Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Napa County Super. Ct. No. CR109693.
Margulies, J.
This case is before us for the fourth time as the appellate courts grapple with the legal issues raised by the application of Blakely v. Washington (2004) 542 U.S. 296 (Blakely) to defendants sentenced under California’s pre-2007 determinate sentencing law (DSL).
A jury convicted defendant Darryeal Woodrow Wilson of four counts of committing lewd acts with his six-year-old niece. The sole issue raised in defendant’s original appeal was whether the trial court abused its discretion in admitting a videotaped police interview of the niece. We found that the evidence was properly admitted, and affirmed the judgment. We subsequently granted defendant’s petition for rehearing to consider the impact of the decision in Blakely on defendant’s sentence. In a nonpublished opinion, People v. Wilson (Nov. 24, 2004, A102205) (Wilson I), we concluded that the principal, upper term sentence of eight years imposed upon defendant for his conviction in count one must be vacated, and the matter returned to the trial court for resentencing. In all other respects, we affirmed the judgment.
The California Supreme Court granted review, and then retransferred this matter to us with directions to vacate our decision and reconsider the cause in light of People v. Black (2005) 35 Cal.4th 1238 (Black). In a nonpublished opinion, we vacated our decision of November 24, 2004, and affirmed defendant’s conviction and sentence. (People v. Wilson (Oct. 6, 2005, A102205) (Wilson II).) Following the denial of his petition for review to the California Supreme Court, defendant petitioned for certiorari to the United States Supreme Court. On February 26, 2007, the United States Supreme Court issued an order granting certiorari, vacating the judgment, and remanding this case to us for further consideration in light of Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham).
Pursuant to this mandate, in a nonpublished opinion issued on June 1, 2007, we reverted to our conclusion on November 24, 2004 that the principal, upper term sentence of eight years imposed upon defendant had to be vacated, and the matter returned to the trial court for resentencing. (People v. Wilson (June 1, 2007, A102205) (Wilson III).)
The California Supreme Court granted the People’s petition for review of our decision in Wilson III and has now remanded the case with directions to vacate our decision in Wilson III and to reconsider the cause in light of People v. Black (2007) 41 Cal.4th 799, 819–820 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval). Applying the holdings in Black II and Sandoval to the case before us, we now affirm the trial court’s judgment in full.
Because Cunningham does not affect our disposition of defendant’s appeal from his conviction for the underlying offenses, we deem it unnecessary to modify our opinion in Wilson I in that regard, and reiterate pages 1 through 10 of that opinion in their entirety. (See City of Long Beach v. Bozek (1983) 33 Cal.3d 727, 728.)
I. DISCUSSION
At the sentencing hearing on March 28, 2003, the trial court imposed the upper term of eight years on count one, and imposed consecutive sentences of two years on each of the three remaining counts. In imposing the upper term on count one, the court explained that it was relying solely on the following two circumstances in aggravation, which it found to be true based on a preponderance of the evidence: (1) defendant “took advantage of a position of trust and confidence to commit each of these offenses” (former Cal. Rules of Court, rule 4.421(a)(11)); and (2) each of the crimes “was carried out in a fashion that would indicate planning, sophistication or professionalism.” (Former Cal. Rules of Court, rule 4.421(a)(8).)
Defendant maintains, and the People do not dispute, that under Blakely and Cunningham, the trial court committed federal constitutional error by imposing the upper term sentence on count one based on facts not found by a jury to be true beyond a reasonable doubt. The People contend that: (1) defendant waived any claim of error by failing to object that imposition of the upper term violated his jury trial right, and (2) the Blakely error was harmless in this case because the jury would have found one or both of the aggravating circumstances true beyond a reasonable doubt.
A. Waiver
In Blakely, the United States Supreme Court extended the rule articulated in Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi)—which was decided three years before defendant’s sentencing in this case—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.’ ” (Blakely, supra, 542 U.S. at p. 301.) The People argued in Wilson III that defendant waived any claim of Blakely error by failing to raise a sentencing objection under Apprendi in the trial court, notwithstanding that Blakely had not been decided until after the present appeal was filed.
The People’s waiver claim was specifically rejected in Black II, which held that “a claim of sentencing error [occurring pre-Blakely] premised upon the principles established in Blakely and Cunningham is not forfeited on appeal by counsel’s failure to object at trial.” (Black II, supra, 41 Cal.4th at p. 812.) The court applied the longstanding rule that “although challenges to procedures or to the admission of evidence normally are forfeited unless timely raised in the trial court, ‘this is not so when the pertinent law later changed so unforeseeably that it is unreasonable to expect trial counsel to have anticipated the change.’ ” (Id. at p. 810, quoting People v. Turner (1990) 50 Cal.3d 668, 703.) The court noted that “[a]t the time of defendant’s trial, no California case supported the proposition that Apprendi required a jury trial on aggravating circumstances, which, under the DSL, were to be decided by the judge.” (Black II, at p. 811.) Accordingly, the court concluded that it was unreasonable to expect trial counsel to have anticipated the “ ‘sea change’ ” in the law that occurred once Blakely and Cunningham had been decided. (Black II, at p. 812.) Black II’s reasoning applies equally to the People’s waiver argument here and compels its rejection.
B. Harmless Error
Sentencing errors under Blakely are not structural defects that demand automatic reversal, but are reviewed under the harmless error standard set forth in Chapman v. California (1967) 386 U.S. 18 (Chapman). (See Washington v. Recuenco (2006) ___ U.S. ___ [126 S.Ct. 2546, 2550, 2553]; People v. Sengpadychith (2001) 26 Cal.4th 316, 320, 324–327 [error under Apprendi governed by Chapman].) In Sandoval, our Supreme Court affirmed that the Chapman harmless error standard applies to the denial of the right to a jury trial on aggravating circumstances. (Sandoval, supra, 41 Cal.4th at p. 838.) The court held that the reviewing court must “determine whether, if the question of the existence of an aggravating circumstance or circumstances had been submitted to the jury, the jury’s verdict would have authorized the upper term sentence.” (Ibid.)
In making that determination, we note the holding in Black II that “imposition of the upper term does not infringe upon the defendant’s 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 defendant’s record of prior convictions.” (Black II, supra, 41 Cal.4th at p. 816.) It follows that “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.” (Sandoval, supra, 41 Cal.4th at p. 839.)
In this case, we conclude beyond a reasonable doubt that the jury, applying the beyond-a-reasonable-doubt standard, would have found true that defendant took advantage of a position of trust and confidence. The jury found defendant guilty of four counts of molesting his six-year-old niece, molestations that occurred during visits to his sister’s house. There was no factual dispute about the victim’s familial relationship to the defendant and no dispute about the fact that the defendant gained access to the victim through his sibling relationship with her mother. By its guilty verdict, the jury implicitly rejected defense testimony that defendant’s sister never left him alone with the victim. Thus, as a matter of logic, the defendant could not have committed the molestations with which he was charged without exploiting a position of trust and confidence. We can therefore say beyond a reasonable doubt that had the jury that found defendant guilty been asked to decide whether it was true that defendant “took advantage of a position of trust and confidence to commit each of these offenses,” it would have found such allegation true.
Because at least one of the two aggravating circumstances used to justify an upper term sentence in this case would have been found by the jury beyond a reasonable doubt, any Sixth Amendment sentencing error committed in this case was harmless beyond a reasonable doubt under Sandoval.
C. Consecutive Sentences
In Black, supra, 35 Cal.4th at pages 1261–1264, the California Supreme Court held that Blakely does not apply to the imposition of consecutive sentences under Penal Code section 669. This aspect of Black was recently reaffirmed by the California Supreme Court in Black II. (Black II, supra, 41 Cal.4th at pp. 820–823.) We therefore affirm defendant’s consecutive sentences on counts two, three, and four.
II. DISPOSITION
The judgment is affirmed.
We concur: Marchiano, P.J., Swager, J.