the presence of semen, saliva, or blood on K.s genital areas. Ruiz took vaginal and genital swabs. K. had an estrogenized hymen. A few pink petechiae, i.e., ruptured capillaries, were present between the perihymen and the fossa. The hymen area was a little bit tender when examined.

b. Discussion.

Thomas contends admission of Listers testimony regarding the report prepared by Ruiz violated his confrontation rights. We disagree.

First, and most fundamentally, Thomas did not object to Listers testimony or questions regarding the report on hearsay grounds. To the contrary, he stipulated that Lister could be questioned regarding the relevant portions of the report prepared by Ruiz. Thomass contention is therefore not cognizable on appeal. (Evid. Code, 353, subd. (a); People v. Coffman and Marlow (2004) 34 Cal.4th 1, 81-82; People v. Zepeda (2001) 87 Cal.App.4th 1183, 1208; Jurcoane v. Superior Court (2001) 93 Cal.App.4th 886, 891, fn. 3 [ It is well settled by statute and case authority that the failure to object, even to otherwise inadmissible evidence, waives the defect and waives such argument for purposes of appeal]; see generally People v. Waidla (2000) 22 Cal.4th 690, 717.)

In any event, much of Ruizs report was nontestimonial. Contrary to Thomass assertion, Listers testimony that she recognized the report and that Ruiz had been formerly employed by the hospital as a nurse practitioner, was not hearsay at all.
Hearsay evidence 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. (Evid. Code 1200.) Evidence that Lister was familiar with a particular hospital document, and knew Ruiz was employed as a nurse at the hospital, simply does not fall within this definition.

Crawford cited business records as one example of nontestimonial hearsay statements. (Crawford v. Washington, supra, 541 U.S. at p. 56; People v. Geier, supra, 41 Cal.4th at p. 597.) That a document was admitted as a business or official record is not dispositive, however. Classification as a business record . . . does not alone determine whether this type of evidence is admissible as nontestimonial under Crawford. (People v. Mitchell (2005) 131 Cal.App.4th 1210, 1222; People v. Geier, supra, at p. 606, fn. 12.) A statement is testimonial only if it is (1) made to a law enforcement officer, or by or to a law enforcement agent; (2) describes a past fact related to criminal activity; and (3) is for possible use at a later trial. (People v. Geier, supra, 41 Cal.4th at p. 605.) In Geier, the defendant complained that testimony about DNA analysis violated Crawford where the testifying doctor had not run the tests herself. Geier rejected this contention. There was no question the DNA analysis was requested by a police agency, and the persons who completed the analysis were paid to do the work as part of a government investigation. (Id. at p. 605.) Further, it was reasonably anticipated that the DNA report might be used at a later criminal trial. (Ibid.) However, the DNA analysts observations constitute[d] a contemporaneous recordation of observable events rather than the documentation of past events. That is, she recorded her observations regarding the receipt of the DNA samples, her preparation of the samples for analysis, and the results of that analysis as she was actually performing those tasks. (Id. at pp. 605-606.) Therefore, the report was nontestimonial. (Id. at p. 607.)

The same is true here in regard to much of the reports contents. Ruiz observed the patients current condition and recorded the medical procedures she conducted, such as collecting vaginal swabs. Accordingly, to the extent the report contained information regarding Ruizs observations and the procedures she employed, Crawford is not implicated.[2]In short, Thomass contention lacks merit.

5. Blakely/Cunningham error.

The trial court sentenced Thomas to the upper terms of eight years each on counts 2 (forcible rape) and 4 (penetration by a foreign object). It concluded that no mitigating circumstances existed; that the crimes involved a high degree of cruelty and callousness; and that Thomas had been on probation at the time of the offenses. Thomas contends that imposition of upper term sentences based on facts not found true beyond a reasonable doubt by the jury violated his right to a jury trial. (Cunningham v. California, supra, 127 S.Ct. 856; Blakely v. Washington (2004) 542 U.S. 296.)

In Apprendi v. New Jersey (2000) 530 U.S. 466, 490, the United States Supreme Court held that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be tried to a jury and proved beyond a reasonable doubt. In Cunningham, the Court held that Californias determinate sentencing law violates a defendants federal constitutional right to a jury trial under the Sixth and Fourteenth Amendments by assigning to the trial judge, rather than the jury, the authority to make factual findings that subject a defendant to the possibility of an upper term sentence. (Cunningham v. California, supra, 127 S.Ct. at p. 871; People v. Black (2007) 41 Cal.4th 799, 805, 808-809; People v. Sandoval (2007) 41 Cal.4th 825, 831-832.)

However, imposition of an upper term sentence does not infringe upon a 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. (People v. Black, supra, 41 Cal.4th at p. 816.) Under California law, the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for imposition of the upper term. (People v. Black, supra, at p. 813; People v. Osband (1996) 13 Cal.4th 622, 728.) Therefore, [a]s long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional factfinding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendants right to jury trial. (People v. Black, supra, at p. 812.) In other words, 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. (People v. Black, supra, at p. 813.) Where all aggravating factors relied upon by the trial court are based upon facts neither admitted by defendant or established by the jurys verdict, however, a defendants Sixth Amendment rights are violated.

Here, the trial court relied upon two aggravating factors: that the crimes involved a high degree of cruelty and callousness, and Thomas had been on probation at the time of the offenses. Neither fact was admitted by Thomas or found true by the jury.

As to the fact Thomas was on probation, the right to a jury trial does not apply to the fact of a prior conviction. (People v. Black, supra, 41 Cal.4th at p. 818.)  [R]ecidivism . . . is a traditional, if not the most traditional, basis for a sentencing courts increasing an offenders sentence. [Citation.] (Ibid.) This recidivism exception applies not only to the fact of the prior conviction, but also to other related issues that may be determined by examining the records of the prior convictions. (Id. at p. 819.) Thus, the fact that a defendants prior convictions are numerous or of increasing severity need not be determined by a jury. (Id. at pp. 819-820.) It is reasonable to conclude that the fact a defendant was on probation at the time he or she committed the instant crime falls within this recidivism exception.

However, even assuming arguendo that Thomass probationary status was a fact that had to be found true by a jury, we conclude any error was harmless. The denial of the right to a jury trial on aggravating circumstances is reviewed under the harmless error standard set forth in Chapman v. California (1967) 386 U.S. 18, 24. (People v. Sandoval, supra, 41 Cal.4th at p. 838; Washington v. Recuenco (2006) 548 U.S. ___ [165 L.Ed.2d 466, 126 S.Ct. 2546, 2553].) In making this determination, we must determine whether, if the question of the existence of an aggravating circumstance or circumstances had been submitted to the jury, the jurys verdict would have authorized the upper term sentence. (People v. Sandoval, supra, at p. 838.) [I]f a reviewing court concludes, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury, the Sixth Amendment error properly may be found harmless. (Id. at p. 839.) Sandoval observed that, in making this determination, a reviewing court cannot necessarily assume that the record reflects all of the evidence that would have been presented had aggravating circumstances been submitted to the jury. A defendant at trial does not necessarily have the reason or opportunity to challenge the evidence supporting aggravating circumstances unless such a challenge would also have tended to undermine proof of an element of the offense. (Ibid.)

We are confident beyond a reasonable doubt that a jury would have found the crimes involved a high degree of cruelty or callousness had the question been put to it. Thomas, accompanied by another man, took K. to the roof, where both men raped and digitally penetrated her. K., though 20 years old, had the mental capacity of a five- or six-year-old. K. also suffered from convulsions, was small, thin, child-like, quiet, and walked with a limp. We note that at sentencing Thomass counsel argued that Thomas had experienced a difficult upbringing and had himself been in special education classes (although not, apparently, due to mental retardation). Counsel urged that Thomas had been neglected by his mother, had witnessed his sister drown, and had suffered head injuries at the age of two. Nonetheless, given the circumstances of the crime and the nature of the victim, we believe it clear beyond a reasonable doubt that if the question of the existence of aggravating circumstances had been submitted to the jury, the jurys verdict would have authorized the upper term sentences. (People v. Sandoval, supra, 41 Cal.4th at p. 838.)

DISPOSITION

The judgment is affirmed.

ALDRICH, J.

We concur:

KLEIN, P. J.

KITCHING, J.

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[1] All further undesignated statutory references are to the Penal Code.

[2] Thomas does not contest that the report was properly admitted under state law as a business record, and we therefore have no occasion to address the issue.