Sayres

[EDITORS' NOTE: THIS OPINION IS DEPUBLISHED UPON GRANTING OF PETITION FOR REVIEW. THE OPINION APPEARS BELOW WITH A GRAY BACKGROUND.]

A jury convicted defendant Tadashi Nakia Sayres of two counts of forcible rape (§ 261, subd. (a)(2)), 1 and found true the allegations in each count that he personally used a deadly weapon (a knife) (§ 12022.3, subd. (a)) and that he committed the crimes during the commission of burglary while using a deadly weapon (§ 667.61, subds. (a), (e)). 2 He admitted a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). The trial court sentenced him to a total term of 86 years to life in state prison. He appeals from the judgment, contending (1) the judgment must be reversed because the court reporter cried during a readback of testimony; (2) the trial court erred in excusing a juror during deliberations; (3) the trial court erred in excluding evidence that the victim in the instant case made an allegedly false prior accusation of attempted rape; (4) the court erred in imposing a five-year enhancement under section 667, subdivision (a), on each of the counts on which defendant was convicted; and (5) the court's selection of the upper…

I concur in the judgment. I write separately to express my view that we are not required to determine whether sentencing error was harmless beyond a reasonable doubt. The trial court cited five factors in support of its imposition of the upper term. Three of the factors were not properly considered as there was neither a finding by the jury nor an admission by defendant. They are: (1) the manner in which the crime was carried out indicates premeditation; (2) the defendant has engaged in violent conduct that indicates a serious danger to society; and (3) the crime involved great bodily harm or other acts disclosing a high degree of viciousness, callousness, and force. However, the remaining two factors the trial court cited, defendant's prior convictions as an adult are numerous and of increasing seriousness and defendant has served a prior prison term, relate to his recidivism. Thus, the trial court could rely on either factor to impose a sentence above the statutory maximum without running afoul of the rule enunciated in Apprendi v. New Jersey (2000) 530 U.S. 466 [ 147 L.Ed.2d 435 , 120 S.Ct. 2348 ] ( Apprendi ) and recently affirmed in Cunningham v. California (2007) 549 U.S.…

I concur in the entirety of the opinion with the exception of the discussion of the effect of Cunningham error ( Cunningham v. California (2007) 549 U.S. ____ [ 166 L.Ed.2d 856 , 127 S.Ct. 856 ]), and the resulting full affirmance. As the lead opinion points out, the trial court relied on five factors in imposing the aggravated term for rape. Of these, at least one involves recidivism of a kind not affected by Cunningham and the high court decisions that preceded it, and another likely *Page 1048 satisfies the recidivism exception. These factors are, respectively, defendant's prior prison term, and that his prior convictions are numerous and of increasing seriousness. (The latter is now before our Supreme Court in People v. Towne , review granted July 14, 2004, S125677.) But three others — the first three enumerated by the court — are outside the recidivism exception. As to each of these, defendant has a Sixth Amendment right to have a jury determine whether it was factually established, and hence a proper basis for imposition of the high term. These are: that the crime involved planning, sophistication or professionalism, indicating premeditation; that defendant engaged in a…

Certified for Partial Publication. [*]

A jury convicted defendant Tadashi Sayres of two counts of forcible rape (§ 261, subd. (a)(2)), [1] and round true the allegations in each count that he personally used a deadly weapon (a knife) (§ 12022.3, subd. (a)) and that he committed the crimes during the commission of burglary while using a deadly weapon (§ 667.61, subds. (a) & (e)). [2] He admitted a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). The trial court sentenced him to a total term of 86 years to life in state prison. He appeals from the judgment, contending: (1) the judgment must be reversed because the court reporter cried during a readback of testimony; (2) the trial court erred in excusing a juror during deliberations; (3) the trial court erred in excluding evidence that the victim in the instant case made an allegedly false prior accusation of attempted rape; (4) the court erred in imposing a five-year enhancement under section 667, subdivision (a), on each of the counts on which defendant was convicted; and (5) the court's selection of the upper term for the rape conviction and the knife use enhancement on count 2 violated…