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Name: People v. Sayres
Case #: B188303
Court: CA Court of Appeal
District 2 DCA
Division: 4
Opinion Date: 05/15/2007
Subsequent History: rev. granted 8/22/07, S153862

Cunningham error was harmless where the trial court also relied on two valid aggravating factors when imposing the upper term for forcible sex offenses. Appellant burglarized the victim’s residence and forcibly raped her at knife point while her infant daughter slept in another room. He was convicted of several forcible sex offenses. The trial court selected the upper term for rape and the upper term for the knife use allegation. On appeal, appellant contended that in choosing these terms the court violated Cunningham by relying on sentencing factors not found by the jury. The appellate court found the error harmless. At least two of the sentencing factors considered by the court did not violate Cunningham. The trial court found that appellant had engaged in a pattern of violent conduct which indicated a serious danger to society. In order to reach that conclusion the court properly considered appellant’s prior convictions and the facts of the instant case. It also relied on appellant’s prior prison term. One valid factor in aggravation is sufficient to support the imposition of the upper term. The existence of the two prior factors supported the imposition of upper terms and demonstrates that there was no reasonable possibility that had the court not considered other factors in violation of Cunningham, that the sentence would have been different.