People v. Valenzuela CA3

Filed 10/28/26 P. v. Valenzuela CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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) THE PEOPLE, C101032 Plaintiff and Respondent, (Super. Ct. No. 22FE019336) v. VICTOR DANIEL VALENZUELA, Defendant and Appellant. A jury convicted defendant Victor Daniel Valenzuela of three crimes against Alejandra Doe including rape (Pen. Code, § 261, subd. (a)(2))(statutory section references that follow are to the Penal Code unless otherwise stated); sexual penetration (§ 289, subd. (a)(1)); and attempted sodomy (§§ 664, 286, subd. (c)). Defendant raises a variety of claims on appeal. He contends that (1) the trial court committed error when it prohibited him from cross-examining Alejandra about the results of her urine toxicology test that she provided on the night of the sexual assault; (2) the trial court made several sentencing errors including imposing upper term sentences based upon an aggravating factor that had not been proven to a jury beyond a reasonable doubt; (3) the trial court erred by imposing a full-term consecutive sentence for attempted sodomy under section 667.6, subdivision (c); (4) the trial court committed judicial misconduct; and (5) his federal and state constitutional rights were violated, resulting in prejudice, when the trial court conducted the victim restitution hearing in absentia. 1  We find no error as it pertains to the trial court’s limitation of the cross- examination of Alejandra. We decline to reach the merits of defendant’s judicial misconduct claim because he failed to object. However, the trial court did err when it imposed a full-term consecutive sentence for attempted sodomy under section 667.6, subdivision (c) and when it held the victim restitution hearing without obtaining a proper waiver from defendant. As we shall explain, these errors were harmless. The trial court also erred when it imposed upper term sentences based upon an aggravating factor not proven true beyond a reasonable doubt to the jury. This error was not harmless beyond a reasonable doubt. As such, we will vacate defendant’s sentence and remand for full resentencing. The judgment is otherwise affirmed. FACTS AND HISTORY OF THE PROCEEDINGS The Rape of Alejandra Doe Defendant’s sister introduced Alejandra to defendant in October 2022. Defendant’s sister suggested that Alejandra work for defendant as a receptionist at his ranch which hosted events and where defendant sold horses. Alejandra went to defendant’s ranch for her first day of work on October 12. Defendant and Alejandra were in the process of negotiating a salary of $15 or $20 per hour that morning. When Alejandra arrived she asked how to get into the office. Defendant responded, “How do you like it [sic] to have it done, in the front or through the back?” During the discussions on the first day of work defendant yelled at Alejandra and asked whether she was “dumb” when she couldn’t complete a task. He laughed when he was rude to her. Alejandra had to force defendant to focus on work because he was flirting with her and talking about other things. Alejandra was not interested in defendant. 2  When they went out to see the horses later on October 12, defendant touched Alejandra’s “bottom.” Alejandra told him not to do that, and he laughed at her. Then although it was “around 11:00 or 12:00,” when they went back inside the office defendant offered Alejandra wine which Alejandra pretended to drink. When Alejandra mentioned that she was interested in massage school, defendant claimed he knew how to give massages and asked her if she wanted one. Alejandra declined. She decided that she would not be returning to work for defendant. In the early afternoon, Alejandra asked if she could leave. Defendant told her to wait for him and walked around like he was “nervous.” Defendant then grabbed Alejandra and said that he wanted to be with her as he pushed her towards his bedroom. Alejandra said no but defendant came closer. She asked to use the restroom and went inside for a few minutes while deciding what to do. Defendant was naked when she came out. Defendant grabbed Alejandra. He took off her pants and threw her on the bed. Alejandra cried and told him to stop. Defendant said she looked like a baby. Once Alejandra was on the bed, defendant also took off her shirt and bra. Defendant grabbed Alejandra by the hands and threw her face down onto the mattress. He put his finger inside of her anus while he held her hands behind her back. He then unsuccessfully tried to insert his penis into her anus. He put his penis into her vagina instead. Defendant bit Alejandra’s neck and breasts. Alejandra was “really angry” and told defendant she was going to leave. She went into the restroom and washed her “bottom part” with soap. As she cleaned herself, she found a condom inside of her vagina. After she got dressed, she asked to be paid for the time she worked and defendant put cash in her bag. Alejandra went to her car to leave but the front gate of the ranch was locked. She asked defendant to open it for her and when he came out, she said, “You know what you did.” Defendant responded that it was “nothing” and that they were both adults. When 3 Alejandra said she would call law enforcement, defendant responded that they were not going to believe her and that all she wanted was money. He said that “if something would happen” he knew she had children and where they lived. As soon as Alejandra left, she called law enforcement. After her interview with detectives, Alejandra underwent a sexual assault examination. Defendant’s DNA was found on Alejandra’s left breast, neck, mouth, rectum, anus, and underwear. A jury found defendant guilty of rape in count 1 (§ 261, subd. (a)(2)), sexual penetration in count 2 (§ 289, subd. (a)(1)), and attempted sodomy in count 3 (§§ 664, 286, subd. (c)). In a bifurcated proceeding, the jury found true the aggravating circumstance that defendant took advantage of a position of trust or confidence. (Cal. Rules of Court, rule 4.421(a)(11), rule references that follow are to the California Rules of Court unless otherwise stated.) In a separate bifurcated proceeding, the trial court found true the aggravating circumstance that defendant’s prior convictions for misdemeanor battery (§ 242); driving under the influence (Veh. Code, § 23152, subd. (b)); and fraud (Ins. Code, § 11880, subd. (a); Unemp. Ins. Code, § 2117.5) were numerous and of increasing seriousness. (Rule 4.421(b)(2).) The trial court sentenced defendant to an aggregate term of 20 years comprised of four years (half the upper term of eight years) for attempted sodomy as the principal term; a consecutive upper term of eight years for rape; and a consecutive upper term of eight years for sexual penetration. In a separate victim restitution hearing, the trial court ordered defendant to pay $4,763.06 to Alejandra. Defendant appeals both the judgment and the separate restitution order. 4  DISCUSSION I Cross Examination of Alejandra Defendant contends that the trial court violated his constitutional rights to due process and a fair trial, as well as his rights to present a defense and confront and cross- examine a witness by prohibiting him from cross-examining Alejandra regarding the results of her urinalysis report that showed oxycodone and hydrocodone in her system. Defendant claims the error was an abuse of discretion under Evidence Code section 352 because the presence of drugs in Alejandra’s system was relevant to establishing whether she could recall or perceive the details of the rape. We reject this claim. Alejandra underwent a sexual assault examination on the evening of the rape. Alejandra self-reported that she took Albuterol, Tylenol, and a prescription pain medication, though she did not identify the type of pain medication. Alejandra provided a urine sample during the examination but the results are not included in the record. Before trial, defense counsel asked the trial court for permission to ask Alejandra about the results of her urinalysis report on cross-examination. Counsel explained that the report came out a month after Alejandra’s urinalysis and “confirmed the presence of oxycodone and hydrocodone.” Counsel argued that cross-examination on the results was relevant to establish whether Alejandra had the ability to “perceive and recollect” what happened at the time of the incident because opioids are hallucinogenic and can alter perceptions. The trial court denied the request. The court pointed out that Alejandra’s testimony on the subject would be limited to whether she took the medication and what type it was and that an expert would be required to tell the jury that “opioids are…hallucinogenic” and whether the amount Alejandra had in her system would cause her to hallucinate. The court also found that cross-examination on Alejandra’s urinalysis 5 results would confuse the jury because defendant did not present any anticipated expert testimony on the effect of drugs in Alejandra’s system or when any drugs “went in her system and all of that.” In response, defense counsel emphasized he just wanted to ask Alejandra about her “own state of mind and what she ingested” but the trial court responded: “I am going to deny the request to allow you to cross-examine her on that. I don’t believe that there is sufficient grounds to question her. There are too many unknowns as to what she took, how much she took, when she took it, what its effect on her was. Whether she had food in her system, whether there’s additional factors that may contribute to either a greater or a lesser amount of impairment based upon the unknown amount of what she took. I think under Evidence Code 352 it would cause great confusion, require the calling of additional experts for all of those reasons, and therefore, it’s going to be excluded for those reasons.” A trial court has discretion under Evidence Code section 352 to determine whether impeachment evidence should be admitted. (People v. Clark (2011) 52 Cal.4th 856, 931.) Under Evidence Code section 352, a trial court “may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” “A trial court’s ruling to admit or exclude evidence offered for impeachment is reviewed for abuse of discretion and will be upheld unless the trial court ‘exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.’ ” (People v. Ledesma (2006) 39 Cal.4th 641, 705.) In that regard, “[t]rial judges retain ‘wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant.’ ” (Ibid.) 6  As a general matter, the application of ordinary rules of evidence, including Evidence Code section 352, does not infringe on the right to present a defense. (People v. Hall (1986) 41 Cal.3d 826, 834.) Indeed, notwithstanding the confrontation clause, a trial court may restrict cross-examination of a witness based on Evidence Code section 352. (People v. Quartermain (1997) 16 Cal.4th 600, 623.) “As we have advised, ‘courts may and should consider with particular care whether the admission of [impeachment] evidence might involve undue time, confusion, or prejudice which outweighs its probative value.’ ” (People v. Clark, supra, 52 Cal.4th at p. 932.) As relevant here, “[e]vidence of a witness’s drug use is inadmissible unless the testimony ‘tends to show that the witness was under the influence thereof either (1) while testifying, or (2) when the facts to which he testified occurred, or (3) that his [or her] mental faculties were impaired by the use of such narcotics.’ ” (People v. Panah (2005) 35 Cal.4th 395, 478.) When the allegation is that the witness was under the influence at the time of the crime, our state Supreme Court has concluded that “[e]vidence of consumption of narcotics is admissible for impeachment purposes if there is expert testimony substantiating the effects of such use.” (People v. Rocha (1971) 3 Cal.3d 893, 901.) The trial court’s decision to prohibit defendant from cross-examining Alejandra on the results of the urinalysis was not arbitrary, capricious, or patently absurd. As we will explain, defense counsel did not make a sufficient offer of proof to support his request. As such, it was appropriate for the court to determine that asking Alejandra about her “own state of mind and what she ingested” would confuse the jury under Evidence Code section 352. “Where the trial court is considering a ruling or has made a ruling that certain evidence is inadmissible, the party offering the evidence may make an ‘offer of proof’ to explain its ‘substance, purpose, and relevance.’ [Citing Evid. Code, § 354, subd. (a).] The ‘ “evidence” ’ in an offer of proof shall consist of ‘ “testimony, writings, material 7 objects, or other things presented to the senses.” ’ ” (In re A.G. (2020) 58 Cal.App.5th 973, 996, italics omitted.) “ ‘ “The offer of proof must be specific in its indication of the purpose of the testimony, the name of the witness, and the content of the answer to be elicited. The judge may properly reject a general or vague offer which does not indicate with precision the evidence to be presented and the witnesses who are to give it ....” ’ ” (In re A.G., supra, 58 Cal.App.5th at p. 996.) “A proper offer of proof must ‘ “set forth the actual evidence to be produced” ’ and the ‘ “ ‘substance, purpose, and relevance of the ... evidence.’ ” ’ ” (Id. at p. 997.) The support for defendant’s request to cross-examine Alejandra about her “own state of mind and what she ingested” consisted of defense counsel’s statements that her urinalysis results “confirmed the presence of oxycodone and hydrocodone” and his claim that “it’s possible that the [opioids] could have influenced her perceptions in such a way that led her to think something criminal was happening when it was not.” These statements are not evidence. (Muskan Food & Fuel, Inc. v. City of Fresno (2021) 69 Cal.App.5th 372, 389 [“Statements by an attorney, whether made in court or in a brief, are not evidence”].) Nor do they provide the specificity required to make an adequate offer of proof. Indeed, counsel left a lot to be desired in his offer of proof. For example, counsel did not proffer any information on how Alejandra would answer his questions. It is possible that she took her pain medication after the rape, which would make any questions related to her urinalysis irrelevant. It is also possible that Alejandra took a prescription pain medication several days or more before the rape and that the drug was still in her system but was such a low amount that it did not alter her state of mind. Although Alejandra could answer perhaps a few questions on this topic, as the trial court pointed out, an expert witness would also be needed to establish the finer details. (People v. Rocha, supra, 3 Cal.3d at p. 901 [“[e]vidence of consumption of narcotics is 8 admissible for impeachment purposes if there is expert testimony substantiating the effects of such use”].) Counsel would also need another witness to authenticate the urinalysis results, which would require review by the expert so he or she could opine on whether the amount of drugs shown in the report to be in Alejandra’s system was enough to cause any altered perceptions or memory issues. Undoubtedly, the People would want time to review any expert opinions and be given the opportunity to respond with their own expert witness and/or extensive cross-examination. Had the trial court permitted defendant to ask Alejandra these questions, it would have necessitated additional testimony, documents, and argument to fully resolve. Importantly, the trial court did not prohibit defendant from cross-examining Alejandra about the results of her urinalysis, without giving defendant an opportunity to establish a basis for such cross-examination. Rather, the trial court found that the proposed defense cross-examination would cause confusion because of the lack of sufficient evidence proffered by defendant’s counsel at the hearing as opposed to pure speculation concerning the significance of the results of the urinalysis. Given these deficiencies, counsel’s offer of proof failed to include “ ‘ “testimony, writings, material objects, or other things presented to the senses” ’ ” necessary to establish the substance, purpose, and relevance of the evidence. (In re A.G., supra, 58 Cal.App.5th at p. 996.) Thus, the trial court did not abuse its discretion when it found that simply asking Alejandra about her “own state of mind and what she ingested” would be confusing to the jury under Evidence Code section 352. II Judicial Misconduct Defendant contends that the trial court committed misconduct when it admonished him for delaying trial during a restroom break. Defendant claims that he has numerous 9 disabilities and the trial court’s comments that it would “deprive him of future bathroom breaks if he took longer than the court deemed” acceptable was prejudicial because the trial court’s “ire…likely enhanced [his] existing anxiety and influenced his subsequent decision not to testify in his own defense.” Because defendant failed to object to the trial court’s comments, the issue has been forfeited. Additional Background In the morning during the first day of evidence at trial, the trial court released the jurors for lunch and then kept the parties and defendant back to address “the issue of time and [defendant] specifically.” The trial court said, “We take a 15-minute break. We take a 15-minute break in the morning and in the afternoon. 15 minutes is more than enough time for you to be walked over to the holding tank, use the restroom if you need to and get back here to court. It took 35 minutes. And I am not going to have jurors, witnesses or this court be delayed for 35 minutes for every break we take morning and afternoon. So if you cannot be back here in 15 minutes -- and we were advised that halfway to holding you just stopped and you would not walk. If you cannot be back here in 15 minutes, you are either going to remain in the courtroom during the breaks or we will have to make other arrangements. But we are not going to be delayed for that long during our breaks because of your ability to walk to the holding tank, which up until now has not been an issue. We’ve been able to get you back and forth within the 15 minutes for every court appearance we’ve had so far.” When defendant responded that he was a “little confused,” the trial court said, “Okay. You can speak to your attorney about it, but you will remain in the courtroom during our breaks if you can’t get back here in 15 minutes. So your new use of a walker over the past week where you didn’t need one prior should not inhibit you from walking across the hall and back in 15 minutes.” 10  Forfeiture Failure to object to the trial court’s remarks ordinarily forfeits a claim of judicial misconduct on appeal, unless objection could not have cured the prejudice or would have been futile. (People v. Houston (2012) 54 Cal.4th 1186, 1220.) Here, defendant did not object to the trial court’s comments. We disagree with defendant that this failure does not preclude review. The record shows that defendant stopped walking on his way to the holding tank during the morning break. There is no indication that defendant was unable to walk or that this pause was related in any way to his disabilities or use of the walker. In any event, assuming for sake of argument that defendant was unable to walk faster or get back to court within the allotted timeframe for the break, defendant had the opportunity to explain as much to the trial court. He did not do so. There is no ascertainable reason to believe that the trial court would not have accommodated defendant if he correlated his disabilities with the length of time it took him to return from break. An objection would therefore not be futile. Defendant nonetheless asks us to exercise our discretion to consider this claim because it affects his substantial rights. According to defendant, the trial court’s comments “violated [his] dignity and constitutional rights in ways that foreseeably impaired his decision-making at trial.” Specifically, defendant claims that the trial court’s comments “likely enhanced” his anxiety and “influenced his subsequent decision not to testify in his own defense.” This is not supported in the record. Instead, defendant and his attorney explained that defendant declined to testify because he was concerned about his health. Defendant suffered from vertigo, posttraumatic stress disorder, short-term memory, and high blood pressure. When the trial court asked defendant for confirmation that he did not want to testify, defendant responded, “That’s why I don’t want to testify, because I get 11 traumatized. I get traumatized, and I could get a heart attack.” Thus, no connection was established between the trial court’s admonition about the restroom breaks and defendant’s separate decision not to testify. We therefore fail to see how defendant’s substantial rights were violated by the trial court’s comments. Accordingly, defendant’s failure to object here precludes review on appeal. III Upper Term Sentences Defendant contends that the trial court violated his Sixth Amendment right to a jury trial by imposing upper term sentences based on an aggravating factor—that his prior convictions were numerous and of increasing seriousness under rule 4.421(b)(2)— that was not proven beyond a reasonable doubt to a jury. The People agree, as do we. However, the parties disagree on whether this error was harmless. Defendant argues that his two misdemeanors and single felony from years ago are not numerous and that a rational juror could have concluded that his prior convictions have not increased in seriousness. Without this aggravating factor, defendant concludes that the trial court may not have imposed upper term sentences, and he requests remand for resentencing. We agree. Additional Background In a bifurcated bench trial, the trial court found true that defendant suffered a misdemeanor battery conviction in 2004 (§ 242) for which defendant was sentenced to three days in county jail and one year of probation and a misdemeanor driving under the influence conviction in 2004 (Veh. Code, § 23152, subd. (b)) for which defendant was sentenced to five years of probation and an unidentified amount of time in county jail. Defendant was also convicted of two felonies stemming from the same case in 2011 including felony false and fraudulent statements for the purpose of reducing the cost of workers’ compensation insurance (Ins. Code, § 11880, subd. (a)), and felony willful 12 failure to file payroll taxes (Unemp. Ins. Code, § 2117.5) for which defendant was sentenced to 180 days in jail and five years of probation. The People argued that defendant’s prior convictions, along with his current convictions of rape, sexual penetration, and attempted sodomy, establish that his crimes have increased in seriousness. Defendant claimed that the prior convictions were “old” and that there was an extended period—between the 2011 felonies and his current convictions in 2024—where he was a productive member of the community. The trial court agreed with the People and held that “[t]he current charges are serious and violent…including rape, digital penetration and attempted sodomy. Looking at the progression of crimes and the time in between crimes, I do find that the defendant’s convictions are numerous and increasing in seriousness under Rule of Court 4.421(b)(2) beyond a reasonable doubt.” The trial court imposed upper term sentences on all three counts based on the aggravating factor it found true and the aggravating factor found true by the jury that defendant took advantage of a position of trust or confidence to commit the offense. (Rule 4.421(a)(11).) Rule 4.421 sets forth aggravating circumstances a court may consider when sentencing a defendant. As relevant here, one such aggravating circumstance is that the “defendant’s prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness.” (Rule 4.421(b)(2).) Section 1170, subdivision (b)(2) provides that, in selecting a term of imprisonment, a trial court “may impose a sentence exceeding the middle term only when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term and the facts underlying those circumstances have been stipulated to by the defendant or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial.” Notwithstanding this rule, a “court may consider the defendant’s prior convictions in determining sentencing based on 13 a certified record of conviction without submitting the prior convictions to a jury.” (§ 1170, subd. (b)(3).) “[W]ith the exception of prior conviction allegations, ‘under the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury’ and ‘established beyond a reasonable doubt.’ ” (People v. Lynch (2024) 16 Cal.5th 730, 747 (Lynch); Cunningham v. California (2007) 549 U.S. 270, 281.) In Lynch, our Supreme Court explained that, under section 1170, subdivision (b), “a Sixth Amendment violation occurs when the trial court relies on unproven aggravating facts to impose an upper term sentence, even if some other aggravating facts relied on have been properly established.” (Lynch, at p. 768.) Further, in Erlinger v. United States (2024) 602 U.S. 821, the United States Supreme Court rejected the argument that the prior conviction exception to the Sixth Amendment “permits a judge to find perhaps any fact related to a defendant’s past offenses.” (Id. at p. 837.) Rather, “a judge may ‘do no more, consistent with the Sixth Amendment, than determine what crime, with what elements, the defendant was convicted of.’ ” (Id. at p. 838.) We agree with the parties that defendant’s Sixth Amendment right to a jury trial was violated when the court found that his convictions were numerous and increasingly serious within the meaning of rule 4.421(b)(2). The trial court imposed upper term sentences even though this aggravating factor had not been proven in accordance with section 1170, subdivision (b)(2), and even though the prior conviction exception would not apply to this aggravating fact. (See People v. Wiley (2025) 17 Cal.5th 1069 (Wiley) [“We understand Erlinger to require that any fact, beyond the bare fact of a prior conviction, that exposes a defendant to harsher punishment, must be found by a jury beyond a reasonable doubt,” id. at pp. 1083-1084]; cf. id. at p. 1085, fn. 9] [discussing whether the “numerical tally” of a defendant’s prior convictions falls within the prior conviction exception but declining to address the issue].) 14  Harmless Error A trial court’s reliance on aggravating circumstances not found in accordance with section 1170, subdivision (b) is “prejudicial unless an appellate court can conclude beyond a reasonable doubt that a jury would have found true all of the aggravating facts relied upon by the trial court to justify an upper term sentence, or that those facts were otherwise proved true in compliance with the current statutory requirements. If the reviewing court cannot so determine, applying the Chapman [v. California (1967) 386 U.S. 18 (Chapman)] standard of review, the defendant is entitled to a remand for resentencing.” (Lynch, supra, 16 Cal.5th at p. 768.) When assessing prejudice under Chapman, the proper inquiry is “ ‘whether any rational fact finder could have come to the opposite conclusion.’ ” (Wiley, supra, 17 Cal.5th at p. 1090.) If a rational juror could have reached the opposite conclusion, the error is not harmless under Chapman. (Ibid.) The People bear the burden of establishing that the federal constitutional error was harmless beyond a reasonable doubt. (People v. Avalos (2022) 85 Cal.App.5th 926, 953.) Here, the trial court found that defendant’s prior convictions were both numerous and of increasing seriousness. The wording of the rule is disjunctive and requires the trial court to find either that a defendant’s prior convictions are numerous or that they are of increasing seriousness. (Rule 4.421(b)(2).) Thus, to assess whether the error here was prejudicial, we must consider each of the trial court’s rulings. Numerosity We begin with whether a jury could have disagreed as to whether defendant’s prior convictions were numerous. Our Supreme Court has cautioned against attempting to determine whether a jury would have found true aggravating circumstances that require “ ‘ “an imprecise quantitative or comparative evaluation of the facts.” ’ ” (Lynch, supra, 16 Cal.5th at pp. 775-776.) “ ‘ “[T]o the extent a potential aggravating 15 circumstance ... rests on a somewhat vague or subjective standard, it may be difficult for a reviewing court to conclude with confidence that, had the issue been submitted to the jury, the jury would have assessed the facts in the same manner as did the trial court.” ’ ” (Id. at p. 775.) Bearing this guidance in mind, we cannot conclude, beyond a reasonable doubt, that a jury would have determined that defendant’s prior convictions were “numerous” as we cannot confidently say where the jury would have drawn the line for what constitutes “numerous.” A rational juror could have concluded that defendant’s prior convictions were not numerous. Increasing Seriousness As to whether defendant’s prior convictions are “of increasing seriousness,” the Wiley court explained that “the inquiry requires a comparison and evaluation of the relationship among a defendant’s prior convictions, and a determination as to their relative seriousness.” (Wiley, supra, 17 Cal.5th at p. 1082.) A fact finder can assess the increasing seriousness of a defendant’s prior convictions by comparing the range of punishment or the elements of respective offenses. (Ibid.) Here, the People presented the trial court with a certified record of defendant’s prior convictions including misdemeanor battery, misdemeanor driving under the influence, felony workers’ compensation insurance fraud, and felony failure to file payroll taxes. The range of punishments for these crimes includes imprisonment in county jail for no more than six months for the misdemeanor battery and driving under the influence convictions (§ 19; Veh. Code, § 23536, subd. (a)); no more than one year in county jail for the failure to file payroll taxes (Unemp. Ins. Code, § 2117.5); and up to five years for the false or fraudulent statement conviction (Ins. Code, § 11880, subd. (a)). 16  Defendant’s current convictions carry sentences of up to four years for attempted sodomy (§§ 664, 286, subd.(c)) and eight years each for rape (§ 261, subd. (a)(2)) and sexual penetration (§ 289, subd. (a)(1)). A jury could find support for a determination that the current offenses are of increasing seriousness because the range of punishments for the crimes increased over time from six months in jail to eight years in prison. However, depending on the details of each offense, a jury might conclude that driving under the influence is more serious than battery, and in turn, that insurance fraud is more serious than driving under the influence. If, for example, defendant spit on someone for the misdemeanor battery charge, a jury may find that to be a more serious offense than driving under the influence if defendant had a glass or two of wine at dinner and got pulled over as he left the parking lot of a restaurant. Or, if perhaps defendant was pulled over near an open elementary school for drunk driving, a jury might conclude that offense was more serious than defendant making false and fraudulent statements to reduce the cost of workers’ compensation insurance or failing to file payroll taxes. In these scenarios, a jury may conclude that defendant’s prior convictions were not increasing in seriousness. The record in this case provides no details on defendant’s prior convictions so we can make no such determination here. We therefore decline to conclude beyond a reasonable doubt that a jury would have found defendant’s prior convictions were of increasing seriousness. And, because we also conclude that a rational juror could have found that defendant’s prior convictions were not numerous, the lack of a jury trial as to this aggravating factor is not harmless and reversal is required. (See Wiley, supra, 17 Cal.5th at p. 1087; Lynch, supra, 16 Cal.5th at p. 768.) 17  IV Sentence for Attempted Sodomy Defendant contends that the trial court erred in imposing a full-term consecutive sentence for attempted sodomy (count 3) under section 667.6, subdivision (c), because the offense is not a statutorily enumerated sex offense under subdivision (e) of the same statute. Defendant argues that the trial court should have sentenced him on count 3 as a subordinate term under section 1170.1, at one-third the middle term, and therefore seeks a reduction in the sentence imposed on count 3 from four years to one year. We agree there was sentencing error but disagree that defendant’s sentence must be reduced under section 1170.1. Additional Background The trial court sentenced defendant to full-term consecutive sentences for all three counts, stating, “The defendant has been convicted of violent sex crimes committed against a single victim on the same occasion, and may be sentenced to full separate consecutive terms pursuant to Penal Code Section 667.6[, subdivision](c), and that is what the Court intends to do.” The court also found that consecutive sentences were appropriate under rule 4.425(a)(1) and (2) because “the crimes and their objectives were predominantly independent of each other and separate acts of violence toward Alejandra Doe.” Defendant was sentenced to four years on count 3 as the principal term with eight years each for counts 1 and 2 to run consecutively for a total aggregate term of 20 years. Forfeiture Although defendant did not object at the sentencing hearing, we reject the People’s contention that this issue has been forfeited. Although defendant should have objected to the trial court’s discretionary sentencing choice here, People v. Scott (1994) 9 Cal.4th 331, 355, we will nonetheless consider the issue because, as we will explain, 18 the error presented is “so obvious and so easily fixable that correction of th[is] error[] in the absence of an objection at sentencing” is appropriate. (People v. Smith (2001) 24 Cal.4th 849, 852-854.) A. Applicable Law When sentencing a defendant who was convicted of multiple felonies to consecutive sentences, a trial court generally must follow section 1170.1. That section provides the default “formula for determining consecutive terms of imprisonment for persons convicted of two or more felonies.” (People v. Pelayo (1999) 69 Cal.App.4th 115, 123.) The court designates one conviction to represent the “principal term,” and the remainder are designated the “subordinate terms.” (Ibid.) The court sentences the defendant on the principal term to a low, middle, or upper term for the respective crime. (§ 1170.1, subd. (a).) The court then sentences the defendant on the subordinate terms. Subordinate terms are limited to one-third of the middle term of imprisonment prescribed for each remaining felony conviction. (Ibid.) However, a court need not abide by the sentencing structure of section 1170.1 when sentencing a defendant who has been convicted of certain sex offenses. Section 667.6 provides an alternative sentencing structure when a defendant has been convicted of, as relevant here, rape and sexual penetration. (§ 667.6, subds. (e)(1), (8).) “The Legislature enacted section 667.6 in 1979 to significantly increase prison terms for persons convicted of certain violent sex offenses.” (People v. Pelayo, supra, 69 Cal.App.4th at p. 123.) However, these offenses do not include attempted sex crimes. (People v. Le (1984) 154 Cal.App.3d 1, 10-11.) When sentencing an offender convicted of section 667.6 sexual offenses, “[i]n lieu of the term provided in Section 1170.1, a full, separate, and consecutive term may be imposed for each violation ....” “If the term is imposed consecutively pursuant to this subdivision, it shall be served consecutively to any other term of imprisonment .... The term shall not be included in any determination pursuant to Section 1170.1.” (§ 667.6, 19 subd. (c).) The court also has discretion to run a sentence on a section 667.6 offense concurrent to another section 667.6 sentence. (People v. Catarino (2023) 14 Cal.5th 748, 753.) Section 667.6, subdivision (c) “was intended to provide, in the context of violent sex offenders, a discretionary sentencing alternative to the standard consecutive sentencing for