P. v. Stoian

Filed 6/30/08 P. v. Stoian CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

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Following a jury trial, defendant Gabriel Stoian was convicted of eight counts of lewd and lascivious conduct with the 13-year-old cousin of his wife. (Pen. Code, 288, subd. (a).)^[1] He was sentenced to an aggregate term of 18 years, arrived at as follows: six years on count one, a concurrent six years on count two and six consecutive two-year terms on the remaining six counts. On appeal, defendant claims the imposition of consecutive sentences violates Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856]. He acknowledges the California Supreme Court has rejected this argument in People v. Black (2007) 41 Cal.4th 799, 822 (Black) and that we are bound by that decision (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), but raises the issue to preserve it for federal review. We shall affirm.

STATEMENT OF FACTS

In the summer of 2002, 13-year-old I.M. came from Moldova to Sacramento and stayed with her cousin Victoria and Victorias husband, defendant. After she had been in America for about three weeks, I.M., Victoria and defendant were drinking coke and vodka and smoking cigarettes at Victoria and defendants apartment. Victoria left to take her son to defendants sisters house while defendant and I.M. remained at the apartment. Defendant kissed I.M. When Victoria returned, defendant showed Victoria what they had been doing by kissing I.M. again.

The trio continued drinking and ultimately I.M. went to sleep in the master bedroom. Defendant and Victoria came in and defendant began kissing I.M. all over, digitally penetrated her, and tried, unsuccessfully, to put his penis in her vagina. I.M. pushed him away and told him she could not do this because she was only 13 years old. Then she got up and went to the balcony of the apartment.

The next day, the trio drove to Calistoga. They all stayed in one room and were drinking vodka and champagne. Victoria went to sleep on the sofa and I.M. was laying in the bed with defendant. Defendant began kissing her and trying to take off her clothes. He orally copulated her, digitally penetrated her and put his penis in her vagina. He stopped when she said she had to use the bathroom. When she returned to the bed, she and defendant had sex. Then Victoria came to the bed and defendant had sex with her.

They returned to Sacramento and were again drinking at defendants apartment. He orally copulated I.M. and had sexual intercourse with her. Victoria was on the bed with them, kissing and touching defendant while he was having intercourse with I.M. Defendant continued to orally copulate, digitally penetrate and have sexual intercourse with I.M. about twice a week until the end of August when she returned to Moldova. The final time they had sex was about two days prior to I.M.s return to Moldova.

Defendant also had sexual intercourse with I.M. in his van. Defendant, Victoria and I.M. were returning to the apartment from a party at defendants brothers house. Victoria was driving while defendant and I.M. had sex in the back of the van.

PROCEDURAL BACKGROUND

Defendant was charged with eight counts of lewd and lascivious conduct with a child under the age of 14. ( 288, subd. (a).) Counts one and two alleged that defendant had digitally penetrated I.M. and touched his penis to I.M.s vagina at his apartment. Counts three, four and five alleged defendant digitally penetrated I.M., and twice penetrated her vagina with his penis at the hotel in Calistoga. Counts six and seven alleged defendant orally copulated I.M. and penetrated her vagina with his penis at his apartment after they returned from Calistoga. Count eight alleged defendant penetrated I.M.s vagina with his penis while in his van.

Defendant was found guilty on all eight counts. He was sentenced to an aggregate term of 18 years in state prison. Specifically, on count one defendant was sentenced to the midterm of six years. On count two, defendant was sentenced to the midterm of six years, to run concurrently with the sentence in count one. On each of the remaining counts, three through eight, defendant received a two-year term, one-third of the midterm sentence. These terms were to run consecutively, as the court found the objectives of the offenses were predominantly independent of the conduct and intent of the other counts.

DISCUSSION

Defendant contends the imposition of consecutive sentences on facts not submitted to or found true by the jury violates his Sixth Amendment right to a jury trial, as interpreted in Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435], Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] and Cunningham v. California, supra, 549 U.S. 270 [166 L.Ed.2d 856].

As defendant acknowledges, the California Supreme Court has already rejected this claim. The high courts decision in Cunningham does not call into question the conclusion we previously reached regarding consecutive sentences. The determination whether two or more sentences should be served in this manner is a sentencing decision[] made by the judge after the jury has made the factual findings necessary to subject the defendant to the statutory maximum sentence on each offense and does not implicate[] the defendants right to a jury trial on facts that are the functional equivalent of elements of an offense. [Citation.] Accordingly, we again conclude that defendants constitutional right to jury trial was not violated by the trial courts imposition of consecutive sentences on all three counts. (People v. Black, supra, 41 Cal.4th 799, 823.) Because we are bound by the law of Black (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d 450, 455) and defendant has not raised any issue not already addressed by that decision, we reject defendants contention.

DISPOSITION

The judgment is affirmed.

SIMS , J.

We concur:

SCOTLAND, P.J.

ROBIE , J.

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^[1]Undesignated statutory references are to the Penal Code.