Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. YA042302. Dudley W. Gray II and Francis J. Hourigan, Judges.
Nancy J. King, 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, Senior Assistant Attorney General, Deputy Attorney General, for Plaintiff and Respondent.
MANELLA, J.
A multiple count information was filed against appellant Manuel DeJesus Hernandez, alleging, inter alia, that he had engaged in lewd acts upon a child. The judgment following appellant’s first trial was reversed, and the matter was remanded for retrial. At appellant’s second trial, a jury found appellant guilty on all counts. We affirm the judgment following the second trial.
PROCEDURAL BACKGROUND
On April 20, 2000, an information was filed against appellant, alleging that he had committed numerous offenses against a single victim. The information charged him in count 1 with continuous sexual abuse. (Pen. Code, § 288.5, subd. (a).) In addition, it charged him with 10 counts of lewd acts upon a child under 14 years of age (§ 288, subd. (a)), nine counts of lewd acts upon a child of 14 or 15 years of age with an age difference of 10 years (§ 288, subd. (c)(1)), one count of sexual penetration with a foreign object (§ 289, subd. (i)), and one count of oral copulation with a person under 16 years of age (§ 288a, subd. (b)(2)).
All further statutory citations are to the Penal Code unless otherwise indicated.
The jury in appellant’s first trial found appellant guilty on all counts. We reversed the judgment following appellant’s first trial, concluding that the trial court’s improper removal of a juror had denied appellant’s right to a trial, and that the doctrine of double jeopardy proscribed a retrial. (People v. Hernandez (Feb. 6, 2002, B145238) [nonpub. opn.].) In People v. Hernandez (2003) 30 Cal.4th 1, our Supreme Court held that this violation of jury trial rights did not create a double jeopardy bar to retrial. We subsequently remanded the matter for retrial. (People v. Hernandez (Jul. 29, 2003, B145238) [nonpub. opn.].)
Trial by jury began on January 14, 2004. At the outset of the trial, the trial court denied appellant’s motion to suppress a confession that he had made to police investigators. On February 10, 2004, the jury found appellant guilty on all counts.
On March 25, 2004, the trial court imposed a total sentence of 43 years and four months in prison. This appeal followed. In our original opinion (People v. Hernandez (April 18, 2005, B174486) [nonpub. opn.], review granted July 20, 2005, S134160), we concluded under Blakely v. Washington (2004) 542 U.S. 296 (Blakely) that the trial court erroneously imposed the upper term on the count for continuous sexual abuse, modified the judgment on this ground, and affirmed the judgment, so modified. Our Supreme Court granted review and remanded the case to us for reconsideration in light of People v. Black (2005) 35 Cal.4th 1238 (Black I). Upon remand, we affirmed the original judgment of the trial court in its entirety (People v. Hernandez (Oct. 11, 2005, B174486) [nonpub. opn.], cert. granted February 20, 2007). The United States Supreme Court subsequently reversed Black I in part in Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham), and on February 20, 2007, it remanded the case to us for reconsideration in light of Cunningham.
We requested the parties submit supplemental briefing on the effect, if any, of Cunningham on appellant’s sentence. Our conclusions regarding appellant’s contentions on issues other than sentencing remain as stated in our opinion following the remand for reconsideration under Black I (People v. Hernandez (Oct. 11, 2005, B174486) [nonpub. opn.], cert. granted and case remanded February 20, 2007).
FACTS
A. Prosecution Evidence
The key prosecution witness was M., who testified that she is appellant’s daughter. M. further testified that appellant began to abuse her sexually in 1995, when she was nearly 10 years of age, and that his conduct continued until November 1999, when she first disclosed the abuse to her mother and other relatives. M.’s mother and some relatives also testified about this disclosure and appellant’s subsequent arrest. These relatives included M.’s half-sister, E. Sheri Lovall, a nurse practitioner, testified that although M. did not display signs of sexual abuse, her physical condition was consistent with the alleged sexual misconduct.
Finally, Hawthorne Police Detective Joel Romero testified that when he interviewed appellant on November 10, 1999, appellant admitted that he had engaged in sexual relations with M. on several occasions, and appellant subsequently made a recorded statement. A videotape of the interview and the statement were played to the jury.
B. Defense Evidence
Hawthorne Police Officer Yency Mena testified that on November 9, 1999, M.’s mother described to her a family gathering on the same day at which M. disclosed appellant’s misconduct. Hawthorne Police Officer Robert Storey testified that E. told him about the same family gathering during an interview on November 10, 1999.
Wilfredo Hernandez, appellant’s brother, testified that he resided with appellant and his family for periods of six to eight months in 1997 and 1998. According to Wilfredo Hernandez, he and appellant worked together at construction sites after 8:00 a.m, and he sometimes accompanied M.’s mother to her workplace. He saw only normal relationships within appellant’s family.
Finally, Aristides Molina testified that appellant performed shift work in Molina’s factory for periods between 1992 and 1997. According to Molina, appellant was “a great worker.”
DISCUSSION
Appellant contends that (1) the trial court erroneously denied his motion to suppress his confession, and (2) there was sentencing error under Blakely and Cunningham.
A. Confession
Appellant contends that the trial court erred in concluding that his confession was voluntary. We disagree.
1. Governing Principles
“The Fourteenth Amendment to the federal Constitution and article I, section 15, of the state Constitution bar the prosecution from using a defendant’s involuntary confession. [Citation.] . . . [¶] Under both state and federal law, courts apply a ‘totality of circumstances’ test to determine the voluntariness of a confession. [Citations.] Among the factors to be considered are ‘“the crucial element of police coercion [citation]; the length of the interrogation [citation]; its location [citation]; its continuity” as well as “the defendant’s maturity [citation]; education [citation]; physical condition [citation]; and mental health.”’ [Citation.] On appeal, the trial court’s findings as to the circumstances surrounding the confession are upheld if supported by substantial evidence, but the trial court’s finding as to the voluntariness of the confession is subject to independent review. [Citations.] In determining whether a confession was voluntary, ‘[t]he question is whether defendant’s choice to confess was not “essentially free” because his will was overborne.’ [Citation.]” (People v. Massie (1998) 19 Cal.4th 550, 576.)
2. Evidence and Ruling
At the hearing on appellant’s motion, the trial court heard testimony from Romero and appellant, and it reviewed a video recording and translation of Romero’s interview of appellant.
Romero testified that the interview was conducted at approximately 6:00 p.m. on November 10, 1999. Romero was initially assigned to act as a translator for the investigation officer, but he was permitted to conduct the questioning to avoid the difficulties of a translated interview.
Appellant testified that before the recorded interview, Romero visited appellant in his jail cell and told him that unless he cooperated, he would be “going to prison for a long time.” In rebuttal, Romero denied that any such meeting had taken place.
The transcript of the interview discloses the following facts: Romero identified himself, determined that appellant spoke only Spanish, and issued Miranda warnings to appellant. After appellant agreed to talk with Romero, Romero said that he would tell appellant the truth. Romero explained that a member of appellant’s family had charged him with crimes, and that as a detective, he “work[ed] with people who . . . commit crimes like these . . . .”
Miranda v. Arizona (1966) 384 U.S. 436.
Appellant indicated that he was born in El Salvador, was then 42 years old, had left school after the second grade, and was not taking any medication. He stated that he was the father of M. and a boy, Mario. He subsequently denied any misconduct with M., attributed the allegations to his sister-in-law, and suggested that his sister-in-law’s son may have engaged in sexual relations with M.
Romero explained a polygraph test to appellant, and asked him whether he would submit to such a test. Appellant said that he would do so, and that it would show that he was telling the truth. Romero then indicated that he was going to make some phone calls. Before leaving the interview room, he told appellant that “these are common cases,” and that appellant had an opportunity to repair his family and to avoid having M. grow up to be “a person like a prostitute.”
When Romero returned, he said that M. had been examined in a hospital, and that he had spoken with M. He indicated that the hospital examination had confirmed M.’s allegations, and that M. had agreed to take a polygraph test. Romero stated: “[T]here is no doubt in my mind that you committed the acts that you . . . are being accused of.”
Romero continued: “I am not here uh, Manuel to accuse you, to say that you are less of a person, because I wouldn’t, I wouldn’t do that. I wouldn’t be disrespectful to you, bro. Okay, but not what . . . the problem that we have is that we have a family that is obviously suffering. Okay, Manuel, obviously we have a family that is torn apart. . . . [W]e are convinced that yes, this did happen. On many occasions Manuel, us, we men, need something . . . we need a little help. We need uh, we . . . we feel insecure about ourselves. . . . And sometimes the people we least want to hurt, are the ones we hurt the most. And it’s not because you are a bad person, Manuel, it’s not that. But you are . . . you are a person, Manuel, you obviously made a mistake. Right? And I see it as a, a mistake.”
Romero thereafter emphasized the hurt and embarrassment that appellant felt, and his family’s suffering and guilt. He indicated that M.’s examination had disclosed “riptures [sic] inside,” and he suggested that M.’s mother wondered whether she was “woman enough” for appellant. He urged appellant to repair the damage to his family and acknowledge that he had hurt M.
Romero indicated that M. had said that the misconduct began when she was 11 years old, and appellant responded that it had started “a year ago.” Romero then reported that M. had attributed her loss of virginity to appellant.
When appellant displayed reluctance to agree with this statement, Romero said: “[Y]ou well know and I well know Manuel, that she is not the person who we have to blame in this. And you know what . . . Manuel? I don’t blame you either. And I don’t blame you because I have sat down with people here in these same chairs and . . . there are people who say to me, “‘I have committed those, those, those acts. That did happen but they didn’t happen because I am a, a criminal. They are . . . they happened because I need help.’”
Romero continued: “I believe you that you aren’t a sexual molester, sexual predator. . . . I think that you committed some acts by mistake. You committed those mistakes when you possibly fell in love with your daughter. Maybe you lost a sense of what is love for your daughter and what is love for a person like a girlfriend. . . . That is the only explanation I have. The only thing that I expect is that you can explain to me why and how it happened. . . .”
After Romero stated that M.’s examination had not disclosed any signs of force, appellant asked, “You don’t have any proof that the [or: my] penis entered?” Romero responded, “Yes,” and indicated that the results of DNA tests and M.’s polygraph test supported this answer. He said, “[T]he machine . . . didn’t lie to us.”
When appellant expressed concerns about losing his family, Romero said, “I know that I am talking with a father. . . . And I know that you as a father[] made some bad decisions. Right? And uh, I don’t blame you because maybe there was something lacking in the family. And in your daughter you saw something that, that told you to have the satisfaction. Do you understand me? Uh, but we have to move on. We have to move on and obviously we have to try to, to figure out a way so that your family knows that you are sorry.”
Appellant subsequently conceded that when he was having sexual relations with M., he knew that someone would eventually discover this conduct. He indicated that it had been going on for less than a year, and it occurred when appellant’s wife and son were absent.
When appellant apparently denied that his relations with M. involved penetration, Romero told him that M.’s examination disclosed proof that he had engaged in penetration. He indicated that appellant’s semen had been detected during M.’s examination, and that M.’s polygraph test confirmed the matter.
Romero stated: “You can say that all the . . . all the doctors are a bunch of liars and all that, but when one . . . one, one of those doctors, one of those experts comes and says, ‘I found this,’ there is no longer any doubt. No judge is going to believe that this didn’t happen after we present everything that we have discovered.” He again stated that “there was damage inside of” M.
Romero then asked appellant to tell the truth for “the last time.” Appellant said that the incidents had begun less than a year before, and they occurred when appellant’s wife and son were absent. He acknowledged “a few” incidents, and said that “not all [were] penetrations.” He also provided some details about the incidents.
Following the interview, appellant made a recorded statement for his family. In the statement, appellant asked for forgiveness and said that he needed “psychological help.”
Upon review of the evidence, the trial court concluded that (1) no meeting between Romero and appellant had occurred before their recorded interview. It further found: (2) the interview did not involve a coercive atmosphere, beyond that inherent in a custodial setting; (3) appellant understood the seriousness of his situation and could read, notwithstanding his second grade education; (4) appellant made an express and intelligent waiver of his rights, after these rights were explained to him; (5) the interview was relatively short and gentle; (6) appellant had an adequate opportunity to reflect on the questions asked; (7) there was no use of physical force; and (8) nothing in Romero’s questioning impaired the voluntariness of appellant’s confession. It thus denied appellant’s motion.
3. Analysis
Appellant does not directly dispute items (1) through (7), which are amply supported by substantial evidence. The focus of his challenge is item (8). He contends that Romero’s questioning involved coercive psychological tactics that rendered appellant’s confession involuntary. As we explain below, he is mistaken.
First, appellant argues that Romero misled appellant about the legal consequences of a confession, and coaxed appellant to believe that he was not accused of crimes, but merely needed to talk to the police to help his family. He points to Romero’s statements that he believed that appellant was not a “bad person,” sexual molester, or sexual predator, that appellant had made mistakes and needed “a little help,” and that appellant could repair his familial relationships by admitting misconduct.
In People v. Ray (1996) 13 Cal.4th 313, 339-340, our Supreme Court stated: “In general, ‘“any promise made by an officer or person in authority, express or implied, of leniency or advantage to the accused, if it is a motivating cause of the confession, is sufficient to invalidate the confession and to make it involuntary and inadmissible as a matter of law.’” [Citations.] In identifying the circumstances under which this rule applies, we have made clear that investigating officers are not precluded from discussing any ‘advantage’ or other consequence that will ‘naturally accrue’ in the event the accused speaks truthfully about the crime. [Citation.] The courts have prohibited only those psychological ploys which, under all the circumstances, are so coercive that they tend to produce a statement that is both involuntary and unreliable. [Citations.]”
Here, Romero began the interview by giving appellant Miranda warnings, including that whatever appellant said would be used against him in a court of law. Furthermore, he stated that appellant had been charged with crimes, and he never said or implied that appellant’s confession would alter or mitigate this fact. Accordingly, Romero’s references to the possibility of help for appellant and appellant’s opportunity to repair his family relationships, viewed in context, do nothing more than indicate advantages naturally accruing from a confession. (People v. Bradford (1997) 14 Cal.4th 1005, 1043 [officer’s reference to possibility of help for defendant is not an improper promise of leniency]; People v. Chutan (1999) 72 Cal.App.4th 1276, 1282 [officer’s remark to defendant charged with child abuse that what happened during interview affected defendant’s family is not coercive]; People v. Spears (1991) 228 Cal.App.3d 1, 27 [officer’s remark that defendant would be better off if he gave officer “the scoop” is not an improper promise of leniency because the indicated benefits were purely psychological].)
We recognize that Romero tried to establish a relationship with appellant by stating that he personally viewed appellant as a person who had merely made “mistakes,” rather than as a sexual molester, sexual predator, or bad person. In one instance, Romero told appellant that he had previously interviewed people who admitted to sexual misconduct with children but denied that they were criminals.
Nonetheless, that Romero evinced a sympathetic personal view of the crimes to encourage appellant to confess does not, by itself, render appellant’s confession involuntary. (See People v. Holloway (2004) 33 Cal.4th 96, 116 [officer’s suggestion that killings might have been accidental or the product of drunken rage did not invalidate confession]; People v. Bradford, supra, 14 Cal.4th at p. 1043 [officer’s efforts to establish a rapport with the defendant do not constitute coercion]; Miller v. Fenton (3d Cir. 1986) 796 F.2d 598, 612 [officer’s friendly manner, remark that he personally believed that the defendant was not a criminal, and offer of psychiatric help did not impair voluntariness of confession].)
Here, Romero never suggested that appellant’s “mistakes” were not punishable as crimes, or that Romero’s ostensible personal views could affect the legal consequences of appellant’s confession. The record indicates that throughout the interview, appellant understood the gravity of the charges against him. We therefore conclude that under the totality of the circumstances, Romero’s sympathetic approach to appellant did not impair the voluntariness of appellant’s confession.
Appellant disagrees, citing People v. McClary (1977) 20 Cal.3d 218, disapproved on another ground in People v. Cahill (1993) 5 Cal.4th 478, 510, footnote 17, People v. Hinds (1984) 154 Cal.App.3d 222, People v. Cahill (1994) 22 Cal.App.4th 296, and People v. Flores (1983) 144 Cal.App.3d 459. However, in each of these cases, the interrogating officer misrepresented the legal consequences of the defendant’s confession, and therefore they are factually distinguishable. (People v. McClary, supra, 20 Cal.3d at p. 229 [officers implied that if defendant confessed, she might be charged only as accessory after the fact to murder, rather than as principal to murder]; People v. Hinds, supra, 154 Cal.App.3d at p. 238 [officers repeatedly suggested that if defendant confessed to murder, his punishment might be less than the death penalty]; People v. Cahill, supra, 22 Cal.App.4th at pp. 314-315 [officers suggested that defendant might avert a charge of murder if he admitted to unpremeditated killing, notwithstanding plain possibility of a charge of felony-murder]; People v. Flores, supra, 144 Cal.App.3d at pp. 470-471 [officers indicated that defendant might avoid death penalty if he confessed to murder and robbery].)
Second, appellant contends that Romero’s deceptive statements about the evidence incriminating appellant amounted to coercion. Contrary to Romero’s statements, no examination of M. had disclosed physical evidence of appellant’s misconduct, and no DNA or polygraph testing had occurred.
As our Supreme Court explained in People v. Farnam (2002) 28 Cal.4th 107, 182, “‘[l]ies told by the police to a suspect under questioning can affect the voluntariness of an ensuing confession, but they are not per se sufficient to make it involuntary.’ [Citations.] Where the deception is not of a type reasonably likely to procure an untrue statement, a finding of involuntariness is unwarranted. [Citation.]”
An elaboration of this standard is found in People v. Chutan, supra, 72 Cal.App.4th at page 1280: “So long as a police officer’s misrepresentations or omissions are not of a kind likely to produce a false confession, confessions prompted by deception are admissible in evidence. [Citations.] Police officers are thus at liberty to utilize deceptive stratagems to trick a guilty person into confessing. The cases from California and federal courts validating such tactics are legion. [Citations.]”
Thus, in People v. Farnam, supra, 28 Cal.4th at pages 182-183, the court held that the defendant’s confession to an assault and robbery was voluntary, even though the interrogating officers had falsely told the defendant that his fingerprints had been found on the victim’s wallet. Again, in People v. Thompson (1990) 50 Cal.3d 134, 161, 166-170, the court made a similar determination, notwithstanding the interrogating officer’s false representations to the defendant that several items of evidence identified the defendant as the perpetrator of a murder.
In view of this authority, we conclude that Romero’s false statements about the evidence against appellant did not invalidate his confession. Citing People v. Hogan (1982) 31 Cal.3d 815, disapproved on another ground in People v. Cooper (1991) 53 Cal.3d 771, 836, appellant nonetheless contends that Romero’s representations about the compelling nature of this evidence rendered them coercive. We are not persuaded.
In Hogan, officers investigating two homicides repeatedly interviewed the defendant, who initially denied his guilt. (31 Cal.3d at pp. 834-844.) They falsely stated that eyewitnesses had seen him commit the murders, asked him whether he had a mental problem, and offered him help. (Id. at pp. 835-841.) He became distraught, began to question his own sanity, and made incriminating admissions. (Ibid.) The court in Hogan concluded that these admissions were not voluntary due to improper offers of leniency based on the defendant’s purported mental problem. (Id. at p. 841.) In so concluding, the Hogan court noted that the officers’ false statements about eyewitnesses had caused the defendant to doubt his sanity, and thus made their offer of leniency more compelling to the defendant. (Id. at pp. 840-841.)
The situation before us does not resemble the extraordinary circumstances presented in Hogan. Unlike Hogan, nothing suggests that Romero’s false statements about evidence caused appellant to question his sanity. Furthermore, unlike Hogan, Romero’s references to help were related to appellant’s motivation for sexual contact with M., rather than to any cognitive inability on appellant’s part to understand his situation.
Finally, appellant contends that Romero used interrogation techniques that often result in false confessions. In support of this contention, he points to two publications by different psychologists that were cited to the trial court, but never admitted into evidence. Because these expert opinions fall outside the evidentiary record before us, they are not material to our analysis. (Kendall v. Barker (1988) 197 Cal.App.3d 619, 625.)
In sum, the trial court properly concluded that appellant’s confession was voluntary.
B. Sentencing Error
Appellant contends that his sentence is improper under Blakely and Cunningham. The trial court imposed a term of imprisonment totaling 43 years and four months. It sentenced appellant to the upper term of 16 years for the count of continuous sexual abuse; in addition, pursuant to section 1170.1, subdivision (a), it imposed consecutive two-year terms for the counts of lewd acts with a child under 14 years of age, and consecutive eight-month terms for the remaining counts. Appellant argues that Blakely and Cunningham bar the imposition of (1) the upper term for continuous sexual abuse and (2) consecutive -- rather than concurrent -- terms for the remaining offenses. For the reasons explained below, we do not discern reversible error.
1. Forfeiture
At the outset, respondent argues that appellant has forfeited his contentions by failing to raise them before the trial court. Respondent acknowledges that appellant was sentenced prior to Blakely, but maintains that appellant was obliged to raise an objection under Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) to avoid a forfeiture. We disagree. In People v. Black (2007) 41 Cal.4th 799, 810 (Black II), our Supreme Court recently addressed and rejected a similar contention on materially identical facts.
2. Upper Term
We therefore examine the merits of appellant’s contentions, beginning with his challenge to the imposition of the upper term for continuous sexual abuse. Our inquiry into this contention is controlled by Blakely and Cunningham, which establish that appellant was entitled to a jury trial on the facts supporting the selection of the upper term, with the exception of those facts that the trial court is permitted to determine under Apprendi. (Blakely, supra, 542 U.S. at p.301; Cunningham, supra, 127 S.Ct. at pp. 860, 871.) In Apprendi, defendant’s sentence had been doubled because the trial court found the crime to have been motivated by racial animus. The court held that the doubling was improper because “[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.” (Apprendi, supra, at 530 U.S. at p. 490.)
Under section 288.5, subdivision (a), it is an offense for a person who resides in the home of a child under 14 years of age to engage in three or more acts of substantial sexual conduct with the child over a period of three months or more. In imposing the upper term, the trial court found no mitigating factors, and it cited a single aggravating factor, namely, that appellant had taken advantage of a position of trust to commit the offense (Cal. Rules of Court, rule 4.421(a)(11)). The trial court stated: “Even though that’s only a single factor, the unique circumstances of this case involve a father abusing his daughter over a long period of time. So the court is giving great weight to that factor in aggravation.”
In relying on this factor, the trial court contravened Blakely and Cunningham. An abuse of trust is not an element of the continuous sexual abuse, as defined in section 288.5, subdivision (a), and thus the trial court resolved factual issues not submitted to the jury when it identified this aggravating factor. (See People v. Burbine (2003) 106 Cal.App.4th 1250, 1262-1263.) Moreover, an abuse of trust falls outside the “prior conviction” exception in Apprendi.
The remaining question concerns the prejudice from this error, which is subject to analysis under Chapman v. California (1967) 386 U.S. 18, 22-24. (Washington v. Recuenco (2006) ___ U.S. ___, ____ [126 S.Ct. 2546, 2553].) As our Supreme Court recently explained in People v. Sandoval (2007) 41 Cal.4th 825, 839, “if 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.”
In our view, there is no reasonable doubt that a jury would have found that appellant occupied a position of trust with respect to M. A person occupies a position of trust regarding a child if he cultivates a relationship of confidence, and is not required to be “a parent, relative, quasi-parent, volunteer or authorized baby-sitter, religious figure, or day care provider.” (People v. Dancer (1996) 45 Cal.App.4th 1677, 1694-1695, disapproved on another ground in People v. Hammon (1997) 15 Cal.4th 1117, 1123.) Here, the record unequivocally establishes that appellant began living with M. when she was seven years old, and thereafter acted as her father. Accordingly, the error was not prejudicial.
In so concluding, we reject our prior determination that Chapman analysis is inappropriate under the circumstances of this case. In our original opinion in this appeal, we noted that appellant made remarks to Detective Romero suggesting that he doubted whether he was M.’s biological father, and reasoned that Chapman analysis is inapplicable when the error “prevent[s] defendant from presenting evidence concerning a contested element of the crime” (People v. Flood (1998) 18 Cal.4th 470, 503). Because biological paternity is inessential to a position of trust, we now conclude that appellant’s doubts about his paternity do not displace the Chapman test. In sum, the error here is harmless beyond a reasonable doubt.
During appellant’s interview with Romero, appellant initially stated that M. was his daughter. However, when Romero told him that M. had said that he had sexual relations with her, appellant responded: “That’s what she says . . . [interruptions by Romero] . . . if she is really my daughter.” (Italics added.) Sometime later, the following exchange occurred:
2. Consecutive Sentences
We also conclude that appellant’s contention regarding the consecutive sentences fails under Black I and Black II. As the court explained in Black II, Cunningham did not address the holding in Black I that Blakely is inapplicable to California’s statutory scheme regarding consecutive sentencing, and nothing in Cunningham otherwise disturbs that holding. (Black II, supra, 41 Cal.4th at pp. 820-822.) We follow our Supreme Court on this matter. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455).
DISPOSITION
The judgment is affirmed.
We concur: EPSTEIN, P. J., SUZUKAWA, J.
“[Appellant]: I even feel like dying.
“[Romero]: Do you know that if you die you are going to cause your family a lot of harm? Because you are still their father.
“[Appellant]: Yes, but I mean . . . I am . . . I found repentance in the scriptures and . . . . And [unintelligible] repentance is death. Perhaps not physically but . . .
“[Romero]: Mentally?
“[Appellant]: [Unintelligible]. Because I am not [unintelligible]’s father.
“[Romero]: Hmm.
“[Appellant]: Because [unintelligible] Mary’s [sic] father is Jesus.” (Italics added.)
Romero did not press for clarification of these remarks, and the interview does not establish whether they conveyed a denial of paternity or something else, for example, a religious sentiment.