P. v. Sindorf

1
Filed 6/18/07 P. v. Sindorf CA3
Opinion following remand from U.S. Supreme Court
NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Siskiyou)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
KURT EUGENE SINDORF,
Defendant and Appellant.
C045737
(Super. Ct. No.
YKCRBF03539)
On February 20, 2007, the United States Supreme Court
granted a petition for writ of certiorari in this case, vacated
the judgment of this court and remanded the case to us for
further consideration in light of Cunningham v. California
(2007) 549 U.S. __ [166 L.Ed.2d 856] (Cunningham). We directed
the parties to submit supplemental briefs addressing the
Cunningham issues only. Upon further consideration of the
issues, we shall remand for resentencing pursuant to Cunningham,
but otherwise affirm the judgment. We reissue our previous

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opinion as follows with a new section dealing with the
Cunningham issues.
After a court trial, defendant Kurt Eugene Sindorf was
convicted of three counts of committing a lewd and lascivious
act on a child aged 15, defendant being at least 10 years older
than the child (Pen. Code, § 288, subd. (c)(1)),1 six counts of
unlawful sexual intercourse with a minor (§ 261.5, subd. (d)),
one count of oral copulation with a minor (§ 288a, subd.
(b)(2)), and two counts of attempting to dissuade a witness.
(§ 136.1, subd. (a)(2).) Defendant was sentenced to state
prison for the upper term of four years for one of his
convictions of unlawful sexual intercourse, given consecutive
one-third of the middle term or one-year sentences for two of
his other convictions of unlawful sexual intercourse, given a
two-year consecutive term for one of his convictions of
attempting to dissuade a witness and concurrent middle terms for
the remainder of his convictions, for a total prison sentence of
eight years.
On appeal defendant contends (1) the loss of the district
attorney’s files and the resulting failure to provide the
defense with exonerating information from those files violated
defendant’s state and federal constitutional rights to due
process, to confront witnesses and to present a defense, (2) he
has been denied meaningful appellate review of the trial court’s
1 Undesignated statutory references are to the Penal Code.

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order denying his motion to compel discovery, (3) the trial
court erred in allowing the district attorney’s investigator to
render an expert opinion on the usual behavior of underage girls
who have been molested by older men with whom they are
romantically involved, (4) the circumstances underlying the
victim’s testimony were so inherently conducive to perjury and
her testimony was so inherently unreliable that her testimony
could not support the verdicts as a matter of law, and (5)
defendant’s waiver of his right to jury trial was not knowing
and intelligent because he was not informed he was giving up the
right to have factors affecting his sentence heard by a jury
pursuant to Apprendi v. New Jersey (2000) 530 U.S. 466 [147
L.Ed.2d 435] (Apprendi), Blakely v. Washington (2004) 542 U.S.
296 [159 L.Ed.2d 403] (Blakely), and Cunninghan, supra, 549 U.S.
__ [166 L.Ed.2d 856]. Defendant claims his jury trial waiver
was invalid in its entirety and that he is entitled to reversal
and a remand for a new trial.
We reject defendant’s contentions. As to the last issue,
we conclude the scope of defendant’s waiver of his right to jury
trial was limited to the trial on his guilt or innocence of the
charged offenses and did not include his right to have a jury
determine the factors relevant to the imposition of an upper
term. Therefore, his jury waiver was not invalid in its
entirety and we shall affirm the judgment of conviction, but
based on Cunningham we shall remand for resentencing.

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FACTUAL BACKGROUND
The Prosecution
C.M. was 10 years old when she first met defendant who was
one of her mother’s coworkers. She became more familiar with
defendant when she was 15 years old. Defendant often came into
the market where C.M. worked.
In September 2000, when C.M. was 15 years old, defendant,
who was 37 years old at the time, began a sexual relationship
with her. After a day of hunting with defendant and his five-
year-old son, C.M. invited them over to her house for dinner.
Her mother was not at home. After dinner, when they were
sitting on the couch watching TV and defendant’s son had fallen
asleep, defendant said, “I don’t know if I should do what I’m
about to do.” Not knowing what he was talking about, C.M.
replied, “You don’t know until you try.” Defendant reached over
and started to kiss her. Defendant reached under C.M.’s shirt
and touched her breasts over her bra. He laid her down on the
couch and continued to touch her. C.M. did not refuse him as
she had some feelings for him. They moved to her bedroom where
defendant undressed her and himself. Defendant laid C.M. down
on her bed and got on top of her. He put first his fingers,
then his penis into her vagina. After about 15 minutes of sex,
they got dressed and went back out to the living room.
Defendant did not spend the night.
The next day C.M. got an e-mail message that said:
“C[.M.]: Hi. It’s 2:45, and I just got home and built a fire

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and washed the dishes from the a.m. I am now ready for bed and
should get almost two hours of sleep. This should be plenty as
I am partially running off the ‘L’ word, too, and this is
definite boost. I had the time of my life tonight and I owe it
all to you. Good luck at the game and know my thoughts are with
you always. Love Kurt. P.S. Someone has fallen.”
Approximately a week later, C.M. had sex again with
defendant, this time at his house. Defendant again penetrated
her vagina with his fingers and penis. She spent the night with
him in his bed.
A couple of weeks later, while S., C.M.’s mother was in the
hospital, C.M. and defendant had sex again at defendant’s house.
Defendant touched her breasts and placed his fingers in her
vagina. Then they had intercourse. She spent the night in
defendant’s bed.
Around this time, defendant and C.M. went to J.C. Penney’s
where defendant bought her an engagement ring, costing $1,000,
to replace the promise ring he had earlier given her. Defendant
talked to C.M. about marriage and wanted to go to Hawaii where
it was legal to get married before she turned 18. They
discussed her current age. Defendant told C.M. not to wear the
ring in public or in front of her mother.
C.M. and defendant made another trip to Redding within a
month after defendant bought her the engagement ring. On the
way home in the car, defendant asked C.M. to give him a “blow
job” while he was driving. She told him she was uncomfortable,

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but he wanted her to do it. Defendant undid his belt, unzipped
his pants, and pulled them down. C.M. sucked on his penis for
maybe two minutes. She was really uncomfortable and stopped.
Defendant put his arm around her and said it was okay.
On another occasion, between November and December 2000,
C.M. was up by defendant’s house. Defendant’s son was sleeping
in the truck and defendant asked C.M. to go into the house with
him to have sex. Although she felt bad because defendant’s son
was sleeping in the truck, they went inside and had sex.
During November 2000 C.M., her mother S., defendant and
defendant’s son went on a trip to Canada. One evening S. was
not feeling well and wanted to stay at the motel. C.M. and
defendant drove to a restaurant for something to eat. Defendant
sat next to C.M. and they were holding hands when C.M. saw her
mom standing at the window of the restaurant watching them. S.
came into the restaurant and yelled at C.M. She demanded to
know what was going on. She wanted C.M. to walk back to the
motel and pack her stuff to go. C.M. defied her mother and
refused. Later, when they were back in their motel room, S.
threatened to “call the cops” if C.M. would not leave with her.
Defendant came to their room and told C.M. to go with S. C.M.
refused. S. called the police, who came and took C.M. and S. to
another hotel.
In December 2000, defendant sent C.M. an e-mail to an
address he had set up for her, stating: “Hi, Hon. Some may
think they are winning the war, but my love grows stronger for

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you with each passing day. Thank you for being the most
beautiful thing in my life. I love you more than words can say.
Think of me, and I will be by your side, I promise. Love
forever, Kurt.”
C.M. and defendant had a meeting spot by the elementary
school by C.M.’s house, which they referred to as “the rock.”
Defendant set it up as a place to meet and leave each other
letters. After returning from Canada, around March of 2001,
C.M. and defendant were at the rock. Defendant laid his jacket
on the ground and wanted to have sex. C.M. told him that she
did not want to. There was snow on the ground. Defendant told
her everything would be okay and just to do what he told her.
He laid her down on his jacket and they had sex even though she
told him no.
The last time C.M. had sex with defendant was in March 2001
when she was supposed to meet defendant on the hill. When he
failed to show up, she started walking home. Defendant drove up
and asked C.M. to get in his truck. C.M. got in and they had
sex.
C.M. testified there was some concern she might be pregnant
because defendant had not always used a condom. Defendant
arranged for K.M., his ex-girlfriend and the mother of
defendant’s son, to visit C.M. while she was at the College of
the Siskiyou gymnasium playing volleyball. K.M. took C.M. into
the girl’s locker room where she gave C.M. a two-way radio to
enable her to talk to defendant who was out in the parking lot.

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Defendant told C.M. to take a pregnancy test K.M. had with her,
that he loved her and everything would be okay. C.M. took the
pregnancy test, which turned out negative. K.M. took the test
stick, put it in a ziploc bag and said defendant wanted to keep
it for himself. C.M. gave inconsistent statements regarding
when this pregnancy test occurred.
When K.M. confronted defendant about being sexually
involved with C.M., defendant denied it. Defendant did tell her
at one point that he was only human and he could make mistakes.
Defendant told her C.M. tried to come on to him.
When C.M.’s mother got a restraining order against
defendant, defendant arranged for he and C.M. to meet sometimes
at K.M.’s home.
Defendant wanted C.M. to be on birth control because of
continued concerns over pregnancy. Defendant and C.M. went
together to a health clinic. Defendant was present for her
physical examination because C.M. was afraid to tell the nurse
she didn’t want him in the room. He left the room when she
changed back into her clothes. C.M. did not feel free to tell
the nurse the entire truth because of defendant’s presence. She
lied to the nurse about her sexual relationship with defendant
because defendant told her to do so.
According to C.M., she lied when she denied any sexual
relationship with defendant in early interviews with law
enforcement. She was afraid to tell the truth and she still had
some positive feelings for defendant.

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Prior to the preliminary hearing, C.M. saw defendant and
walked up to his truck. Defendant told C.M. to go to K.M.’s
house the following night as K.M. needed to talk to her. When
C.M. followed defendant’s instructions, she discovered it was
not K.M. who wanted to talk to her, but defendant. Defendant
told her if she loved him, she would not testify. Defendant
told her to think of what she would be doing to his son if she
testified.
M.H., a friend of defendant’s, came up to C.M. at the
market where C.M. worked. She showed C.M. a picture of
defendant’s son and gave her an envelope with a message from
defendant that if she loved defendant’s son and loved defendant,
she wouldn’t say anything. The preliminary hearing was coming
up. M.H. then took the items back and returned them to
defendant. Defendant told M.H. not to tell the authorities
anything if they ever asked her about delivering the envelope.
C.M. saw the numbers 381 painted on her mailbox and a
number of other places around the town. Defendant told C.M. he
was leaving those marks to show his love for her. “381” means
“three words, eight letters, one meaning - I love you.” K.M.
testified she drove defendant around town to spray paint the
numbers in various places.
C.M. found defendant’s actions a bit scary. She was
inhibited at first, but later overcame her fears to tell what
had happened.

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Patricia Morrison, public health nurse and family planning
nurse practitioner with the Siskiyou County Public Health
Department, testified defendant came into the county’s
Mt. Shasta clinic with C.M. on November 30, 2000. Defendant
said C.M. needed birth control services, that it was important
that it be confidential, and he was a very good friend of the
family. Defendant’s home phone number was provided as the means
of contacting C.M. regarding any test results. When
Ms. Morrison made it clear she was a mandated reporter and she
would be required to report if someone under the age of 16 was
having sex with someone who is 21 or older, defendant said he
was not her partner; defendant was a friend of the family.
C.M. filled out a health questionnaire indicating she had
sex on a regular basis, did not always use any method of birth
control and was concerned about getting pregnant. Defendant was
present while Ms. Morrison discussed with C.M. her responses to
the questionnaire. At C.M.’s request, defendant was present in
the exam room while Ms. Morrison conducted a breast and pelvic
exam of C.M. Defendant stood at the head of the examination
table during the exam, holding and patting C.M.’s hand and
softly talking to her. Ms. Morrison thought the contact seemed
more intimate than that of a family friend. At the end of the
examination, defendant stayed in the exam room while C.M. washed
and dressed.
Ms. Morrison called Child Protective Services and made a
report of suspected child abuse.

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Jeffrey Lierly, a special agent with the California
Department of Justice Bureau of Investigation, spoke with K.M.
regarding what she knew about defendant’s relationship with C.M.
Initially she denied knowing anything, but after she was granted
immunity by the Attorney General’s Office, she agreed to talk
with Lierly. K.M. told Lierly she accused defendant of having a
sexual relationship with C.M. and defendant responded: “All’s I
know now is I’m - and can make mistakes, too.” Defendant said
C.M. “was all over [him]” or “she came on to [him.]”
K.M. told Lierly that one night defendant came to K.M.’s
house and told her he needed her help to help a friend with a
pregnancy test. That was why K.M. was involved with C.M.’s
pregnancy test at the gym. K.M. overheard defendant and C.M.
talking on the walkie-talkies and defendant was generally saying
comforting things to C.M., who was upset. Defendant told K.M.
to deny the pregnancy test ever occurred. Defendant suggested
that if she did not deny it, she could be implicated in the
situation.
Defendant also instructed K.M. to say she was supposed to
have gone with C.M. to the health clinic. When the issue of the
engagement ring came up, defendant told K.M. to say it was her
ring. He advised K.M. to deny the existence of the note sent to
C.M. by Ms. Hobbs.
S. testified she saw C.M. and defendant together at the
restaurant in Canada. C.M. was looking defendant eye to eye and
rubbing defendant’s arm very passionately. S. became very upset

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and asked C.M. to go with her to the restaurant restroom. S.
asked her daughter what she had just seen. C.M. didn’t answer,
but looked guilty, like she had just been caught. Defendant
later asked for an opportunity to explain and told S. he was in
love with C.M. S. later called the Canadian police who helped
her relocate to a different motel for that night.
C.M. and her mother ended up driving back to California
with defendant, who kept saying he was in love with C.M., it was
better for C.M. to be with him than someone else, and kept
asking S. if she would still remain “friends” with him. She
refused to remain friends. When defendant said he had discussed
marriage with C.M., S. told him he was “a sick S.O.B.” She went
straight to the police when they arrived back home and sought a
restraining order against him. Her first attempt was
procedurally defective.
Meanwhile, defendant continued to see C.M., so S. met with
defendant to tell him to stay away. Defendant seemed
embarrassed and told her he and C.M. had made up the whole story
the night in Canada. S. angrily left. When she got home, she
got a call from defendant telling her if she took the matter to
the police, he would have her job. S. got a restraining order
against defendant in March 2001.
After their return from Canada, C.M. became angry and cold
towards S. S. took C.M. to counseling and was present when C.M.
denied any inappropriate relationship with defendant. C.M. said
she made the whole thing up to get more attention from S.

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The Defense
C.M. was recalled as a witness and admitted she had denied
any sexual encounters with defendant when interviewed by Shannon
Bowlin (an investigator with the Siskiyou County District
Attorney’s Office) prior to March 2001. She referred to
defendant as an old friend and a father figure.
C.M. said Bowlin told her child pornography, or pictures of
other girls C.M.’s age, had been found on defendant’s computer.
According to C.M., her school principal also mentioned to her
that he had seen such pictures from defendant’s computer. Both
Bowlin and the principal denied telling C.M. pornography had
been found on defendant’s computer.
The night before C.M. was admitted to Sutter Memorial
hospital in March 2001, shortly before the hearing in court
regarding the restraining order, she met with defendant at
K.M.’s house. She spent two and a half hours listening to
defendant tell her everything she needed to do, what she needed
to believe, and what she didn’t need to believe. Defendant told
her if she said anything, it would ruin everything. Defendant
told her not to believe what Bowlin was saying about him or
them.
When C.M. got out of the hospital 7 to 14 days later,
Bowlin contacted her again and C.M. decided to tell the truth of
what happened. She ended up telling Bowlin part of the truth,
but she still held back some things.

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Bowlin testified she first interviewed C.M. in January or
February 2001. During that interview, C.M. denied any
inappropriate relationship with defendant. Bowlin talked to
C.M. again in March and in May 2001.
C.M. contacted Bowlin prior to the May interview to say she
was ready to tell Bowlin about the relationship between her and
defendant. At the May interview, C.M. said defendant was in
love with her, but she looked upon him as a father figure. She
denied a sexual relationship. It was not until a meeting with
Bowlin in August 2001 that C.M. said their relationship was of a
sexual nature. In her experience, Bowlin could not think of a
time when she interviewed a victim in this kind of circumstance
where the victim immediately disclosed the relationship with the
man she was involved with. That is, in the cases where the
investigation ultimately showed there was a sexual relationship,
she could not recall one where the victim had “disclosed”
immediately.
Catherine Golden, an investigator with the Siskiyou County
District Attorney’s Office, conducted an interview with C.M. in
May 2002. C.M. admitted she was embarrassed and not truthful in
her earlier interview with Bowlin. She described various
incidents of sexual contact with defendant. Golden talked to
C.M. again in June 2002 and confronted her with discrepancies
between what she told Bowlin and what she told Golden.

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M.C., another son of K.M. and stepbrother to defendant’s
son, testified C.M. told him S. was making her say this stuff
about defendant. C.M. said the accusations were not true.
M.P., a coworker of S., said when it comes to honesty, S.
is “morally bereft.” He denied there was “bad blood” between
him and S., although he considered her the instigator of a
problem between him and another worker, which ended up in the
other worker filing sexual harassment charges against M.P.
C.A., S.’s former second line supervisor, testified S. does
not have a good reputation for truthfulness and was a
troublemaker.
Lierly, recalled for the defense, testified K.M. told him
defendant isolated her from her friends. She also did not like
the way he treated her oldest son M.C., whom defendant
considered a bad influence on defendant’s son.
Although C.M.’s mother, S., testified it was her belief a
lot of C.M.’s emotional problems were the result of her
relationship with defendant, she admitted C.M. had some history
of depression.
The principal of the high school when C.M. attended
testified defendant told him S. was mad because she wanted
something more than a friendship from defendant. Defendant
complained that, “the only information they got, they didn’t get
right.” The principal never saw any improper conduct between
defendant and C.M.

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DISCUSSION
I.
LOSS OF THE DISTRICT ATTORNEY’S FILES
A. Background
This case was investigated originally by the Siskiyou
County District Attorney’s Office (D.A.) in 2001 and 2002. The
D.A. decided not to prosecute the defendant. In March 2003, the
California Attorney General (A.G.) on behalf of the People,
decided to prosecute and filed a felony complaint against
defendant.
B. The Subpoena Duces Tecum for the D.A.’s Files
Sometime prior to trial, it is unclear when, defendant
issued a subpoena duces tecum to the D.A.’s office for their
files.2 On the first day of the court trial, November 4, 2003,
defendant brought to the court’s attention the failure of the
D.A. to respond to the subpoena duces tecum. Defendant wanted
to compare the D.A.’s files to his discovery to see if there was
further information in them relevant to the defense. The deputy
A.G. offered to make an inquiry regarding the D.A.’s position or
progress on the subpoena duces tecum.
2 The subpoena duces tecum was not included in the record on
appeal.

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On November 19, 2003, the deputy A.G. informed the trial
court of the receipt of a D.A. memo, dated November 17, 2003,
regarding the D.A.’s files.3
The matter of the subpoena for the files was raised again
before the trial court on November 24, 2003. Defendant
complained he was informed verbally the D.A. could not find its
files, but the memo received addressed the issue of only four
pages of “discovery.” Defendant wanted to know where the files
were and wanted the court to order them brought to court.
The trial court read the memo dated November 17, 2003, from
the senior legal secretary for the D.A. to the assistant D.A.
and noted it listed pages 58, 74, 86, 87, 90 and 91 as being
missing.
The deputy A.G. agreed the matter of the missing files
needed clarification. He represented to the court the A.G. had
both files of the D.A. in April 2002, that the files were copied
by the A.G. in their entirety, and defense counsel was provided
107 pages of discovery from one case file and 123 pages of
discovery from the other case file, “absent the six pages that
are noted in this memo.”
Defendant stated he took the deputy A.G. at his word that
the defense received everything the A.G. received, but the issue
was something else. Defendant referenced other subpoenas to the
D.A. and indicated he was informed the D.A. was not going to
3 The memo is not part of the record on appeal.

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prosecute based in part on the lies of the victim.4 Defendant
wanted to view the D.A.’s files to see if there was other
possibly exculpatory evidence upon which the D.A. based its
decision not to go forward. Defendant received no response to
its subpoena duces tecum and there was no memo saying the files
were missing. Defendant was confused by the memo of November
17th regarding missing pages and wondered how the legal
secretary could determine six specific pages were missing if the
entire two files were missing.
The deputy A.G. attempted to clarify the matter, indicating
he received a verbal response to the inquiry regarding
defendant’s subpoena duces tecum that both files were missing.
He requested the response be reduced to writing. And in
response, either due to a simple miscommunication or lack of
clarification, the deputy A.G. received the memo regarding the
missing pages, which were missing “all the way back to April
2002, when the files were copied.”
Defendant stated, however, the discovery he received
included a page 58, 74, 86, 87, 90 and 91, the pages supposedly
missing. It was possible he had those pages for only one of the
two files since the pagination for both files began with number
one, but he could not tell from what he had with him. The
4 Defendant’s other subpoenas and the letter apparently providing
the reasons the D.A. decided not to continue prosecution are not
part of the record on appeal. We have no way of verifying
defendant’s statements.

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deputy A.G. stated the defense had been provided everything the
deputy A.G. had except the materials withheld as privileged, as
listed in the privilege log, and the six previously listed
pages. The deputy A.G. did not know from which file the pages
were determined to be missing and the discovery provided to the
defense began with sequence one again.
The trial court asked defendant the nature of his concern
about the files, whether he thought the files contained
materials that were not provided in discovery or accounted for
by the privilege log. Defendant suggested there “might be.”
Defendant wanted the court to review the D.A. files to see if
there was any exculpatory evidence in them that was not provided
to the defense. Defendant found it “suspicious” the D.A. had
not responded to his subpoena duces tecum and now claimed the
files were missing.
The deputy A.G. responded, “suspicions aside,” this was
essentially an untimely discovery motion on discovery materials
provided over a year earlier. In addition, it was based on pure
speculation and the trial court was not the entity to review
page by page what discovery exists in the D.A.’s files and
compare it with the discovery provided by the A.G. The proper
procedure was through the discovery process of section 1054 and
not a subpoena duces tecum. If the defense was unhappy with the
informal response provided to this point, it was up to defendant
to file a formal discovery motion so the matter could be
litigated before the court.

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The trial court concluded the matter should be handled
through the criminal discovery statutes, but did want a further
response as to whether the D.A. files were available. After a
response was received, it would be up to defendant to bring
anything further to the court’s attention.
Later that day, the deputy A.G. provided an addendum memo
from the D.A. stating the two D.A. files were missing.5 Absent
further inquiry by defendant, the A.G. took the position the
discovery inquiry was satisfied. When asked by the court if he
had any comments, defense counsel replied, “no.”
Defendant did not pursue the matter further.
C. Defendant’s Contentions on Appeal
Defendant claims on appeal the loss of the D.A.’s files
violated his state and federal rights to due process, to
confront witnesses, and to present a defense.
Defendant argues the lost files were “clearly” material
evidence favorable to the defense that should have been
disclosed to the defense. Therefore, the failure to disclose
the files violates defendant’s rights under Brady v. Maryland
(1963) 373 U.S. 83 [10 L.Ed.2d 215] (Brady). Defendant also
cites Arizona v. Youngblood (1988) 488 U.S. 51, 58 [102 L.Ed.2d
28] (Youngblood), for the proposition that “the Brady rule
applies even to potentially useful evidence if the suppression
of evidence is in bad faith[,]” that is, “the prosecution is
5 The addendum memo is not part of the record on appeal.

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aware of the evidentiary value of the evidence to the defense.”
Defendant then points the court to People v. Serrato (1965) 238
Cal.App.2d 112 (Serrato) to argue fundamental notions of due
process require the prosecution to “bear the burden of lost or
destroyed evidence where the lost evidence is clearly material,
possibly exonerating and lost solely due to the action of the
state.” By analogy to the reasoning of Brady, Youngblood, and
Serrato, defendant contends reversal is required in this case.
Defendant also contends the loss of the files violates his
state due process rights under article I, sections 7 and 15 of
the California Constitution. The only cases defendant cites are
People v. Nation (1980) 26 Cal.3d 169 (Nation), and People v.
Hitch (1974) 12 Cal.3d 641, overruled on another ground in
People v. Johnson (1989) 47 Cal.3d 1194, 1234 (Hitch).
D. Analysis
Preliminarily we note the D.A.’s office initial response to
the subpoena duces tecum for the two files was a nonresponsive
memo dated November 17, 2003, regarding six missing pages of
discovery. As a result, in the trial court the discussion on
the record about the files and whether or not the defense was
missing discovery is less than clear. The trial court, the
prosecutor and the defense attorney discuss interchangeably the
alleged six missing pages and the two missing files as they
relate to the subpoena duces tecum. Later in an addendum memo
the D.A.’s office indicated the two files were missing.

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A review of the record reflects defendant was provided a
copy of the D.A.’s files by the A.G. in discovery and
acknowledges receiving everything the A.G. received from the
D.A. except the materials identified by the “privilege log” and
except, perhaps, the six pages identified by the D.A.’s November
17 memo. It is, therefore, unclear whether defendant in
alleging on appeal the violation of his constitutional rights by
the loss of the D.A.’s files is asserting the loss of the six
pages, the loss of some unknown and unpaginated material not
copied by the A.G., or the complete loss of the original files.6
The mix of authorities to which we are referred is also
confusing.
Brady held a prosecutor’s failure to disclose favorable
evidence to an accused “violates due process where the evidence
is material either to guilt or to punishment, irrespective of
the good faith or bad faith of the prosecution.” (Brady, supra,
373 U.S. at p. 87 [10 L.Ed.2d at p. 218].) To establish that
the government’s failure to turn over evidence violates Brady,
the defendant must demonstrate (1) the undisclosed evidence was
favorable, either because it was exculpatory or impeaching; (2)
6 Defendant includes in this section of his argument a complaint
regarding the trial court’s failure to retain the documents the
A.G. withheld as privileged, which the court reviewed in
connection with defendant’s motion to compel discovery. This
argument more properly relates to defendant’s second separate
claim on appeal and will be dealt with in section II of this
opinion.

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23
the evidence was suppressed by the State, either willfully or
inadvertently; and (3) the evidence was material to the defense.
(See Strickler v. Greene (1999) 527 U.S. 263, 280-281 [144
L.Ed.2d 286, 301-302]; In re Brown (1998) 17 Cal.4th 873, 879.)
The failure to preserve, or the destruction of evidence by
the prosecution, was specifically addressed in Youngblood and in
California v. Trombetta (1984) 467 U.S. 479 [81 L.Ed.2d 413]
(Trombetta). In Trombetta, the United States Supreme Court held
the government has a duty under the United States Constitution
to preserve evidence “that might be expected to play a
significant role in the [defendant’s] defense.” To meet this
standard, the evidence must “both possess an exculpatory value
that was apparent before the evidence was destroyed, and be of
such a nature that the defendant would be unable to obtain
comparable evidence by other reasonably available means.”
(Trombetta, supra, at pp. 488-489 [81 L.Ed.2d at p. 422],
fn. omitted.) In Youngblood the United States Supreme Court
added that to show a denial of federal constitutional due
process from the destruction of such evidence, the defendant
must also show that the police acted in bad faith. (Youngblood,
supra, 488 U.S. at p. 58 [102 L.Ed.2d at p. 289].) Our Supreme
Court has expressly adopted the holdings of Trombetta and
Youngblood. (People v. Frye (1998) 18 Cal.4th 894, 942-943;
People v. Zapien (1993) 4 Cal.4th 929, 964; People v. Cooper
(1991) 53 Cal.3d 771, 810-811.)

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In People v. Serrato, supra, 238 Cal.App.2d 112, the
defendant, through no fault of his own, was deprived of his
effective right of appeal by the failure of the trial court
clerk to comply with the requirements of the law for preparation
of a clerk’s transcript and reporter’s transcript for appeal.
The court held this violated the defendant’s fundamental
constitutional rights. (Id. at p. 119.) We fail to see how
this is applicable to defendant’s situation here.
Nation, supra, 26 Cal.3d 169 and Hitch, supra, 12 Cal.3d
641, involved the same issue regarding the loss or destruction
of evidence by the prosecution as Youngblood and Trombetta.
Both Nation and Hitch were premised on federal due process and
have not survived Trombetta and Youngblood. (People v. Johnson,
supra, 47 Cal.3d at p. 1234; People v. Frye, supra, 18 Cal.4th
894, 942.) Moreover, the California Supreme Court has rejected
the contention that Trombetta and Youngblood should not apply in
California as a matter of state law. (People v. Cooper, supra,
53 Cal.3d at p. 811.)
Wending our way through the authorities cited by defendant,
we conclude Trombetta and Youngblood are the most applicable to
defendant’s situation. However, we further conclude defendant
has failed to show any due process violation under those
authorities.
First, to the extent defendant is broadly complaining about
the loss of the original D.A. files copied by the A.G., there is
no showing, nor can we think of how defendant could show,

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defendant’s receipt of the copy of such files was not
“comparable evidence” satisfying defendant’s due process rights
to potentially exculpatory or relevant impeachment evidence held
by the prosecution. (Trombetta, supra, 467 U.S. at pp. 488-489
[81 L.Ed.2d at p. 422].)
Second, to the extent defendant is asserting a possible
loss or destruction of some unknown, possibly unpaginated,
material from the original files beyond the specifically
identified six pages, we find such assertion entirely
speculative. There is simply nothing in the record which
suggests the D.A. lost more than the identified missing six
pages of material, if indeed the six pages were actually lost.
It is even more speculative, bordering on imaginative, that any
such particular material was exculpatory or had impeachment
value to the defense that was apparent to the custodian of the
files when the material was lost and that no comparable evidence
was reasonably available. (See People v. Frye, supra, 18
Cal.4th at pp. 943-944.)
Finally, to the extent defendant is asserting the loss of
the six pages identified by the D.A. and A.G., we question
whether defendant has actually shown those pages are lost.
Defense counsel told the trial court he had received pages in
discovery with the same numbers as the pages the November 17
memo listed as missing. Defense counsel suggested it was
possible he had those numbered pages for only one of the two
D.A. files, but counsel could not tell from what he had with him

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26
at the time. This did not prevent counsel from later checking
his discovery materials and reporting back to the trial court
that he had only one set of such numbered pages or that his
numbering appeared to be that of the A.G., not the D.A. Counsel
never did so, perhaps because he could tell he did have the
numbered pages from both D.A. files. Furthermore, it is often
possible to determine a page is missing from copied materials
even without relying on numbered pagination because one page may
not logically follow the previous page. Defense counsel never
reported finding such a problem in the photocopied material from
the D.A.’s files. Thus, we cannot say with certainty, given the
considerable confusion in the trial court over what, if
anything, was missing, that the six pages were definitely
missing from the files photocopied for the defendant.
Even assuming the pages were lost, however, defendant has
failed to make the requisite showing for relief. It is quite
possible the six pages were negligently misplaced, left out of
the files sent to the A.G., or otherwise lost. (People v. Ochoa
(1998) 19 Cal.4th 353, 417 [negligent failure to preserve
evidence does not violate due process].) There is nothing in
the record to support defendant’s speculation that these
specific six pages had apparent exculpatory or impeachment value
so that their loss can be considered to be in bad faith.
Defendant has not shown any violation of his constitutional
rights by the D.A.’s loss of its original files or any part of
them.

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II.
DENIAL OF MEANINGFUL APPELLATE REVIEW OF ORDER DENYING DISCOVERY
OF PRIVILEGED MATERIAL
Defendant filed a motion to compel discovery of documents
withheld by the A.G. as privileged. A hearing was held on
defendant’s motion to compel discovery on the first day of
trial, November 4, 2003. The trial court reviewed the claimed
privileged documents in camera and determined there was only one
part of the medical records of C.M. that should be disclosed to
defendant. The remainder was covered by the work product or
psychotherapist privileges.
On appeal defendant complains the trial court did not
retain the documents it reviewed for purposes of appellate
review as required by People v. Reber (1986) 177 Cal.App.3d 523,
532 (overruled to the extent it held the confrontation clause
requires pretrial discovery of privileged information in People
v. Hammon (1997) 15 Cal.4th 1117, 1123-1128), thereby precluding
defendant from obtaining appellate review of the order denying
him discovery, violating his constitutional rights to due
process, to confront witnesses and to present a defense.
The documents listed in the A.G.’s privilege log and
reviewed by the trial court in camera were, however, retained by
the A.G. In compliance with our order to the trial court to
transmit the documents under seal to this court, the trial court
obtained the documents from the A.G. and the record on appeal
has been augmented with those documents under seal. We have

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28
reviewed the documents and find no error in the trial court
rulings regarding them.
III.
ADMISSION OF INVESTIGATOR’S OPINION TESTIMONY
Shannon Bowlin testified she investigated sexual assault
cases for the D.A., was a SART (Sexual Assault Response Team)
member, and was previously a police officer and a deputy sheriff
for nine years in San Diego. She had interviewed underage girls
with regard to allegations of unlawful sex in “over a hundred
[cases], for sure.”
On appeal, defendant complains the trial court committed
reversible error in allowing Bowlin “to render expert opinions
on the characteristics, behaviors and motivations of underage
girls who have been molested by older men with whom they are
romantically involved.” Defendant complains Bowlin was
unqualified to provide expert opinion testimony regarding CSAAS
(Child Sexual Abuse Accommodation Syndrome) and her lay opinion
was irrelevant. We find no error.
Defendant refers to a portion of Bowlin’s testimony where
she was asked to “characterize [C.M.’s] reluctance to at first
divulge her sexual relationship with the defendant? Was that
normal or abnormal?” Defendant objected the question called for
an opinion and there was no foundation for Bowlin’s expertise.
Specifically, defendant argued the question asked, “essentially
for a psychological profile . . . and I don’t think there is
sufficient foundation laid for that.” “Simply because she’s

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interviewed hundreds of girls doesn’t mean she’s an expert, and
the reasons people may have for the psychological pressures or
the psychological perspective on why one might say one thing and
one another, and that’s where we’re going here.” The court
suggested the question be narrowed to ask whether this was
unusual “in the experience that she has personally had, . . .
versus a broader sort of a psychological evaluation of how
alleged sex victims in general respond.” The prosecutor then
asked Bowlin, given her experience, how usual or unusual it was
for an underage girl to at first deny she was sexually involved
with an older man. Defendant objected that “how unusual is it
is not the same as how unusual did you find it in your
interviews.” The prosecutor explained that was what he asked.
After making sure Bowlin understood the question of how unusual
it was referred to her own personal experience and not some
broad generalization, the court overruled the objection. Bowlin
answered: “In my experience, almost every -- I cannot think of
a time when I have interviewed a victim in these circumstances
where they have immediately disclosed their relationship with
the man they were involved with.”
Defense counsel asked Bowlin, on redirect examination,
whether what she was saying was that an initial denial of a
sexual relationship by an underage girl meant in fact the girl
had a sexual relationship. Bowlin responded “no,” but added,
without objection from defendant, “in cases of unlawful sexual
intercourse where there is also a romantic relationship of some

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kind and you have a teenaged girl, they’re very protective of
these men, and, no, they do not disclose initially.”
Respondent argues Bowlin’s testimony was not opinion
testimony at all. We disagree. In the context of the
prosecutor’s questioning of how unusual it was for a victim to
initially deny a sexual relationship, Bowlin answered,
essentially, that in her experience it was typical. In fact,
based on her personal experience, underage girls involved in a
sexual relationship with an older man had always initially
denied the relationship. Bowlin also later stated these girls
tend to be “protective” of the men with whom they are involved.
Both these statements (the girls do not initially disclose and
are protective of the man) are in effect opinions. However,
while we agree Bowlin’s testimony is properly characterized as
opinion testimony, we do not agree with defendant that it was
improperly admitted.
An expert may testify in the form of an opinion. (Evid.
Code, § 801.) “A person is qualified to testify as an expert if
he has special knowledge, skill, experience, training, or
education sufficient to qualify him as an expert on the subject
to which his testimony relates.” (Evid. Code, § 720, subd.
(a).) A trial court has “considerable latitude in determining
the qualifications of an expert and its ruling will not be
disturbed on appeal unless a manifest abuse of discretion is
shown.” (People v. Kelly (1976) 17 Cal.3d 24, 39.) “In
considering whether a person qualifies as an expert, the field

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of expertise must be carefully distinguished and limited.”
(People v. King (1968) 266 Cal.App.2d 437, 445.)
Here Bowlin did not have the qualifications of an expert in
the field of psychology and could not testify to general
psychological behaviors or motivations of underage girls
involved in sexual relationships with older men. However,
defendant failed to object to the portion of Bowlin’s testimony
expressing the general opinion that underage girls involved in
situations of unlawful sex want to protect the man with whom
they are involved. Defendant has forfeited any error in the
admission of such testimony. (Evid. Code, § 353, subd. (a);
People v. Boyette (2002) 29 Cal.4th 381, 424.)
With respect to the portion of Bowlin’s testimony
expressing her opinion, limited to her experience, that underage
girls involved in situations of unlawful sex did not initially
disclose the relationship, Bowlin did have considerable,
specialized experience in investigating situations similar to
C.M.’s for law enforcement or prosecution. She testified she
had interviewed over a hundred underage girls with regard to
allegations of unlawful sex in her prior positions with law
enforcement and then her position as a D.A. investigator and
SART member. The trial court carefully limited her testimony to
just such personal experience. The trial court did not abuse
its discretion in impliedly finding her qualified as an expert
in the limited area of investigation of underage girls involved
in sexual relationships with older men.

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A properly qualified expert may offer an opinion relating
to a subject that is beyond common experience, if that expert’s
opinion will assist the trier of fact. (Evid. Code, § 801,
subd. (a).) The trier of fact does not need to be wholly
ignorant of the subject matter of the opinion to justify the
admission of expert opinion testimony. The testimony is
admissible as long as it will “assist” the trier of fact.
(People v. McAlpin (1991) 53 Cal.3d 1289, 1299-1300 (McAlpin).)
People v. McAlpin, supra, 53 Cal.3d 1289 (McAlpin), is
helpful. In McAlpin the California Supreme Court concluded a
law enforcement officer who properly qualified as an expert
could testify to the common reactions of a parent of a child
molestation victim, including their delay in reporting the
molestation. (McAlpin, supra, at pp. 1300-1302.)7 Such
testimony was not admissible to prove the underlying
molestation, but was admissible to rehabilitate the testimony of
the parent as a corroborating witness after her credibility had
been challenged. (Ibid.) The expert testimony was helpful to
the trier of fact because it helped correct a common
misassumption that a parent would always promptly report a
7 The officer in McAlpin had considerably more qualifications
from specialized training in the area of psychology than Bowlin
and was allowed to express generalized opinions regarding how
parents would commonly react in situations of child molestation.
(McAlpin, supra, 53 Cal.3d at p. 1298.)

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33
molestation. (Id. at p. 1302.) It was relevant to an
evaluation of the parent’s credibility. (Ibid.)
In People v. Brown (2004) 33 Cal.4th 892 (Brown), the
California Supreme Court considered the admission of expert
testimony regarding the behavior of victims of domestic
violence. Using reasoning similar to McAlpin, the Supreme Court
held the testimony was admissible under Evidence Code section
801 to assist the jury in evaluating the credibility of the
victim’s trial testimony when it was inconsistent with earlier
statements. (Brown, supra, at pp. 905-907.)
Here defendant sought to impeach C.M.’s testimony regarding
the sexual acts occurring between her and defendant with, among
other things, C.M.’s multiple denials of any sexual relationship
with defendant in her first several interviews with law
enforcement. By analogy to McAlpin and Brown, Bowlin’s expert
testimony regarding underage girls initially denying unlawful
sexual relationships was admissible and relevant to assist the
court, as the trier of fact, in evaluating C.M.’s credibility.
We are confident the trial court, as the trier of fact, remained
aware of Bowlin’s limited expert qualifications and gave her
opinion its appropriate weight.
IV.
SUFFICIENCY OF THE VICTIM’S TESTIMONY
Defendant claims this case presents one of those relatively
rare situations where the testimony supporting the verdicts is
inherently improbable or unreliable as a matter of law.

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34
Analogizing primarily to cases involving government informants
(People v. Medina (1974) 41 Cal.App.3d 438, 452; People v. Green
(1951) 102 Cal.App.2d 831, 834), although noting one case
involving uncontradicted affidavits of coaching and tampering
with a child victim/witness (People v. Hudson (1934) 137
Cal.App. 729, 730), defendant contends C.M.’s testimony was
coerced by the demands of her mother and by C.M.’s desire to get
more attention from her mother. Defendant also claims C.M.’s
mother inflamed C.M. against defendant by telling her defendant
had “pornography” or “picture of girls like [her]” on his
computer.
“[E]vidence which is produced by coercion is inherently
unreliable and must be excluded under the due process clause.”
(People v. Lee (2002) 95 Cal.App.4th 772, 786-787, italics
omitted.)
There is some evidence in the record to support defendant’s
claims of coercion. However, in light of the evidence
significantly corroborating C.M.’s trial testimony, the trial
court as the trier of fact was not required to reject C.M.’s
testimony as unreliable as a matter of law. (People v. Sepeda
(1977) 66 Cal.App.3d 700, 707-709.) Important corroboration of
C.M.’s testimony was provided by the testimony of K.M. regarding
the pregnancy test she took to C.M. at the gym, defendant’s
instruction to K.M. to deny the test ever occurred or she could
be “implicated,” K.M.’s statement to the investigator of
defendant’s implicit admission of his sexual relationship when

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35
accused of it by K.M., and defendant’s requests that, if asked,
K.M. should say the engagement ring was hers, that she was
originally the person who was supposed to accompany C.M. to the
health clinic, and that she should deny the existence of the
note sent to C.M. by Ms. Hobbs. K.M. also drove defendant
around town to spray paint the numbers “381” in various places.
The public health nurse, Ms. Morrison, provided further
circumstantial evidence of the sexual relationship between
defendant and C.M. in her testimony regarding their visit to the
health clinic. That a sexual relationship had started is one
reasonable inference even from defendant’s own first September
2000 e-mail to C.M. stating, “I am partially running off the ‘L’
word, too, and this is definite boost. I had the time of my
life tonight and I owe it all to you.” Further evidence of
defendant’s relationship with C.M. was memorialized in his
December 2000 e-mail to her “my love grows stronger for you with
each passing day. Thank you for being the most beautiful thing
in my life. I love you more than words can say. Think of me
and I will be by your side, I promise. Love forever, Kurt.”
Thus, this case simply presented a situation where a wealth
of conflicting information was presented to the trial court. It
was up to the court, as the trier of fact, to resolve the
conflicts and inconsistencies in the testimony and decide the
credibility of the witnesses. We will not do so on appeal.
(People v. Young (2005) 34 Cal.4th 1149, 1181; People v. Barnes

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(1986) 42 Cal.3d 284, 303-306.) We conclude substantial
evidence supports the verdicts of the trial court.
V.
CUNNINGHAM ERROR
On October 2, 2003, prior to trial, defense counsel
informed the trial court defendant was “ready and willing and
prepared to enter a jury trial waiver and have the court hear
the facts.” The trial court then took defendant’s waiver of his
right to jury trial on the record as follows:
“THE COURT: All right. Mr. Sindorf, you just heard the
representations of your counsel; that is, that you are willing
to waive jury in this case. [¶] Do you understand what that
means is that you are giving up the right to have 12 citizens
hear the case, decide the question of your guilt or innocence?
“THE DEFENDANT: That’s correct.
“THE COURT: That -- you understand that what is going to
happen in [its] place is that a judge will be making that
decision after having heard the evidence that is presented by
both sides?
“THE DEFENDANT: That’s correct.
“THE COURT: Do you agree with that waiver of jury and
having the matter heard by a judge?
“THE DEFENDANT: Yes, I do.” (Italics added.)
Defendant contends on appeal his jury trial waiver was not
knowing and intelligent because he was not informed he was
giving up the right to have factors affecting his sentence heard

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37
by a jury pursuant to Apprendi, supra, 530 U.S. 466 [147 L.Ed.2d
435], Blakely, supra, 542 U.S. 296 [159 L.Ed.2d 403], and
Cunninghan, supra, 549 U.S. __ [166 L.Ed.2d 856]. Defendant
argues such information could have been material to his decision
to waive a jury on the question of guilt or innocence. “The
defendant could decide, that, win or lose, he would prefer to at
least have a jury decide issues related to sentencing.”
Defendant claims, therefore, his jury trial waiver was invalid
in its entirety and that he is entitled to a new trial, not just
a resentencing, “because the defective waiver as to sentencing
factors could have affected [defendant’s] decision to waive [a]
jury as to issues of guilt and innocence.” We reject
defendant’s construction of his jury trial waiver. Defendant is
not entitled to reversal and a remand for a new trial.
Both the federal and state Constitutions provide a criminal
defendant with a fundamental right to a trial by jury.
(Sullivan v. Louisiana (1993) 508 U.S. 275, 281-282 [124 L.Ed.2d
182, 190-191]; Duncan v. Louisiana (1968) 391 U.S. 145, 155-156
[20 L.Ed.2d 491, 499-500]; People v. Collins (2001) 26 Cal.4th
297, 304; People v. Ernst (1994) 8 Cal.4th 441, 444-445.) Under
Apprendi, supra, 530 U.S. 466 [147 L.Ed.2d 435], Blakely, supra,
542 U.S. 296 [159 L.Ed.2d 403], and Cunninghan, supra, 549 U.S.
__ [166 L.Ed.2d 856], defendant’s right to jury trial extended
to all but recidivist circumstances in aggravation under the
California Determinate Sentencing Law (DSL). “Except for a
prior conviction, ‘any fact that increases the penalty for a

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38
crime beyond the prescribed statutory maximum must be submitted
to a jury, and proved beyond a reasonable doubt.’” (Cunningham,
supra, 549 U.S. __ [166 L.Ed.2d at p. 873].)
A defendant may waive his right to jury trial. (People v.
Collins (2001) 26 Cal.4th 297, 305 (Collins); People v. Smith
(2003) 110 Cal.App.4th 492, 500.) A defendant may also waive
his right to have the jury determine the existence of
aggravating sentencing factors. (Blakely, supra, 542 U.S. at
p. 310 [159 L.Ed.2d at pp. 417-418]; see People v. Earley (2004)
122 Cal.App.4th 542, 550.) However, any waiver must be knowing
and intelligent -- that is, it must be made with a full
awareness both of the nature of the right being abandoned and
the consequences of the decision to abandon it. (Collins,
supra, at p. 305; People v. Johnson (2002) 28 Cal.4th 1050,
1055.)
The record here demonstrates defendant waived his right to
a jury trial as to his “guilt or innocence[.]” There is nothing
in the record that suggests such waiver included his right to a
jury trial as to any sentencing factors. In fact, the language
of his waiver seems to expressly exclude such an interpretation
since it was limited to trial of defendant’s “guilt or
innocence,” that is, to the trial of the underlying offenses.
Moreover, the trial court never advised defendant on the record

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39
of any right he had pursuant to Apprendi8 and nothing in the
record even hints that either defendant or his counsel was
considering waiver of any sentencing jury trial right as part of
the waiver. Defendant’s jury trial waiver cannot be construed
as a knowing and intelligent waiver of his right to jury trial
on sentencing factors.
We conclude the scope of defendant’s waiver of his right to
jury trial was limited to the trial of his guilt or innocence of
the charged offenses. The scope of his waiver did not include
his right to a jury trial for aggravating factors affecting his
sentence. As defendant’s waiver did not include his
Apprendi/Blakely/Cunningham rights, the factual premise for
defendant’s argument for the invalidity of his jury waiver as to
his guilt or innocence is missing. Defendant is not entitled to
reversal and a new trial.
This leaves us with the question of whether the trial court
erred under Cunningham in sentencing defendant to the upper term
on count two (one of his convictions for unlawful sexual
intercourse with a minor (§ 261.5, subd. (d)) and to consecutive
one-third of the middle term or one-year sentences for two of
his other convictions of unlawful sexual intercourse and to a
two-year consecutive term for one of his convictions of
attempting to dissuade a witness. (§ 136.1, subd. (a)(2).)
8 At the time of defendant’s waiver, only Apprendi, supra, 530
U.S. 466 [147 L.Ed.2d 435] had been decided.

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40
Respondent contends we need not address these issues
because defendant forfeited his claim of error by failing to
object at trial. Respondent claims defendant not only failed to
object, but “virtually invited an upper term sentence.”
Respondent points us to comments made by defense counsel in
response to the trial court’s tentative decision regarding
sentencing.
Specifically, the trial court indicated its tentative
decision with regard to sentencing was to impose an upper four-
year prison term on count two. The trial court stated that
“[w]ith regard to all of the other counts, the court would
anticipate that there would be a one-third the mid-term
potential. The court does not at this time have a tentative
with regard to the number of those counts that would be
sentenced consecutively versus concurrently. And I do wish to
hear from counsel with regard to that.” In response, defense
counsel pointed out there was no indication or evidence “or even
inference” of violence or threat of violence by defendant
“throughout the course.” Defense counsel pointed out
defendant’s complete lack of any prior criminal record. Counsel
went on to state: “It would strike me, in looking at the
sentencing in this case, I would not even object to the court’s
imposition of the upper term of four years on count 2. But it
seems to me that, given that, consecutive sentencings on the
balance of the charges would be egregious and unfair and
excessive. It seems to me that the sentence more in line of the

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41
four-year upper and perhaps the balance of them being concurrent
would be more appropriate.”
We do not read these comments, as respondent implies, to be
a concession by defendant that the upper term should be imposed.
In fact, defense counsel emphasized the potential strength of
two mitigating factors, apparently in an attempt to argue
against the trial court’s tentative decision to impose the upper
base term. Only then did counsel indicate defendant would not
object to the upper term, but as we understand it, apparently
only on the basis that the court impose concurrent sentences on
all of defendant’s other convictions. We view the defense
comments not as an invitation to impose the upper term, but as
an argument, given the trial court’s expressed intention to
impose the upper term, for no more than a total of four years in
prison.
The fact defendant did not agree to imposition of the upper
term is, of course, not the same as objecting to the imposition
of the upper term on the grounds that a jury rather than the
trial court must find the aggravating facts beyond a reasonable
doubt. Clearly defendant did not interpose such an objection.
In this regard, respondent predicates its forfeiture argument
primarily on the United States Supreme Court’s decisions in
United States v. Booker (2005) 543 U.S. 220 [160 L.Ed.2d 621]
(Booker) as well as United States v. Cotton (2002) 535 U.S. 625
[152 L.Ed.2d 860] (Cotton) and the California Supreme Court’s
decision in People v. Scott (1994) 9 Cal.4th 331 (Scott).

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Respondent argues defendant was in the identical position as the
defendant Blakely and any claim of futility is conjectural. We
do not find forfeiture in this case.
In Booker, supra, 543 U.S. 220 [160 L.Ed.2d 621], the
United States Supreme Court, in the portion of the opinion
delivered by Justice Breyer, expressed its expectation that
reviewing courts would continue to apply to cases involving
Apprendi error “ordinary prudential doctrines, determining for
example, whether the issue was raised below and whether it fails
the ‘plain-error’ test.” (Id. at p. 269 [160 L.Ed.2d at
p. 665].) The Supreme Court noted that not all cases involving
a Sixth Amendment violation would require resentencing after
application of the harmless-error doctrine. (Ibid.) Booker,
thus, contemplates the possibility of forfeiture for a Sixth
Amendment right under Apprendi and its progeny.
United States v. Cotton (2002) 535 U.S. 625 [152 L.Ed.2d
860] held that a defendant’s failure to object to Apprendi error
in the trial court forfeits the right to raise it on appeal if
the error did not seriously affect the fairness, integrity, and
public reputation of the judicial proceedings, i.e., if a factor
relied upon by the trial court in violation of Apprendi was
uncontroverted at trial and was supported by overwhelming
evidence. (Id. at pp. 631-633 [152 L.Ed.2d at pp. 867-869].)
In Scott, supra, 9 Cal.4th 331, the California Supreme
Court concluded a defendant forfeits claims “involving the trial
court’s failure to properly make or articulate its discretionary

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sentencing choices.” (Id. at p. 353.) The Supreme Court found
forfeiture appropriate “[i]n order to encourage prompt detection
and correction of error, and to reduce the number of unnecessary
appellate claims[.]” (Id. at pp. 351, 353.) The court based
its conclusion on the practical reasoning that “counsel is
charged with understanding, advocating, and clarifying
permissible sentencing choices at the hearing” and “[r]outine
defects in the court’s statement of reasons are easily prevented
and corrected if called to the court’s attention.” (Id. at
p. 353.)
Applying these cases, we cannot find defendant here
forfeited his Sixth Amendment right to jury trial on aggravating
sentencing factors by his failure to object at the trial court
level.
First, while Apprendi had been filed several years before
defendant’s sentencing in December 2003, it appeared the holding
of Apprendi did not extend to aggravating sentencing factors
under the California DSL. (See People v. Sengpadychith (2001)
26 Cal.4th 316, 326.) No published case in California at the
time of defendant’s sentencing held Apprendi required a jury
trial for any aggravating sentencing factor used to impose an
upper term. Thus, what we now know is Cunningham error would
not have been easily recognized, prevented and corrected by the
trial court in this case if defendant had objected in 2003 based
on Apprendi. Indeed, given the state of the law, any such
objection would probably have been futile in terms of obtaining

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any immediate relief from the trial court. The practical
rationale of Scott, supra, 9 Cal.4th at p. 353, does not require
a forfeiture be found in these circumstances.
We recognize counsel had an obligation, nevertheless, to
preserve a potential appellate claim under Apprendi, as the
defendant did in Blakely. A forfeiture under Cotton, supra, 535
U.S. at pp. 631-633 [152 L.Ed.2d at pp. 867-869], would be
appropriate if this case presented a situation where the
Cunningham error did not seriously affect the fairness,
integrity, and public reputation of the judicial proceedings,
i.e., if the factors relied upon by the trial court in violation
of Cunningham were uncontroverted at trial and were supported by
overwhelming evidence. This is not such a case.
The trial court here imposed the upper term on count two
based on a finding that the aggravating factors outweighed the
mitigating factors. It stated the aggravating factors as (1)
defendant had induced others to participate in the commission of
the crime (Cal. Rules of Court, rule 4.421(a)(4)),9 (2) defendant
threatened witnesses (rule 4.421(a)(6)), and (3) defendant took
advantage of a position of trust or confidence to commit the
offense. (Rule 4.421(a)(11).) The only mitigating factor the
trial court found was defendant’s lack of a prior record. (Rule
4.423(b)(1).)
9 Undesignated rule references are to the California Rules of
Court.

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The aggravating factors relied on by the trial court were
not uncontroverted and while there was substantial evidence to
support them, we cannot say they were supported by overwhelming
evidence. We cannot say that if the aggravating facts had been
submitted to a jury, the jury unquestionably would have found
them to be true and, thus, the Apprendi/Blakely/Cunningham error
was harmless beyond a reasonable doubt. We conclude the trial
court erred in imposing the upper term on defendant for his
conviction of count two and that the Cunningham error did
seriously affect the fairness, integrity, and public reputation
of the judicial proceedings so as to preclude the doctrine of
forfeiture being applied to defendant’s failure to object below.
As for the trial court’s imposition of consecutive
sentences on three of defendant’s convictions, we note that
Cunningham did not address whether the decision to run separate
terms concurrently or consecutively must be made by the jury.
Section 669 imposes that duty on the trial court. In most
cases, this is a matter of the trial court’s discretion.
(People v. Morris (1971) 20 Cal.App.3d 659, 666, overruled on
another ground People v. Duran (1976) 16 Cal.3d 282, 292.)
“While there is a statutory presumption in favor of the middle
term as the sentence for an offense [citation], there is no
comparable statutory presumption in favor of concurrent rather
than consecutive sentences for multiple offenses except where
consecutive sentencing is statutorily required. The trial court
is required to determine whether a sentence shall be consecutive

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or concurrent but is not required to presume in favor of
concurrent sentencing.” (People v. Reeder (1984) 152 Cal.App.3d
900, 923.)
Section 669 provides that when a trial court fails to
determine whether multiple terms are to run concurrently or
consecutively, they shall run concurrently. However, this does
not create a presumption or other entitlement to concurrent
sentencing. It merely provides for a default in the event the
court neglects to perform its duty in this regard. The trial
court here did not neglect its duty to state whether the
sentences imposed for defendant’s other convictions were to run
concurrently or consecutively to the base term for count two.
It specifically chose to impose consecutive sentences for three
of defendant’s remaining 11 convictions and concurrent sentences
for the rest.
Entrusting to the trial court the decision whether to
impose concurrent or consecutive sentences is not precluded by
Apprendi, Blakely, or Cunningham. In this state, every person
who commits multiple offenses knows that, if convicted, he or
she runs the risk of receiving consecutive sentences without any
further factual findings. While such a person has the right to
the exercise of the court’s discretion, the person does not have
a legal right to concurrent sentencing. As the Supreme Court
said in Blakely, “that makes all the difference insofar as
judicial impingement upon the traditional role of the jury is

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concerned.” (Blakely, supra, 542 U.S. at p. 309 [159 L.Ed.2d at
p. 417].)
Defendant’s Sixth Amendment rights were not violated when
the trial court imposed consecutive terms on counts four, six
and twelve.
Although we conclude only the trial court’s imposition of
an upper term on count two violated Cunningham, we will vacate
defendant’s sentences in toto and remand the case to the trial
court for resentencing proceedings in order to provide the trial
court with the opportunity to structure overall sentences in
compliance with Cunningham.
DISPOSITION
Defendant’s sentences are reversed and the case is remanded
to the trial court with directions to resentence defendant in
compliance with Cunningham v. California (2007) 549 U.S. __ [166
L.Ed.2d 856]. In all other respects, the judgment is affirmed.
CANTIL-SAKAUYE , J.
We concur:
SIMS , Acting P.J.
DAVIS , J.

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