P. v. Cole

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Filed 12/19/06 P. v. Cole CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
THE PEOPLE,
Plaintiff and Respondent,
v.
JEFFREY MARK COLE,
Defendant and Appellant.
C049298
(Super. Ct. No.
04F01186)
OPINION ON REHEARING
Defendant Jeffrey Mark Cole appeals from the judgment after
a second jury found him guilty of three counts of lewd and
lascivious conduct on a child under the age of 14 years. The
court sentenced him to an aggregate prison term of 12 years.
On appeal, he contends the trial court erred by allowing
evidence that defendant admitted possessing methamphetamine for
sale and using drugs at his first trial because it made him
“forget,” counsel was ineffective for failing to make timely and

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specific objections to that evidence, imposition of the
aggravated term on count four and two consecutive sentences on
counts five and six violated his right to a jury trial under
Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403]
(hereafter Blakely), and the evidence is insufficient to support
imposition of consecutive sentences. In a supplemental brief,
defendant contends the amended abstract of judgment incorrectly
states that he was sentenced pursuant to the two strikes law and
asks that it be amended to correct a clerical error.
We agree with defendant as to the error and shall order the
trial court to modify the amended abstract of judgment
accordingly. As modified, we shall affirm the judgment and
sentence.
FACTUAL BACKGROUND
A. The Prosecution’s Case
Miles, the victim in this case, was born in May 1990. He
lived with his mother Denise, his father Lloyd, and his younger
brother Dylan. Lloyd worked as a heavy equipment operator with
defendant who came over on weekends to socialize with the
family. Defendant was nice to Miles and Dylan and brought them
gifts. Denise and Lloyd separated in 1999. Lloyd previously
had been diagnosed with cirrhosis of the liver and died in 2002.
Denise had a good relationship with defendant and
considered him a trusted friend. On April 22, 2003, she and her
two sons moved into a house with defendant in Antelope,
Sacramento County. On one occasion while the foursome were

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living in that house, Miles and defendant were watching a movie.
They were sitting on the couch under a blanket and defendant’s
legs were draped over Miles’ lap. Miles’ hands were on the
outside of the blanket and he accidentally touched defendant’s
penis. Miles was embarrassed, but defendant began rubbing
Miles’ penis under the blanket. Although Miles was “shocked,”
he did not say anything to defendant.
After a short while, it became apparent the living
arrangement did not work, so in July, Denise moved to a separate
apartment with her two sons and defendant moved into his own
apartment although he continued to call Denise’s apartment.
One weekend while Miles was 13 years-old, defendant came to
visit his family and Miles asked if he could go to defendant’s
apartment. Defendant often bought Dylan clothes and compact
discs (CD) and Miles was hoping defendant would buy him a CD or
a shirt, but when they went to Target, defendant only bought him
snack food and drinks before going to his apartment.
After watching television and eating, Miles decided to go
swimming, so he and defendant went to the pool and sat in the
hot tub. Afterwards, they went back to defendant’s apartment
and Miles changed his clothes and put on boxer shorts, pajama
bottoms, and a t-shirt. Defendant also changed, wearing only
shorts. They ordered a pay-per-view movie and began watching
the movie, each one sitting on a different couch. About five
minutes later, after Miles had moved to the floor, defendant

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moved beside him, pushed Miles’ pajama bottoms and boxers down
and orally copulated him. Miles was shocked and scared.
During this first incident, Miles and defendant also laid
together, facing each other so that their chests and penises
were touching. Miles was moving back and forth partially by the
motion of defendant’s hands and partially by his own effort.
Miles also touched defendant’s penis with his hands and his
mouth.
Afterwards, Miles went into the bathroom and then returned
to the living room where he laid down on one of the couches.
When defendant returned to the room, Miles pretended to be
asleep, but defendant shook his shoulder and asked him if he was
awake. Defendant sat on the floor and urged Miles to get down
on the floor with him and began rubbing Miles’ knee until Miles
eventually moved to the floor.
At some point, Miles realized he had no clothes on and that
defendant was wearing only his underwear. Miles sat on
defendant’s chest and defendant put his mouth on Miles’ penis
again. Touching Miles’ bottom and hips, defendant moved Miles
back and forth until Miles ejaculated.
Afterwards, Miles dressed himself and things appeared to be
normal as if nothing had happened, although Miles was in shock
and began to “freak[] out.” He asked to go home because he did
not feel good but defendant told him it was too late, so Miles
asked if they could go for a drive. While driving, defendant
told Miles that what happened never had to happen again. Miles

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asked him if he had ever done that to anyone else and defendant
told him no. They returned to the apartment and defendant went
to sleep in his bedroom and Miles stayed on the couch unable to
sleep.
The next morning, Miles and defendant had breakfast and
played a video game. Later, defendant took Miles to Target
where he bought him a CD and three shirts. This time, Miles
felt wrong about taking things from defendant and blamed himself
for what happened. He wanted to die.
The following day, Miles spoke to Anne Lyons, a school
counselor who he trusted, and told her what defendant had done
to him.
Sergeant Bielcik of the Sacramento County Sheriff’s
Department interviewed defendant five times from December 9
through December 19, 2003. He denied molesting Miles in the
first interview. However, during the fourth interview, he
admitted that on September 27, 2003, Miles spent the night at
his apartment and that when he woke up on the living room couch,
Miles was orally copulating him. He told Miles not to do it
again and later he saw Miles masturbating. Defendant was
reluctant to relate this to Bielcik in prior interviews because
he “didn’t think this thing was going to go this far.”
B. The Defense
Defendant, who was 40 years of age at the time of the
trial, took the stand and denied ever molesting Miles or any
other child. He testified that he had been married for two

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years and had been in the navy. He was a good friend of Miles’
father and promised him that he would look after his sons. As a
result, defendant took the boys out of a gun and drug infested
environment, gave them a home with a room of their own, and
tried to look after them. Many of defendant’s friends and
relatives testified that he was generous with their children.
The night of September 27, 2003, when Miles asked to spend
the night at defendant’s apartment, they used the hot tub, Miles
swam in the pool, and then they watched a movie he had rented,
during which defendant fell asleep. When he awoke, his shorts
were down and Miles was orally copulating him. Defendant jumped
up, expressed shock, excused himself, went into the bathroom,
and then went to his bedroom. A short time later, Miles entered
his bedroom and asked to go for a drive. He did not want to go
home but the situation was awkward. When they returned from the
drive, defendant went back to bed but woke up a couple of hours
later and heard the television in the living room. He got up to
turn it off and saw Miles sitting on the floor masturbating.
C. Procedure
Defendant was charged with 14 counts of lewd and lascivious
acts on a minor under the age of 14 years. (§ 288, subd. (a).)
Counts one through six were alleged in connection with Miles,
counts seven to fourteen were alleged in connection with his
younger brother, Dylan.
Defendant was first tried by a jury that deadlocked during
deliberations and a mistrial was declared. At a second trial,

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the jury found defendant guilty of counts four, five and six and
not guilty of the remaining 11 counts. The trial court
sentenced him to an aggregate prison term of 12 years by
imposing the upper term of eight years on count four and two-
year consecutive terms on both counts five and six.
DISCUSSION
I.
Prior Conviction
Defendant contends his Sixth Amendment right to a jury
trial and his Fourteenth Amendment right to due process were
violated when the trial court admitted impeachment evidence that
defendant possessed methamphetamine for sale. Because he was
only convicted of simple possession of that drug, he argues that
the proffered evidence turned a drug possession conviction into
a crime of moral turpitude by going behind the least adjudicated
elements of the conviction. Respondent contends the evidence
was properly admitted as a crime of moral turpitude to impeach
defendant’s character for honesty and veracity (Cal. Const.,
art. I, § 28, subd. (d); Evid. Code, § 786) and that the error
if any was harmless. We find the evidence was properly
admitted.
A. Background
The prosecution filed an limine motion to impeach defendant
with evidence of two acts of moral turpitude. The first was
evidence of a 1992 conviction for petty theft. The second was
evidence defendant told a narcotics detective that on April 14,

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1994, he possessed one-eighth ounce of methamphetamine with
intent to sell it.
Defense counsel objected to the proffered evidence on the
grounds both offenses were remote and improper character
evidence. The trial court ruled that both offenses were
admissible to impeach defendant’s credibility if he testified.
When defendant took the stand, he admitted that he had been
arrested twice, first in 1993 for petty theft and again in 1994
for possessing methamphetamine with intent to sell. As to the
latter offense, he pled guilty to possession of methamphetamine.
He was also cross-examined by the prosecution about these two
offenses.
B. Analysis
On appeal, we review the trial court’s ruling on the
admissibility of uncharged misconduct under the deferential
abuse of discretion standard. (People v. Alvarez (1996) 14
Cal.4th 155, 201.)
Defendant first argues that although he was arrested for
possessing methamphetamine for sale, he was only convicted of
simple possession and that by granting the prosecution’s motion
to impeach him with the greater offense, the trial court
improperly went beyond the least adjudicated elements of his
conviction. Defense counsel failed to preserve this claim of
error by failing to make a timely and specific objection on this
ground. (People v. Wheeler (1992) 4 Cal.4th 284, 300 (Wheeler),
superseded by statute on other grounds.)

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Nevertheless, to forestall defendant’s claim of ineffective
assistance of counsel, we shall address the merits of his
argument and conclude that admission of evidence of his prior
misconduct, whether or not it resulted in a conviction, was
admissible to impeach his credibility.
Evidence Code section 788 authorizes the use of a prior
felony conviction to attack the credibility of a witness. In a
line of cases beginning with People v. Antick (1975) 15 Cal.3d
79, the Supreme Court carefully limited the trial court’s
discretion to admit such evidence. (See People v. Castro (1985)
38 Cal.3d 301, 307-308 (Castro).) However, in June 1982, the
voters adopted article I, section 28 of the California
Constitution (section 28) as an initiative measure.
Subdivision (f) of section 28 provides that “[any prior
felony conviction of any person in any criminal proceeding . . .
shall subsequently be used without limitation for purposes of
impeachment . . . .” In addition, subdivision (d) of section 28
provides in relevant part that “relevant evidence shall not be
excluded in any criminal proceeding . . . . Nothing in this
section shall affect any existing statutory rule of evidence
relating to privilege or hearsay, or Evidence Code, Sections
352, 782, or 1103. . . .”
Harmonizing these two subdivisions, the court in Castro,
supra, 38 Cal.3d 301, held that section 28, subdivision (f) did
not abolish the trial court’s discretion under Evidence Code
section 352 with respect to felony-impeachment. (Castro, supra,

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38 Cal.3d at p. 313.) Moreover, due process requires that the
felony conviction bear a rational relation to the witness’s
readiness to lie. This is shown when the felony involves moral
turpitude, which the court equated with a “‘readiness to do
evil.’” (Id. at pp. 314-215.) The court held that to determine
the presence of moral turpitude, the trial court may look only
to the “least adjudicated elements of the conviction . . . .”
(Id. at p. 317.)
However, section 28, subdivision (f) does not limit
impeachment by conduct to prior felony convictions. (Wheeler,
supra, 4 Cal.4th at pp. 292-294 [holding a misdemeanor
conviction admissible to impeach defendant where the conduct
involved moral turpitude].) “[S]ection 28(d) makes immoral
conduct admissible for impeachment whether or not it produced
any conviction, felony or misdemeanor. . . . Thus, impeaching
misconduct now may, and sometimes must, be proven by direct
evidence of the acts committed.” (Id. at p. 297, fn. 7.)
The initial test for determining the admissibility of any
past misconduct for impeachment purposes is the requirement of
moral turpitude. Beyond that, “the latitude section 352 allows
for exclusion of impeachment evidence in individual cases is
broad.” (Wheeler, supra, 4 Cal.4th at p. 296.) In exercising
that discretion, the trial court may look to those factors
traditionally deemed pertinent in this area. (Ibid.; see People
v. Beagle (1972) 6 Cal.3d 441, 453-454.) Those factors include
(1) the extent to which the prior conviction reflects on

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dishonesty, (2) the nearness or remoteness of the prior
conviction, (3) whether the prior conviction is for the same or
similar conduct for which the accused is on trial, and (4)
whether defendant refrained from testifying. (People v. Beagle,
supra, 6 Cal.3d at p. 453.)
The court in Wheeler cautioned however, that “impeachment
evidence other than felony convictions entails problems of
proof, unfair surprise, and moral turpitude evaluation which
felony convictions do not present. Hence, courts may and should
consider with particular care whether the admission of such
evidence might involve undue time, confusion, or prejudice which
outweighs its probative value.” (Wheeler, supra, 4 Cal.4th at
pp. 296-297, fn. omitted.)
In People v. Lepolo (1997) 55 Cal.App.4th 85, the court
rejected the claim raised by defendant herein, that the trial
court is limited to the least adjudicated elements of a prior
uncharged offense when determining the admissibility of that
offense to impeach the defendant’s credibility. Relying on
Wheeler, the court in Lepolo recognized that “[w]hen the fact
that a defendant has suffered a prior conviction is used to
impeach, anything beyond the least adjudicated elements may not
be examined because problems of proof (and the confusion
resulting therefrom) and unfair surprise do not exist.” (Id. at
p. 89.) However, when the question is whether to admit evidence
of past misconduct, which did not result in a conviction, the
sole test to be applied is whether “that conduct evinces moral

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turpitude.” (Id. at p. 90; see also People v. Ayala (2000) 23
Cal.4th 225, 273 [evidence that a witness admitted he lied is
admissible to impeach him].)
Here the trial court ruled that possession of
methamphetamine for sale was admissible to impeach defendant’s
credibility. Unlike simple possession of a controlled
substance, which does not involve moral turpitude, possession of
a controlled substance for sale involves moral turpitude because
it demonstrates the intent to corrupt others. (Castro, supra,
38 Cal.3d at p. 317.) The evidence that defendant possessed
methamphetamine for sale was therefore relevant on the question
of his veracity and was admissible to impeach him. (Ibid.)
Nor do we find the trial court abused its discretion under
Evidence Code section 352, which authorizes the trial court to
exclude evidence “if its probative value is substantially
outweighed by the probability that its admission will . . .
create substantial danger of undue prejudice, of confusing the
issues, or of misleading the jury.” As stated, in making its
discretionary decision to admit or exclude a prior conviction
for impeachment purposes, the trial court is guided by the
factors set forth in People v. Beagle, supra, 6 Cal.3d 441.
(People v. Clair (1992) 2 Cal.4th 629, 654.)
The first, third, and fourth factors clearly weigh in favor
of admitting the evidence. As we have found, possessing a
controlled substance for sale involves a crime of moral
turpitude and therefore reflects on defendant’s veracity

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(Castro, supra, 38 Cal.3d at p. 317), the prior misconduct was
not similar to the charged offenses and there was no evidence
defendant used drugs during the commission of the charged
offenses. Moreover, the trial court’s ruling did not dissuade
defendant from testifying. As to the factor of remoteness,
while the misconduct occurred nine years before the charged
offenses, we cannot say as a matter of law that nine years is
too remote where the other factors weigh in favor of admission.
(See People v. Carpenter (1999) 21 Cal.4th 1016, 1055-1056
[upholding admission of two 17-year-old convictions]; People v.
Benton (1979) 100 Cal.App.3d 92, 97 [upholding admission of a
conviction at least 11 years old].)
Defendant argues he was prejudiced because the misconduct
did not result in a criminal conviction and therefore the jury
was tempted to exact punishment for a prior uncharged crime.
We disagree.
Although defendant was not convicted of possession for
sale, the jury was informed that he was convicted of felony
possession of methamphetamine for that offense. Thus, the
possibility of jury confusion or temptation to punish defendant
for an uncharged crime was eliminated.
Moreover, defendant was also subject to impeachment with
his prior conviction for petty theft and he does not argue that
this offense was improperly admitted. Any question as to
whether the evidence in fact resulted in prejudice is dispelled
by the jury’s verdict. Although credibility was a key issue in

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this case, the jury convicted defendant of only three of the
charged offenses while acquitting him of the remaining 11
charges involving Miles and Dylan, thereby demonstrating that it
was able to fairly and objectively consider the evidence without
being unduly prejudiced by defendant’s prior act of misconduct.
(People v. Watson (1956) 46 Cal.2d 818, 835.) Accordingly, we
find the trial court did not abuse its discretion in ruling the
evidence admissible.
II.
Admission of Defendant’s Statement
He Used Methamphetamine to Forget
Defendant contends the trial court abused its discretion by
admitting his statement that he used methamphetamine during the
first trial to “forget.” He argues that this statement was
prejudicial and requires reversal. Respondent contends the
statement was properly admitted to prove a consciousness of
guilt and as a crime of moral turpitude to impeach his veracity.
We agree with defendant that the evidence was not particularly
relevant to show either a consciousness of guilt or moral
turpitude. However we find under all the circumstances the
error was not prejudicial.
A. Background
The prosecutor moved in limine to admit evidence that
defendant told his sister during a jail house visit, that he
used “crank” during the prior trial because it “makes me

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forget.”1 The record shows that defendant made the statement
during a tape-recorded conversation with his sister in which he
told her that his attorney had asked him whether “I was on crank
when I was going thru that trial.” Defendant then told his
sister that he told counsel he was using the drug because it
“makes me forget.” Defendant advised his sister that counsel
told him “that’s part of the reason we didn’t do well” and that
“my testimony didn’t do very well.” As part of the same
conversation with his sister, defendant further told his sister
that the reason he didn’t do well at the first trial was because
he was not getting much sleep and was tired but “I wasn’t high
when I went into the court room.”
At the hearing, the prosecutor argued that the statement
was relevant to defendant’s credibility and to show a
consciousness of guilt on the theory defendant was trying to
forget what he did to the boys in 2003. The defense argued the
statement was not relevant because it could be interpreted a
number of ways, including that defendant wanted to forget the
strain of trial. The court took the matter under submission,
indicating it may be too prejudicial under Evidence Code section
352.
1 The motion states “Admit the statement made by Defendant
COLE to his sister, Brenda Brocker, during a jail social visit,
on November 12, 2004, admitting his use of ‘crank’
(methamphetamine) during the prior trial because the ‘crank’
‘makes me forget’. . . .”

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The issue was raised again at trial, when the prosecutor
argued that defendant’s statement to his sister was relevant to
his credibility as well as to his ability to perceive and
recollect the events he testified about at the first trial. The
defense argued the evidence was irrelevant on the question of
his veracity because it only showed possession and use of a
drug, which does not involve moral turpitude and was irrelevant
on the question of his ability to perceive and recollect because
there was no evidence he used the drug during the day while the
trial was going on. The prosecutor advised the court she was
not seeking to impeach defendant with the statement under a
theory of moral turpitude.
The trial court admitted the evidence finding it was
relevant to show defendant was using the drug “at the time or
during the time in which he testified during the former court
proceeding . . . [b]ecause what his state of mind would be at
the time he testified would be of relevance.” The court limited
the prosecutor to the question whether defendant used
methamphetamine when he testified during a prior court
proceeding.
On cross-examination, defendant testified that he used
methamphetamine during the time of the court proceeding but
that he did not use it the day he testified. On rebuttal,
defendant testified that when he said he took methamphetamine so
it would “make [him] forget,” he was referring to “forgetting
. . . [about] the horrible charges that were being made against

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[him] and what was being done,” in prosecuting him. He was
trying to forget the experience of being prosecuted for things
he never did and being cross-examined in front of family and
friends.
Despite the prosecutor’s advisement to the court, she
argued to the jury that defendant’s use of methamphetamine
during the trial to make him forget together with his 1994
statement that he possessed methamphetamine to sell shows he had
low moral character and was dishonest.
B. Analysis
“No evidence is admissible except relevant evidence.”
(Evid. Code, § 350.) “‘Relevant evidence’ means evidence,
including evidence relevant to the credibility of a witness or
hearsay declarant, having any tendency in reason to prove or
disprove any disputed fact that is of consequence to the
determination of the action.” (Evid. Code, § 210.) Evidence
that leads only to speculative inferences is irrelevant.
(People v. Kraft (2000) 23 Cal.4th 978, 1035.)
The evidence had little probative value. Defendant’s
ability to recollect and perceive at the first trial had no
bearing on his ability to do so at the second trial. Nor was it
particularly probative to show a consciousness of guilt. The
relevancy of defendant’s statement depends on the strength of
the inference raised by his statement, which turns on whether he
was under the influence of the drug when he testified. However,
as the record shows, he told his sister that counsel had asked

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him whether “I was on crank when [he] was going thru that
trial,” but qualified his statement by stating that “I wasn’t
high when I went into the court room.”
We find this evidence has weak probative value and is
ambiguous at best. Nevertheless, we need not decide whether the
trial court abused its discretion by admitting the evidence
because we find any error was harmless. (People v. Watson,
supra, 46 Cal.2d at p. 818.) For the same reason the evidence
had minimal probative value, it also had little prejudicial
impact. Moreover, defendant clearly testified at the second
trial that he did not use methamphetamine the day he testified
at the first trial and provided an innocent explanation for his
statement “it makes me forget.”
Furthermore, as discussed in Part I, defendant was properly
impeached with two prior acts of misconduct, including a prior
conviction for petty theft. Defendant also spoke to the
investigating officer four times before admitting that he had
sexual contact with Miles, and then came up with the implausible
story that Miles initiated the contact while defendant was
sleeping. Despite this evidence, the jury only found defendant
guilty of three of fourteen counts of child molestations. The
jury’s verdict clearly demonstrates that it was able to
objectively evaluate the evidence and was not prejudiced by the
challenged statement. Accordingly, we reject defendant’s claim
of reversible error.

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III.
Sentencing
As stated, the trial court imposed the upper term of eight
years on count four and consecutive terms on counts five and
six. Prior to imposing sentence, the court gave three basic
reasons for selecting the upper term and consecutive sentences,
namely that defendant took advantage of a position of trust and
confidence, his past record, which included a conviction for
petty theft and a drug related offense, and the “violations that
occurred.”
A. Apprendi/Blakely
Defendant contends the trial court violated his right to
due process and a jury trial under Blakely, supra, 542 U.S. 296
[159 L.Ed.2d 403], and Apprendi v. United States (2000) 530 U.S.
466 [147 L.Ed.2d 435](Apprendi) by imposing an upper term and
two consecutive sentences based on facts not found by the jury
or admitted by him. Respondent argues this claim has no merit
and is disposed of by People v. Black (2005) 35 Cal.4th 1238.
We agree with respondent.
In Apprendi, supra, 530 U.S. 466 [147 L.Ed.2d 435], 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], italics added.)

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In Blakely, the Supreme Court applied the rule of Apprendi
to invalidate a state court sentence imposed on a defendant who
pled guilty to kidnapping his estranged wife. The high court
explained that “the ‘statutory maximum’ for Apprendi purposes is
the maximum sentence a judge may impose solely on the basis of
the facts reflected in the jury verdict or admitted by the
defendant.” (Blakely, supra, 542 U.S. at p. 303 [159 L.Ed.2d
at p. 413.) Stated another way, “the relevant ‘statutory
maximum’ is . . . the maximum he [or she] may impose without
any additional findings. When a judge inflicts punishment that
the jury’s verdict alone does not allow, the jury has not found
all the facts ‘which the law makes essential to the punishment
. . . .’” (Id. at p. 303-304 [at pp. 413-414], italics
omitted.)
In People v. Black, supra, 35 Cal.4th at page 1244, the
California Supreme Court held that under the principles set
forth in Apprendi and Blakely, “the judicial factfinding that
occurs when a judge exercises discretion to impose an upper term
sentence or consecutive terms under California law does not
implicate a defendant’s Sixth Amendment right to a jury trial.”
This holding is binding on us. We are bound by this decision.
(Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450,
455.)
The trial court’s reliance on defendant’s prior convictions
does not implicate Apprendi and Blakely and its consideration of
the fact defendant took advantage of a position of trust and

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confidence does not violate Apprendi and Blakely for the reasons
stated in People v. Black, supra, 35 Cal.4th at page 1244.
Accordingly, we reject defendant’s claim.
B. Consecutive Sentences
Defendant also contends imposition of consecutive sentences
violates his state and federal right to due process because the
trial court predicated its sentencing choice on its implicit
finding the crimes involved separate acts of violence and the
evidence is insufficient to support that finding. Respondent
argues defendant has forfeited this claim and that it has no
merit because the record supports imposition of consecutive
sentences.
Although we differ in our analysis, we agree with
respondent’s conclusion and find the record supports imposition
of consecutive sentences.
After hearing argument from counsel and before imposing
sentence, the Court stated as follows: “I sat through the whole
trial myself, as the judge in the matter. And it’s my opinion
that these offenses did take place . . . . [¶] . . . [¶] But
whatever the problem, it’s my opinion that the three counts in
which the jury found the defendant guilty that he was in fact
guilty of those counts. . . . [¶] But I do think that the
defendant in this case did take advantage of a position of trust
and confidence with these boys -- or with this boy in which he
was found guilty of violating. [¶] And based on basically his
past conduct and . . . or record, which is minimal -- it’s a

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theft related offense and a drug related offense, and based on
the position that he had with these boys and the . . .
violations that occurred, it’s going to be the order of this
Court that as to Count Four, the defendant will be committed to
the state prison for the upper term of 8 years. [¶] As to Count
Five, it will be ordered that the defendant will be committed to
the state prison for one-third of the mid term, which will be 2
years, to run consecutive with Count Four. [¶] As to Count Six,
it will be ordered that the defendant be committed to the state
prison for one-third the mid term, of 2 years, to run
consecutive with the other two counts.” (Italics added.)
While defendant contends the evidence fails to support the
implied finding the crimes involved separate acts of violence,
he ignores the trial court’s stated reasons, which are supported
by the record and he does not claim otherwise.
A single valid factor is sufficient to justify a sentencing
choice, whether it is an aggravated term of imprisonment or a
consecutive sentence. (People v. Dancer (1996) 45 Cal.App.4th
1677, 1695-1696, overruled on other grounds in People v. Hammon
(1997) 15 Cal.4th 1117, 1123.) “Moreover, the same factor can
support numerous consecutive sentences and a single proper
statement of reasons will support them.” (People v. Dancer,
supra, 45 Cal.App.4th at p. 1696.)
Criteria justifying imposition of consecutive sentences
include, inter alia, the crimes involved separate acts of
violence or threats of violence (Cal. Rules of Court, rule

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4.425, subd. (a)(2)), they were committed at different times
rather than being committed so closely in time and place as to
indicate a single period of aberrant behavior (rule 4.425, subd.
(a)(1)) and any circumstance in aggravation. (Rule 4.425, subd.
(b).)
Circumstances in aggravation include, inter alia, taking
advantage of a position of trust or confidence to commit the
offense (Cal. Rules of Court, rule 4.421, subd. (a)(11); see
People v. Dancer, supra, 45 Cal.App.4th at p. 1695 [defendant
cultivated a trusting relationship with victim, played with her
and then molested her]), a record of prior convictions as an
adult that are of increasing seriousness. (Rule 4.421, subd.
(b)(2).)
While the probation report indicates the offenses involved
separate acts of violence, the record does not support that
finding nor did the trial court make such a finding.
Nevertheless, the record supports the trial court’s implied
finding the offenses were committed at different times and that
defendant’s offenses are of increasing seriousness.
The three offenses were committed during two separate
incidents. During the first incident alleged as counts four and
five, defendant fondled Miles’ penis and orally copulated him.
During this incident, the two also laid together so that their
chests and penises were touching and Miles orally copulated
defendant. Afterwards, Miles went into the bathroom and
returned to the couch where he feigned sleep. Undeterred,

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defendant shook him and initiated a second incident, alleged as
count six, in which he fondled Miles’ penis and then orally
copulated him while Miles sat on his chest.2
The record also supports the finding that defendant’s prior
criminal record is of increasing seriousness, beginning with a
petty theft, moving to a drug related offense the following
year, and then increasing to child molestation. These two
factors adequately support imposition of consecutive sentences.3
C. Correction of Amended Abstract of Judgment
In a supplemental opening brief, defendant contends the
amended abstract of judgment should be corrected because it
erroneously states he was sentenced pursuant to the two strikes
law. (Pen. Code, § 667, subds. (b) - (i) or § 1170.12.)
Respondent concedes the amended abstract should be modified to
correct a clerical error.
We agree with the parties. The information did not allege
any prior convictions and defendant was not sentenced pursuant
to the two strikes law. We shall therefore order that the
2 The prosecutor argued that count four occurred when
defendant orally copulated Miles while he was on the floor,
count five occurred when Miles and defendant were lying on the
floor chest-to-chest and privates-to-privates, and count six
occurred during the subsequent incident when Miles sat on
defendant’s chest and defendant orally copulated him again.
3 Defendant makes no claim the stated factors are inadequate
to support an upper term and two consecutive terms.

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amended abstract of judgment be further amended to correct the
error.
DISPOSITION
The trial court is directed to send an amended abstract of
judgment to the Department of Corrections and Rehabilitation
reflecting that defendant was not sentenced pursuant to the two
strikes law. As modified, the judgment is affirmed.
BLEASE , Acting P. J.
We concur:
RAYE , J.
CANTIL-SAKAUYE , J.

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