Opinion
D074742
01-24-2020
THE PEOPLE, Plaintiff and Respondent, v. JUAN COSINERO, Defendant and Appellant.
Joanna McKim, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD271516) APPEAL from a judgment of the Superior Court of San Diego County, Charles G. Rogers and Albert T. Harutunian III, Judges. Affirmed. Joanna McKim, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found 35-year-old defendant Juan Cosinero guilty on six counts of sex offenses stemming from the molestation and rape of his ex-girlfriend's 13-year-old daughter. The trial court sentenced Cosinero to an indeterminate term of 15 years to life, and a determinate term of 30 years. The court also ordered him to pay $10,874 in assessments, fees, and fines. Cosinero raises several issues on appeal.
First, Cosinero contends the trial court erroneously responded to questions the jury posed during deliberation. We conclude Cosinero has not met his burden of showing prejudicial error.
Second, Cosinero contends the prosecutor engaged in misconduct during closing argument by burden-shifting and eliciting sympathy for the victim. To the extent this contention is preserved for appeal, we conclude it lacks merit.
Third, Cosinero contends he was improperly convicted of both a greater offense and lesser included offense arising from the same conduct. We disagree with Cosinero's underlying assumption that the challenged offense is, in fact, a lesser included offense of the other, and therefore reject this contention.
Fourth, Cosinero contends the trial court erred by failing to provide an adequate explanation for its decision to impose consecutive, full-strength, upper-term sentences on three of his convictions for committing forcible lewd acts on a child under 14. Cosinero forfeited this challenge by failing to raise it during the sentencing hearing. And even if the challenge were preserved for appeal, we would conclude Cosinero has not met his burden of showing prejudicial error.
Finally, Cosinero contends the trial court erred by ordering him to pay assessments, fees, and fines without first determining whether he had the ability to pay them, allegedly in violation of his due process rights as enunciated in the recent decision of People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). We conclude Cosinero forfeited this challenge under traditional forfeiture principles.
Accordingly, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Charges
In November 2016, 13-year-old Dulce G. reported to her mother (Mother) that Cosinero sexually assaulted her. Cosinero was arrested and charged with nine sex offenses:
Count 1: Aggravated sexual assault (based on the underlying offense of forcible rape) on a child who is under 14 and is seven or more years younger than the perpetrator (Pen. Code, § 269, subd. (a)).
Count 2: Forcible rape (§ 261, subd. (a)(2)), with the enhancement allegation that the victim was under 14 (§ 264, subd. (c)(1)).
Count 3: Forcible oral copulation (former § 288a, subd. (c)(2)(A)), with the enhancement allegation that the victim was under 14 (former § 288a, subd. (c)(2)(B)).
Count 4: Forcible lewd act on a child under 14, "to wit: penis to vagina" (§ 288, subd. (b)(1)).
Count 5: Forcible lewd act on a child under 14, "to wit: mouth to vagina" (§ 288, subd. (b)(1)).
Count 6: Forcible lewd act on a child under 14, "to wit: mouth to chest" (§ 288, subd. (b)(1)).
Count 7: Forcible lewd act on a child under 14, "to wit: hand to chest" (§ 288, subd. (b)(1)).
Count 8: Forcible lewd act on a child under 14, "to wit: kissing on mouth" (§ 288, subd. (b)(1)).
Count 9: Lewd act on a child under 14, "to wit: hand to vagina" (§ 288, subd. (a)), with the enhancement allegation that substantial sexual contact occurred (§ 1203.066, subd. (a)(8)).
Further undesignated statutory references are to the Penal Code.
Former section 288a was renumbered as section 287, effective January 1, 2019. (Stats. 2018, ch. 423, § 49 (Sen. Bill No. 1494).)
The Prosecution Case
Dulce's Testimony
In about 2010, Mother and her infant daughter, Emily, moved from Guatemala to the United States, leaving Dulce (then about seven) and her brother Jose (then about six) behind with their grandmother. Mother met Cosinero, and they had a son (Dillon) together in about 2015, but the parents' relationship did not last.
In 2016, Dulce, Jose, and their grandmother moved to the United States. Dulce, her siblings, and Mother all lived together in one room of an apartment in San Diego. A tenant lived in another room of their apartment unit. Cosinero, then 35, would visit Dillon daily at the apartment, sometimes staying overnight. Dulce was shy and did not speak much to Cosinero.
On November 19, 2016, Mother left for work around 9:00 p.m. Dulce was listening to music in her bed, wearing pajamas, underwear, and a bra. In the same room, Cosinero was watching television, and Emily and Dillon were sleeping. Jose was sleeping at his uncle's house that night.
At one point, Cosinero stood up, put a blanket on Dillon, then got on Dulce's bed. Dulce scooted against the wall toward the corner of her bed to get away from Cosinero, but he grabbed her. She moved away again and told him not to grab her. Cosinero grabbed Dulce's hands, put them behind her back, and got on top of her. Dulce could not move.
Cosinero pushed up Dulce's bra and touched both of her breasts with his hands. He then sucked on one of her breasts. Dulce began to cry and told Cosinero to stop, but he said, "I'm going to do it." Dulce tried to get away but was unable to because Cosinero had "all of his weight on top of" her.
Cosinero began to kiss Dulce on the mouth. She covered her mouth and told him to stop, but Cosinero said he "was going to kiss [her]" and he put his tongue in her mouth. Dulce was crying hard and tried to get away, but Cosinero turned up the volume on the television, told her to stop crying, and threatened that he would hit her if she ran or told anyone. Dulce was afraid he would hurt her, so she stopped crying. Cosinero repeated a similar threat during the encounter.
Cosinero then removed Dulce's pajama bottoms and underwear and touched her legs. She began to cry again.
When Cosinero stopped touching Dulce's legs, he inserted his penis into her vagina, which hurt and felt "[u]gly" to her. Dulce "was moving to try to escape, but [Cosinero] told [her] not to move because he was going to hurt [her]," so she stopped moving. Dulce did not remember how long Cosinero's penis was inside of her. She did not know what ejaculation meant.
After the intercourse, Cosinero sucked on Dulce's vagina, using his fingers to spread it open. Dulce tried to move away and told Cosinero to stop, but he said "no," "he was going to keep on doing it."
When Cosinero was done, he gave Dulce her clothes and went to the bathroom. Dulce tried to wake Emily, who, along with Dillon, had been sleeping in the same room the whole time. Emily did not wake up.
Dulce sent a text message to Jose. She intended to write, "Jose, Juan molested me," but, because of nerves and fear, she accidentally wrote, "Jose, Juanito wanted to molest my brother."
After Cosinero exited the bathroom, he spent the night at the apartment. Dulce felt "ugly," so she put on her headphones, listened to music, and fell asleep.
The next morning, Cosinero showered and left for work. Mother woke Dulce and asked her what was wrong. Because of Cosinero's threats, Dulce lied and said nothing was wrong. Mother saw that Dulce was bleeding, but Dulce explained she thought it was from her period. Later, when Mother and Dulce were at the laundromat, Dulce told her Cosinero had molested her. Dulce was crying and emotional.
Mother called the police, but kept asking Dulce, "are you sure?" Dulce became mad and said, "yes."
After Mother called the police, Cosinero called Mother. Dulce overheard him ask Mother if Dulce had taken a shower. Dulce had not showered, but Mother told him she had. Cosinero responded, "okay."
Dulce was transported to the hospital for a sexual assault response team (SART) exam. The exam hurt and Dulce cried. Dulce explained Mother's reaction to the findings: "When the . . . female doctor told my mother that she was not seeing anything, that nothing had happened, that I was the one that wanted it, and I told my mother, it wasn't because I wanted it. The man told me, [']if you move, I'll hurt you and I'll hit you.['] " Forensic Evidence
We discern from our review of the record, as a whole, that Dulce was referring to Mother—not the doctor—as the person who said Dulce "was the one that wanted it."
The pediatrician who conducted Dulce's SART exam testified that although the result was "normal," such a result "is expected in about 90 percent of sexual assault cases." In other words, the results did not contradict Dulce's reported history—"[i]t just means it's normal to be normal."
As part of the SART exam, medical staff swabbed Dulce's vagina and cervix. Investigators obtained reference DNA samples from Dulce, Cosinero, and Jose. A criminalist analyzed those samples against the vaginal and cervical swabs. Jose was excluded as a contributor from all samples.
Analysis of one of the cervical swabs indicated a mixture of male and female DNA, 99 percent of which belonged to Dulce, and the remaining one percent of which was consistent with Cosinero. The criminalist performed a statistical analysis that "determined that it's 80,700 times more likely . . . that the DNA is coming from Juan Cosinero, than it is DNA coming from someone other than him." Results of other DNA analyses were also consistent with Cosinero being the male contributor, though those results were less statistically significant.
The Defense Case
Cosinero did not testify, but he called two defense witnesses.
The tenant who rented a room in Dulce's apartment unit testified that on the night in question, he did not hear anybody cry, scream, or yell. When police came to the apartment the next day, he was "shocked to hear what happened." When he later asked Dulce why she had not yelled for help, she did not respond. He acknowledged on cross-examination, however, that Dulce " was . . . kind of in shock" and sometimes seemed sad after the incident.
A forensic psychologist conducted a psychosexual evaluation of Cosinero. The psychologist administered a validated test (the Multiphasic Sex Inventory II) consisting of 560 true/false questions, but Cosinero responded "false" to so many questions that the test administrator deemed his results "compromised" and "that the test-taking behavior was deceptive or uncooperative." The psychiatrist opined the invalid result was due to Cosinero's "obvious" illiteracy and "pride in not . . . wanting to say he didn't understand . . . ."
The psychiatrist further opined Cosinero did not exhibit any signs of sexual deviancy, interest in minors, or predisposition to child molestation. However, the psychologist acknowledged on cross-examination that "it's very clear you don't have to be someone who suffers from a sexual deviancy disorder . . . to have committed a sexual crime. Sexual crimes can be committed by many, many different people under many, many different circumstances, and based on different dynamics."
Jury Verdicts and Sentencing
The jury found Cosinero guilty of aggravated sexual assault (count 1), four counts of forcible lewd acts (counts 4 and 6-8), and lewd act on a child (count 9). The jury found true the enhancement allegation attached to count 9 that Cosinero had substantial sexual contact with Dulce.
The jury did not return a verdict on the forcible rape count (count 2) because it was the lesser included predicate offense of the aggravated sexual assault count. The jury was unable to reach verdicts on the charges for forcible oral copulation (count 3) and forcible lewd act, "to wit: mouth to vagina" (count 5). The court declared a mistrial as to those counts and dismissed them in the interest of justice.
The trial court sentenced Cosinero to a total determinate prison term of 30 years, plus an indeterminate term of 15 years to life, consisting of the following: consecutive, full-strength, 10-year upper-term sentences for each of the four forcible lewd act convictions, one of which was stayed under section 654; a concurrent six-year term for the lewd act conviction; and a consecutive term of 15 years to life on the aggravated sexual assault conviction.
The forcible lewd act count based on "penis to vagina" (count 4) was stayed as duplicative of the aggravated sexual assault count (count 1) based on the same conduct.
The trial court also ordered Cosinero to pay the following fines, fees, and assessments: a $10,000 restitution fine (§ 1202.4, subd. (b)); a $300 sex offender registration fine (§ 290.3); a $154 criminal justice administration fee (Gov. Code, § 29550 et seq.); a $240 court operations assessment (§ 1465.8); and a $180 conviction assessment (Gov. Code, § 70373). The court ordered Cosinero to reimburse the victim restitution fund $1,230.
DISCUSSION
I. The Trial Court's Answers to the Jury's Questions Were Not Prejudicially Erroneous
Cosinero contends the trial court erred prejudicially in its responses to two questions the jury posited during deliberation. First, the jury asked whether the provision in the instructions pertaining to the forcible lewd act counts that "[i]t is not a defense that the child may have consented to the act" also applied to the aggravated sexual assault count. The trial court responded, in part, "Yes. Consent of the victim is not a defense when the victim of a sex crime is a child under age 14." Cosinero contends this was a misstatement of the law regarding an element of the charged offense, subject to review under the heightened Chapman beyond-a-reasonable-doubt standard applicable to federal constitutional error. (Chapman v. California (1967) 386 U.S. 18, 24 ["before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt"].) For reasons will explain, we need not determine whether the trial court's response was legally erroneous because even if it was, the error was harmless even under Chapman.
Second, in the context of forcible rape, the jury asked, "Does duress fall under the umbrella of force?" The court responded, "No. They are separate ways in which the crime of rape may be committed provided the other required elements are also proved." The court continued its response by explaining that the force/duress element of rape is established if any of the following are proven: "force, violence, duress, menace, or fear of immediate unlawful bodily injury to the woman or to someone else." Cosinero does not contend this response was legally erroneous; he contends only that it drew undue attention to this element of the offense. For reasons we will explain, we disagree.
A. Background
1. Jury Instructions
Cosinero was charged in count 1 with aggravated sexual assault (§ 269, subd. (a)) based on the qualifying predicate offense of forcible rape (§ 261, subd. (a)(2)). The court instructed the jury on count 1 with CALCRIM No. 1123 as follows:
Section 269, subdivision (a) states in part: "Any person who commits any of the following acts upon a child who is under 14 years of age and seven or more years younger than the person is guilty of aggravated sexual assault of a child: [¶] (1) Rape, in violation of . . . section 261[, subdivision (a)(2) or (a)(6)]."
"To prove that the defendant is guilty of this crime, the People must prove that:
"1. The defendant committed forcible rape on another person; AND
"2. When the defendant acted, the other person was under the age of 14 years and was at least seven years younger than the defendant.
"To decide whether the defendant committed forcible rape, please refer to the separate instruction (CALCRIM [No.] 1000) that I will give you on that crime."
As to forcible rape, which was both the underlying offense of count 1 and a standalone offense charged in count 2 (though the jury was properly instructed that it was a lesser included offense of count 1), the court instructed the jury on the elements of the offense using CALCRIM No. 1000, which states in part:
"To prove that the defendant is guilty of this crime, the People must prove that:
"1. The defendant had sexual intercourse with a woman;
"2. He and the woman were not married to each other at the time of the intercourse;
"3. The woman did not consent to the intercourse; [¶] AND
"4. The defendant accomplished the intercourse by force, violence, duress, menace, or fear of immediate and unlawful bodily injury to the woman or to someone else."
During the jury instruction conference, and in light of the third element of rape (lack of consent), defense counsel requested that the court include in CALCRIM No. 1000 the optional, bracketed language defining "consent" (i.e., "a woman must act freely and voluntarily and know the nature of the act") and explaining that the "defendant is not guilty of rape if he actually and reasonably believed that the woman consented to the intercourse." The prosecutor argued this optional language was unwarranted because the defense theory was not that the alleged intercourse "was consensual," it was "that [it] didn't happen." The defense argued the language was supported by "circumstantial evidence by inference" because Dulce testified the intercourse did not occur until "after she stop[ped] wiggling, moving, crying, [and] hitting"; that is, "after her conduct significantly changed."
The trial court (Judge Harutunian) granted the defense request and included the following rape-related definitions in CALCRIM No. 1000:
"Sexual intercourse means any penetration, no matter how slight, of the vagina or genitalia by the penis. Ejaculation is not required.
"To consent, a woman must act freely and voluntarily and know the nature of the act. [¶] It is not required that she physically resist or fight back in order to communicate her lack of consent.
"Intercourse is accomplished by force if a person uses enough physical force to overcome the woman's will.
"Duress means a direct or implied threat of force, violence, danger, or retribution that would cause a reasonable person to do or submit to something that she would not do or submit to otherwise. When deciding whether the act was accomplished by duress, consider all the circumstances, including the woman's age and her relationship to the defendant.
"Retribution is a form of payback or revenge.
"Menace means a threat, statement, or act showing an intent to injure someone.
"Intercourse is accomplished by fear if the woman is actually and reasonably afraid or she is actually but unreasonably afraid and the defendant knows of her fear and takes advantage of it.
"The defendant is not guilty of rape if he actually and reasonably believed that the woman consented to the intercourse and actually and reasonably believed that she consented throughout the act of intercourse. The People have the burden of proving beyond a reasonable doubt that the defendant did not actually and reasonably believe that the woman consented. If the People have not met this burden, you must find the defendant not guilty."
2. Jury Questions
During deliberation, the jury submitted a note asking several questions, two of which are relevant here. First, regarding the interplay between the instructions regarding aggravated sexual assault (count 1) and forcible lewd acts (counts 4-8), the jury asked: "It is not a defense that the child may have consented to the act. This language is in counts 4, 5, 6, 7, and 8. Does this apply to count 1?" Second, the jury asked, "Does duress fall under the umbrella of force?"
The trial judge (Judge Harutunian) was not available when the jury submitted its questions, so another judge (Judge Rogers) addressed them. As to the first question regarding consent, both the prosecutor and defense counsel initially indicated the response should be "no"—that it is a defense that the child may have consented to the act. The court responded by pointing out that in People v. Soto (2011) 51 Cal.4th 229 (Soto), the Supreme Court observed in the context of the statute prohibiting lewd acts on a child (§ 288) "that California law has long recognized that consent is not a defense when the victim of a sex crime is a child under the age [of] 14." The trial court reasoned it would be "extremely anomalous" to preclude consent as a defense to lewd acts, but not for aggravated sexual assault.
Based on the trial court's exposition, the prosecutor changed her position. The defense maintained its initial position, explaining that lack of consent "absolutely" is "an added element to a forcible rape."
The defense also explained that "this was an issue that was specifically addressed [with Judge Harutunian] and we specifically left in the consent language." The prosecutor acknowledged the issue of consent had come up in the earlier jury instruction conference, albeit in a different context. The prosecutor also noted "the defense did not argue consent in closing argument," and thus "this question comes as sort of a surprise."
The trial court rejected the defense's suggestion that Cosinero "has a vested right to erroneous instructions just because they were initially given." Based on its reading of Soto, supra, 51 Cal.4th 229, and over the defense's objection, the trial court responded as follows to the jury's first question:
"Yes. Consent of the victim is not a defense when the victim of a sex crime is a child under age 14. However, the prosecution still must prove that the act was committed by force, violence, duress,
menace, or fear of immediate and unlawful bodily injury to the woman or to someone else."The trial court reasoned the last sentence should "accommodate" the defense by allowing it to argue that the "evidence that might go to [']consent['] might also go from the defense perspective to defeat the required force or duress or fear or one of those things."
Turning to the question of whether "duress fall[s] under the umbrella of force," the defense proposed that the court merely "refer [the] jury to CALCRIM [No.] 1000." The trial court responded that it is "not a fan of when trial judges automatically punt by saying, 'Look at the instructions, folks.' " Instead, the court proposed the following response:
"[N]o. They are separate ways in which the crime of rape may be committed provided the other required elements are also proved.
"Instruction 1000 defines the crime of rape by force. That instruction applies both to Count 2 and to the first element of Count 1. It specifies that the crime of rape is committed if the required act is accomplished by force, violence, duress, menace or . . . fear of immediate unlawful bodily injury to the woman or to someone else. Proof of any one of those listed circumstances is sufficient to make the crime rape, provided the other elements are also proved." (Italics added.)
The prosecutor thought this was "a very clear answer." Defense counsel said the proposed response was "fine," provided it did "not go past the word [']Count 1['] in the second paragraph" (that is, she objected to the italicized portion of the passage quoted above) because doing so "singl[es] out" this element of the offense. The prosecutor countered that the defense approach would essentially "be punting [the jury] back to the jury instruction," an approach the trial court had earlier criticized. Observing that "[t]his jury does need some handholding," the trial court responded to the jury's question with the court's initially proposed response, block-quoted above.
B. Relevant Legal Principles
" 'The court has a primary duty to help the jury understand the legal principles it is asked to apply.' " (People v. Fleming (2018) 27 Cal.App.5th 754, 766 (Fleming).) Thus, "[a]fter a jury retires to deliberate, '[s]ection 1138 imposes upon the court a duty to provide the jury with the information the jury desires on points of law.' " (People v. Franklin (2018) 21 Cal.App.5th 881, 887 (Franklin); see People v. Brooks (2017) 3 Cal.5th 1, 97; § 1138.) "However, '[w]here the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jury's request for information.' " (Brooks, at p. 97; see Fleming, at p. 766.) "Although 'comments diverging from the standard [instructions] are often risky' [citation], it is generally not acceptable for a trial court to 'merely repeat for a jury the text of an instruction it has already indicated it doesn't understand.' " (Franklin, at p. 887.)
Section 1138 states: "After the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called."
"[T]he decision to provide further instructions in response to an inquiry is reviewed for an abuse of discretion. If a supplemental instruction is given, however, its correctness presents a question of law that we review de novo." (Franklin, supra, 21 Cal.App.5th at p. 887, fn. 4; see People v. Waidla (2000) 22 Cal.4th 690, 745-746; Fleming, supra, 27 Cal.App.5th at p. 765.)
C. Analysis
We conclude the trial court did not err prejudicially in responding to the jury's questions.
Regarding the jury's question whether consent is a defense to aggravated sexual assault of a child when the underlying offense is forcible rape, the trial court did not abuse its discretion in deciding to further instruct the jury. The jury's question indicated the jury was actually confused about an apparent discrepancy between the applicable instructions. Moreover, the number and nature of the jury's other questions led the trial court to conclude the jury needed "some handholding."
The fact that a different judge had earlier decided to instruct regarding consent does not persuade us otherwise. Judge Harutunian's earlier decision was based on a factual question about whether the evidence supported instructing on consent. Judge Rogers's decision, however, was based on the abstract legal question of whether a child under 14 may ever consent to sexual intercourse with an adult. It was not an abuse of discretion for Judge Rogers to address a novel legal issue that had confused the jury.
We turn now to our de novo review of the legal correctness of the trial court's response. There certainly is dicta in Soto, supra, 51 Cal.4th 229 to support the trial court's conclusion that consent is not a valid defense to aggravated sexual assault of a child under 14 when the underlying offense is forcible rape. (See, e.g., Soto, at p. 238 ["For over 100 years, California law has consistently provided that children under age 14 cannot give valid legal consent to sexual acts with adults."].) However, this dicta arose in the context of construing a different statute (§ 288) for which—unlike forcible rape—lack of consent is not an element of the offense. (Soto, at p. 238 ["Lack of consent by the child victim is not an element of either lewd act offense defined in section 288."]; see In re M.V. (2014) 225 Cal.App.4th 1495, 1525, fn. 22 ["most of the cases citing the inability of a victim to consent to sexual activity have concluded, in addition, that lack of consent was not an element of the crime charged"].)
In contrast to the dicta in Soto, at least one Court of Appeal has held that lack of consent is an element of forcible rape even when the victim is under the age of 14. (People v. Young (1987) 190 Cal.App.3d 248, 257 ["Where, as here, the alleged victim is a child below the age of legal consent, whether the child has the capacity to 'consent' to an act of sexual intercourse . . . will usually be a question of fact."].) In this context, courts appear to distinguish between a minor's capacity to give valid legal consent (the absence of which gives rise to criminal liability for statutory rape) and the minor's giving of actual consent (the absence of which may give rise to criminal liability for forcible rape). (See Young, at p. 257, fn. 2; People v. Hillhouse (2003) 109 Cal.App.4th 1612, 1620 (Hillhouse).)
As one court explained, the significance of the distinction between legal consent and actual consent is the severity of the punishment: "[W]hen the Legislature amended the rape statute in 1970 to exclude the act of sexual intercourse with a minor, and then created the separate crime of unlawful sexual intercourse with a minor (§ 261.5), it 'implicitly acknowledged that, in some cases at least, a minor may be capable of giving legal consent to sexual relations.' [Citation.] The existence of such consent, of course, is the distinction between the crimes. Nonconsensual sexual intercourse with a minor still constitutes rape, and carries a higher penalty." (Hillhouse, supra, 109 Cal.App.4th at p. 1620; see People v. Tobias (2001) 25 Cal.4th 327, 342 (conc. opn. of George, C.J.) ["The Court of Appeal [in Young] thus properly recognized that a defendant might [commit statutory rape] without also [committing forcible rape], and that, although a minor cannot give legal consent to sexual intercourse, he or she voluntarily and willingly can participate in the act, and thus actually consent," italics added, fn. omitted].)
Ultimately, we need not decide whether the trial court's legal conclusion was correct because, even if the court erred, the error was not prejudicial on the record before us, even under the heightened Chapman standard.
First, Cosinero did not pursue a defense based on Dulce's actual consent. To the contrary, he maintained nothing happened. Indeed, the two defense witnesses supported this defense—the tenant by testifying he did not hear anything, and the psychiatrist by opining Cosinero exhibited no traits of a sexual offender. Moreover, in closing argument, defense counsel accused Dulce of fabricating her allegations because of jealousy and resentment that Cosinero "had taken her family away from her, had left her alone." Defense counsel also attempted to explain-away the presence of Cosinero's DNA on the swab taken from Dulce's cervix as "[t]ransference" from some object they had both touched, not from consensual sexual intercourse.
Second, to the extent Cosinero now argues that evidence at trial would have allowed the jury to find that Dulce actually consented to having sexual intercourse with him, the jury's necessary finding that Cosinero "accomplished the intercourse by force, violence, duress, menace, or fear of immediate and unlawful bodily injury" (CALCRIM No. 1000) persuades us beyond a reasonable doubt that the jury did not find the intercourse consensual. Indeed, in responding to the jury's question, the trial court expressly instructed the jury that although a minor victim's consent is not a defense, the "the prosecution still must prove that the act was committed by force" or some other statutorily enumerated form of coercion.
Further, although the trial court informed the jury that consent was not a defense, the prosecutor nevertheless addressed the element in her closing argument, stating, "Next is that the woman did not consent to the intercourse. Dulce told you she didn't want any of these acts to happen to her. That's further evidenced by her crying, not only on the night of the incident, but also on the stand. You could tell definitively that she did not want to have sexual intercourse with this man. So that element has also been proven." Similarly, in connection with the forcible lewd act counts, the prosecutor argued that even though the court informed the jury that "it's not a defense that the child may have consented to the act," "[w]e know that that's not the case here. . . . That's not the situation we have here."
Finally, although the trial court told the jury that consent is not a defense, the court also instructed the jury with CALCRIM No. 1000 that Cosinero's actual and reasonable belief that Dulce consented is a defense that the prosecution must affirmatively disprove. By convicting Cosinero, the jury necessarily rejected this defense. In light of this rejection, it is inconceivable that the jury would have found that Dulce had actually consented, yet also found that Cosinero did not actually or reasonably believe she had.
Thus, even if the trial court erred by telling the jury that consent is not a defense to aggravated sexual assault of a child predicated on forcible rape, the error did not prejudice Cosinero.
We likewise find no error (prejudicial or otherwise) in the trial court's response to the jury's other question—whether " 'duress' fall[s] under the umbrella of 'force.' " Cosinero does not contend the trial court's response was legally erroneous. Rather, he merely contends the response "improperly steered the jury into focusing on the additional ways that the crime could have been committed," which "was not what the jury had asked about." We are not persuaded.
As the jury was instructed, forcible rape requires that nonconsensual sexual intercourse be "accomplished . . . by force, violence, duress, menace, or fear of immediate and unlawful bodily injury to the woman or to someone else." (CALCRIM No. 1000; see § 261, subd. (a)(2).) The instruction defines force and duress (and, for that matter, menace and fear) in separate paragraphs. The fact that the jury still wondered whether they were independent concepts justified the trial court's decision to enumerate all the potential statutory bases as a means of demonstrating their independence. The trial court's doing so did not draw undue attention to this element.
II. The Prosecutor Did Not Engage in Misconduct
Cosinero contends the prosecutor engaged in prejudicial misconduct during closing arguments by shifting the prosecution's burden of proof to the defense and by eliciting sympathy for Dulce. To the extent this contention is preserved, it lacks merit.
A. Background
1. Burden-shifting
As noted, Dulce testified she overheard a phone call between Cosinero and Mother the day after the incident in which Cosinero asked Mother if Dulce had showered. Neither the prosecution nor the defense called Mother as a witness at trial.
In closing argument, defense counsel emphasized that the prosecution had not called Mother as a witness to corroborate Dulce's testimony about the phone call:
"The prosecutor talked a lot about this phone call about the shower. Dulce didn't talk to [Cosinero]. Her mom was on the phone. Where's [Mother]? Let's talk about corroboration. Where's [Mother]? Why didn't the prosecutor bring the woman who talked to [Cosinero], the woman who accused [Cosinero], the woman who called the police? If this phone call happened, where is [Mother]?"
Defense counsel later reiterated that the prosecution had not called Mother as a witness: "Individuals that were interviewed, individual[s] who . . . participated in the investigation, where are they? [Mother]? We had to call [the tenant]. [Mother]? What about the siblings, who were allegedly in the room?"
In her rebuttal, the prosecutor suggested that Mother's accusatory remarks to Dulce following the normal SART exam results (i.e., that the normal result showed Dulce "was the one that wanted it") "shows potentially why the People . . . didn't call [Mother]." Defense counsel objected, and the trial court admonished the prosecutor to limit her argument to the evidence and reasonable inferences derived from it. The prosecutor resumed her closing argument, leading to the burden-shifting objection at issue here:
"[PROSECUTOR]: I don't have to call all the witnesses that are available. In fact, there's a jury instruction about it. I don't have to present all the evidence that's available. The judge read that jury instruction to you. And it's right next to the one that says that a single witness can prove any fact. Okay? [¶] . . . [¶] And the defense could have called [Mother] too. They have subpoena power too.
"[DEFENSE COUNSEL]: Objection. Burden shifting.
"THE COURT: Overruled."
2. Eliciting Sympathy
In her initial closing argument, the prosecutor cited as a basis for Dulce's credibility the fact she had endured significant indignities as a result of reporting the sexual assault:
"Now, enduring the events the day after the assault, the fact that she went through all of that, also corroborates Dulce. If she was making this up, if she was mistaken about it, I'm guessing that she would have called a time out by the time that they're having her spread her legs and they're taking photographs of the inside of her vagina. No. She endured all of that, and the questions from her mother, and the questions from strangers, because this had happened to her. And she knew that the right thing to do was to follow through with the process. So the fact that she did follow through with the process corroborates the fact that this happened."
The defense suggested in closing argument that Dulce fabricated her claims against Cosinero because she was resentful of Mother for moving to the United States and having a relationship with Cosinero.
In rebuttal, the prosecutor again emphasized that the circumstances evinced Dulce's credibility:
"[L]ook at all of the evidence and the totality of the circumstances analysis. You alone are the judges of credibility. You saw Dulce testify. You know what happened. Think about whether or not the witnesses have a reason to lie. Dulce has no reason to lie in this case. Look at what she's been through. Look at what she's been through. Wow. All she's had to go through for this massive lie, because she was angry that her mom made her come to the United States. It makes no sense. It's not reasonable." (Italics added.)
The defense did not object to any of the prosecutor's references to what Dulce had been through. On appeal, Cosinero challenges only the italicized portion of the passage quoted immediately above.
B. Relevant Legal Principles
" 'A prosecutor commits misconduct when his or her conduct either infects the trial with such unfairness as to render the subsequent conviction a denial of due process, or involves deceptive or reprehensible methods employed to persuade the trier of fact.' [Citation.] 'As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety.' [Citation.] 'When attacking the prosecutor's remarks to the jury, the defendant must show' that in the context of the whole argument and the instructions there was ' "a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner." ' " (People v. Rangel (2016) 62 Cal.4th 1192, 1219 (Rangel).) "In the absence of a timely objection the claim is reviewable only if an admonition would not have otherwise cured the harm caused by the misconduct." (People v. Gutierrez (2002) 28 Cal.4th 1083, 1146 (Gutierrez).)
C. Analysis
1. Burden-Shifting
The prosecutor's observation that the defense was likewise able to call Mother as a witness did not constitute misconduct. "As for [a] prosecutor's reference to witnesses not called, it is neither unusual nor improper to comment on the failure to call logical witnesses." (People v. Gonzales (2012) 54 Cal.4th 1234, 1275.) "A prosecutor may fairly comment on and argue any reasonable inferences from the evidence. [Citation.] Comments on the state of the evidence or on the defense's failure to call logical witnesses, introduce material evidence, or rebut the People's case are generally permissible. [Citation.] However, a prosecutor may not suggest that 'a defendant has a duty or burden to produce evidence, or a duty or burden to prove his or her innocence.' " (People v. Woods (2006) 146 Cal.App.4th 106, 112.)
The prosecution established through Dulce's testimony that Cosinero asked Mother whether Dulce had showered. Mother was a logical witness with whom to impeach this testimony. It was, thus, proper for the prosecutor to comment on the fact the defense had the power to subpoena her to testify at trial, yet had not done so. Nothing about the prosecutor's comment suggested the prosecution did not bear the burden of proving Cosinero guilty beyond a reasonable doubt, and the jury was properly instructed in this regard. (See CALCRIM No. 220 ["A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt."].)
2. Eliciting Sympathy
" ' "It is, of course, improper [for the prosecutor] to make arguments to the jury that give it the impression that 'emotion may reign over reason,' and to present 'irrelevant information or inflammatory rhetoric that diverts the jury's attention from its proper role, or invites an irrational, purely subjective response.' " ' [Citation.] We consider the assertedly improper remarks in the context of the argument as a whole. [Citation.] 'In conducting [our] inquiry, we "do not lightly infer" that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements.' " (People v. Covarrubias (2016) 1 Cal.5th 838, 894 (Covarrubias).)
Preliminarily, we conclude Cosinero forfeited this claim of prosecutorial misconduct by failing to object in the trial court when it occurred. (Rangel, supra, 62 Cal.4th at p. 1219; Gutierrez, supra, 28 Cal.4th at p. 1146.) We are not persuaded by Cosinero's suggestion that an "objection would have called more attention to the prosecutor's remark, making the prejudice worse." Instead, a timely objection would have given the trial court the opportunity to admonish the jury, if necessary. Accordingly, Cosinero has forfeited this challenge.
Even if we were to reach the merits, we would find them lacking. Considering the challenged statements in the proper context of the prosecutor's entire closing argument, there was no misconduct. A fair reading of the record shows the prosecutor did not cite Dulce's ordeal as a means of appealing to jurors' emotions—that is, to encourage them to convict Cosinero regardless of the evidence. To the contrary, the prosecutor cited Dulce's ordeal as a means of appealing to jurors' rationality—that is, so that they would draw the reasonable inference that it was unlikely Dulce had subjected herself to an invasive SART exam and cross-examination at trial simply because she was jealous that Mother and Cosinero once had a romantic relationship. This was not improper.
Because we conclude the prosecutor did not engage in misconduct, we reject Cosinero's contention that his trial counsel provided ineffective legal assistance by failing to object. (People v. Ochoa (2011) 191 Cal.App.4th 664, 674, fn. 8 ["Defense counsel does not render ineffective assistance by declining to raise meritless objections"].)
Moreover, it is unlikely the jury construed the prosecutor's argument as eliciting sympathy. (Covarrubias, supra, 1 Cal.5th at p. 894 [" 'we "do not lightly infer" that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements' "].) Indeed, the prosecutor, defense counsel, and the trial court all told the jurors not to do so. (See, e.g., CALCRIM No. 200 ["Do not let bias, sympathy, prejudice, or public opinion influence your decision."].) We presume the jury complied. (People v. Daveggio and Michaud (2018) 4 Cal.5th 790, 821, 859.)
III. Cosinero Was Properly Convicted of Both Aggravated Sexual Assault (Count 1)
and Forcible Lewd Act (Count 4) Based on the Same Conduct
Cosinero's conviction for aggravated sexual assault (count 1) and one of his convictions for forcible lewd act (count 4, "to wit: penis to vagina") were based on the same act of Cosinero inserting his penis into Dulce's vagina. Based on the assertion that aggravated sexual assault is a lesser included offense of forcible lewd act, Cosinero contends we must reverse the former because a defendant may not be convicted of both a greater offense and lesser included offense based on the same act. Cosinero's contention is based on a flawed premise.
As noted, the trial court sentenced Cosinero to 15 years to life on the conviction for aggravated sexual assault, and stayed punishment under section 654 on the conviction for forcible lewd act.
A defendant may generally be convicted, though not punished, for multiple crimes arising from a single act or course of conduct. (§§ 654, 954; see People v. Reed (2006) 38 Cal.4th 1224, 1230 (Reed).) However, "[a] judicially created exception to the general rule permitting multiple conviction 'prohibits multiple convictions based on necessarily included offenses.' " (Reed, at p. 1227.)
Ordinarily, courts may use two tests to determine whether one offense is a lesser included offense of another—the "elements" test and the "accusatory pleading" test. (Reed, supra, 38 Cal.4th at pp. 1227-1228.) But in Reed, the California Supreme Court held that when determining whether one offense is a lesser included offense of another for purposes of "deciding whether multiple conviction is proper, a court should consider only the statutory elements." (Reed, supra, 38 Cal.4th at p. 1229, italics added.) Put another way, " 'only a statutorily lesser included offense is subject to the bar against multiple convictions in the same proceeding. An offense that may be a lesser included offense because of the specific nature of the accusatory pleading is not subject to the same bar.' " (Ibid.; see People v. Ramirez (2009) 45 Cal.4th 980, 985 ["We apply the 'elements' test here because this case involves the conviction of multiple alternative charged offenses."].)
"Under the elements test, if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former. Under the accusatory pleading test, if the facts actually alleged in the accusatory pleading include all of the elements of the lesser offense, the latter is necessarily included in the former." (Reed, supra, 38 Cal.4th at pp. 1227-1228.)
Cosinero's multiple-conviction challenge fails here because he bases it exclusively on the disallowed accusatory pleading test. Indeed, Cosinero concedes that "under the elements test, the crime of aggravated sexual assault . . . [based on] forcible rape, as charged in [c]ount 1 is not necessarily included under . . . section 288 [as charged in count 4] since one can commit a lewd act without committing a rape . . . ." (See People v. Montero (1986) 185 Cal.App.3d 415, 433 ["forcible rape . . . [is] not [a] necessarily included offense[] of the crime of lewd and lascivious conduct"]; People v. Osuna (1984) 161 Cal.App.3d 429, 434 (Osuna) ["We recognize the crime of forcible rape is not 'necessarily included' under the provisions of section 288 [citation], i.e., one can commit a lewd act upon a child without committing rape," fn. omitted].) Cosinero's concession is fatal to his challenge.
Cosinero's reliance on the pre-Reed decision of Osuna, supra, 161 Cal.App.3d 429 is misplaced because that court appears to have applied the accusatory pleading test. (Osuna, a pp. 434, 437.) In light of Reed's subsequent mandate that we apply only the elements test, we decline to follow Osuna and question its continuing validity.
Because Cosinero concedes that aggravated sexual assault of a child is not a lesser included offense of committing a lewd act on a child under the elements test, we conclude he was properly convicted of both offenses (and properly punished for only one).
IV. No Prejudicial Error in Imposing Consecutive, Full-Strength, Upper-Term Sentences
Cosinero contends the trial court erred by imposing consecutive, full-strength, upper-term sentences on counts 6 through 8 (forcible lewd acts by "mouth to chest," "hand to chest," and "kissing on mouth," respectively) by "fail[ing] to specify how, from the evidence presented, the crimes were committed on separate occasions," and by "referr[ing] to aggravating factors" without specifying "which factors were used to justify consecutive sentences and the upper term." The Attorney General counters that Cosinero forfeited these challenges by failing to raise them during the sentencing hearing. We agree Cosinero forfeited these contentions. And even if he had not, we would find no prejudicial error.
A. Background
The probation officer filed a presentence report recommending that the trial court impose consecutive, full-strength, upper-term sentences on the forcible lewd act counts at issue here (counts 6-8). The probation officer noted that under section 667.6, subdivision (d), the trial court must impose consecutive full-strength terms "if the crimes . . . involve the same victim on separate occasions." The probation officer opined that the acts underlying Cosinero's forcible lewd act convictions occurred on "separate occasions" within the meaning of section 667.6, subdivision (d) because Cosinero "had an opportunity to reflect between each act of sexual assault and proceeded to assault the victim." (See § 667.6, subd. (d) ["In determining whether crimes against a single victim were committed on separate occasions under this subdivision, the court shall consider whether, between the commission of one sex crime and another, the defendant had a reasonable opportunity to reflect upon his or her actions and nevertheless resumed sexually assaultive behavior."].)
Because Cosinero does not challenge the sentences imposed on the other counts, we focus our discussion on the sentences imposed on counts 6, 7, and 8.
Section 667.6, subdivision (d) states in part: "A full, separate, and consecutive term shall be imposed for each violation of an offense specified in subdivision (e) if the crimes involve separate victims or involve the same victim on separate occasions." Subdivision (e)(5) of this section identifies forcible lewd act as a qualifying offense.
By contrast, under "the basic framework for California's determinate sentencing law" (People v. Woodworth (2016) 245 Cal.App.4th 1473, 1478), trial courts ordinarily have the discretion to decide between concurrent or consecutive sentences, the latter of which are imposed full-strength on the principal offense, and one-third of the midterm sentence on subordinate offenses (ibid.; see §§ 1170, 1170.1).
The probation officer identified the following circumstances in aggravation: (1) "The crime[s] involved acts disclosing a high degree of callousness" (see Cal. Rules of Court, rule 4.421(a)(1)); (2) "The sex acts were committed in the presence of the victim's younger sister and [two]-year-old brother who were asleep in the same room" (see rule 4.408(a)); (3) "The defendant took advantage of a position of trust and confidence to commit the offense" because he "was the father to the victim's two[-]year[-]old half[-]sibling and was often permitted to be inside their home" (rule 4.421(a)(11)); and (4) "The defendant threatened to hurt the victim if she reported the abuse to her mother" (rule 4.408(a)). The only circumstance in mitigation the probation officer identified was that Cosinero "has no prior record." (See rule 4.423(b)(1).)
Further undesignated rule references are to the California Rules of Court.
Rule 4.408(a) states: "The listing of factors in these rules for making discretionary sentencing decisions is not exhaustive and does not prohibit a trial judge from using additional criteria reasonably related to the decision being made. Any such additional criteria must be stated on the record by the sentencing judge."
The prosecution filed a presentencing statement agreeing that section 667.6, subdivision (d) required consecutive full-strength sentences. And, in addition to the aggravating circumstances identified by the probation officer, the prosecution identified the following circumstances: (1) Dulce was "particularly vulnerable" (rule 4.421(a)(3)) because she was "naive" inasmuch as she "did not even know what ejaculation was," and she was "very new to her living situation, having come from Guatemala just a few months earlier"; (2) the "manner in which the crime was carried out indicates planning, sophistication, or professionalism" (rule 4.421(a)(8)) because Cosinero waited for Mother to leave before attacking Dulce while she was cornered on her bed "in a position [from] which she could not escape"; (3) Cosinero "engaged in violent conduct that indicates a serious danger to society" (rule 4.421(b)(1)); and (4) Cosinero "has made no indication that he feels any remorse for his actions," "as indicated during his interview with probation" in which he "effectively called Dulce a liar and alleged that she made everything up to get him arrested."
The defense filed a sentencing memorandum arguing consecutive full-strength sentences were not required under section 667.6, subdivision (d) because the offenses were "committed at the same time" and, thus, did not meet the statutory requirement that they "involve the same victim on separate occasions." (§ 667.6, subd. (d), italics added.) As circumstances in mitigation, the defense cited Cosinero's (1) lack of a criminal record; (2) industrious employment history; (3) admirable qualities as a father; (4) provision of financial support to Mother and her children; (5) cooperation with the investigation; (6) lack of traits consistent with being a sexual predator; and (7) "impoverished and deprived life" (underlining omitted).
At the sentencing hearing, the trial court stated it had read the probation officer's report and the parties' respective sentencing statements. The victim's advocate read a letter from Dulce stating she "feel[s] bad and sad" and still has nightmares about what Cosinero did to her, and a letter from Mother asking that Cosinero be made "to pay for what [he] did . . . ."
The court then heard extensive argument from counsel about whether section 667.6, subdivision (d) required consecutive full-term sentences on counts 6, 7, and 8.
Cosinero addressed the court, stating he did not receive "fair justice" and that the process "is more corrupt than what [he] had imagined." He denied any wrongdoing and claimed Dulce's allegations are "all lies." In closing, he stated, "There will be a day for each one to render your accounts."
In rebuttal, the prosecutor reiterated that the circumstances required consecutive full-term sentences under section 667.6, subdivision (d).
The trial court stated its "intention is to impose the upper term of 10 years consecutive on counts 6, 7, and 8." The court explained its rationale:
"The court believes that the sentence on counts 6, 7 and 8 is to be run full-term consecutive—full-strength consecutive, I should say, and the court also believes that even if that were not the case, if it were left purely in the court's discretion, that this case justifies full-strength consecutive on counts 6, 7 and 8.[]
"I believe that the only true mitigating factor that [Cosinero] presents is his lack of prior record. I think that the defendant certainly has no remorse . . . ."
"The case is one where he abused his position of trust, he engaged in an act of violence, he engaged in a threat to retaliate if the matter was reported, he I think clearly lied in his testimony. And this is not just the court's personal conclusion. I think that the jury clearly rejected the assertion raised by the defense that the victim in the case was making up the story, exaggerating what happened.
"As to the question of whether the acts . . . would be considered committed on separate occasions . . . [,] I agree with the People that there was ability and opportunity of the defendant to reflect and decide for each act that he committed in counts 6, 7 and 8, that I think under the case law, that there was sufficient separation in the occurrence of those acts to allow him to decide if he was going to do that or not as opposed to them being all just a, quote, rape, and, therefore, I think it's justified to treat it as full-strength consecutive on that basis."
Section 667.6, subdivision (c) grants trial courts the discretion to impose consecutive full-strength sentences if the qualifying sex offenses "involve the same victim on the same occasion." (§ 667.6, subd. (c), italics added.)
After pronouncing sentence, the court asked, "Is there anything else counsel believe I need to address?" Defense counsel objected to the lack of evidence supporting reimbursement to the victim restitution fund. In the ensuing discussion, which consumes about six pages' worth of reporter's transcript, defense counsel did not object that the trial court failed to adequately explain its decision to impose consecutive, full-strength, upper-term sentences on counts 6, 7, and 8.
B. Forfeiture
Cosinero forfeited his sentencing challenge by failing to assert it during the sentencing hearing. "A party in a criminal case may not, on appeal, raise 'claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices' if the party did not object to the sentence at trial." (People v. Gonzalez (2003) 31 Cal.4th 745, 751 (Gonzalez), quoting People v. Scott (1994) 9 Cal.4th 331, 353 (Scott).) This forfeiture rule applies to "cases in which the stated reasons allegedly do not apply to the particular case, and cases in which the court purportedly erred because it double-counted a particular sentencing factor, misweighed the various factors, or failed to state any reasons or give a sufficient number of valid reasons." (Scott, at p. 353; see Gonzalez, at p. 751.) " 'The reason for [the forfeiture] rule is that "[i]t is both unfair and inefficient to permit a claim of error on appeal that, if timely brought to the attention of the trial court, could have been easily corrected or avoided." ' " (People v. Sperling (2017) 12 Cal.App.5th 1094, 1101 (Sperling).) However, the forfeiture rule applies only when the sentencing court provides "a meaningful opportunity to object . . . during the course of the sentencing hearing itself . . . ." (Scott, at p. 356.)
Cosinero's sentencing challenge falls squarely within the forfeiture rule. Specifically, his challenge to the trial court's alleged failure to specify a sufficient number of valid reasons for imposing consecutive, full-strength, upper-term sentences is precisely the type of issue forfeited if not raised during the sentencing hearing. (See Scott, supra, 9 Cal.4th at pp. 353, 356.)
In a footnote in his opening brief, Cosinero asserts the forfeiture rule does not apply here because he never had "a meaningful opportunity to object" inasmuch as the court failed to "clearly apprise[] [the parties] of the sentence the court intend[ed] to impose and the reasons that support any discretionary choices." We are not persuaded. The trial court's inquiry whether there "[i]s . . . anything else counsel believe [the court] need[s] to address" afforded Cosinero a meaningful opportunity to object during the sentencing hearing. (See Sperling, supra, 12 Cal.App.5th at pp. 1101-1102 [challenge forfeited where counsel "remained silent" after the trial court pronounced sentence and asked, " 'Is there any other record either of you would like me to make?' "]; see People v. Zuniga (1996) 46 Cal.App.4th 81, 84 [" 'meaningful opportunity to object' " does not "require a tentative ruling in advance of the actual sentence"].) Indeed, defense counsel took the opportunity to object to a different aspect of the sentence. By failing to also raise any concerns about the trial court's enumeration of aggravating factors, Cosinero forfeited his right to raise any such concerns on appeal.
C. No Prejudicial Sentencing Error
Even if Cosinero had not forfeited this challenge, and assuming only for the sake of argument that the trial court erred—either by concluding that consecutive full-term sentences were required under section 667.6, subdivision (d), or by failing to specify the requisite number of valid aggravating factors to support a discretionary sentence under section 667.6, subdivision (c)—we would conclude Cosinero has failed to establish the error was prejudicial.
" 'In order to determine whether error by the trial court in relying upon improper factors in aggravation [or in imposing consecutive sentences] requires remanding for resentencing[,] "the reviewing court must determine if 'it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.' " ' " (Sperling, supra, 12 Cal.App.5th at p. 1104; see People v. Osband (1996) 13 Cal.4th 622, 728 (Osband) [" 'Improper dual use of the same fact for imposition of both an upper term and a consecutive term or other enhancement does not necessitate resentencing if "[i]t is not reasonably probable that a more favorable sentence would have been imposed in the absence of the error." ' "].)
It is not reasonably probable that Cosinero would receive a more favorable sentence if we were to remand for resentencing. The trial court expressly stated that even if it were not required to impose consecutive full-strength sentences, the court would exercise its discretion to do so. The decisions to impose consecutive, full-strength, and upper term sentences each require only a single aggravating circumstance in support. (Osband, supra, 13 Cal.4th at p. 728; People v. Belmontes (1983) 34 Cal.3d 335, 348). The probation officer and the prosecutor each identified four distinct aggravating circumstances—for a total of eight—to support the trial court's discretionary sentencing decisions. On the record before us, we are satisfied that the trial court on remand could and would articulate a sufficient number of unique aggravating circumstances to support each of its discretionary sentencing decisions. (See Osband, at p. 729.)
V. Cosinero Forfeited His Dueñas Challenge to Assessments, Fees, and Fines
Cosinero contends the trial court's imposition of $10,874 in assessments, fees, and fines without first determining his ability to pay them violated his due process rights under Dueñas, supra, 30 Cal.App.5th 1157. The Attorney General maintains Cosinero forfeited this challenge by failing to object on that basis in the trial court. Cosinero acknowledges he did not object, but maintains he has not forfeited his challenge because Dueñas, which was not decided until after he was sentenced, "represents a dramatic and unforeseen change in the law governing assessments and restitution fines." On the record before us, we conclude Cosinero forfeited this challenge.
As noted, the trial court ordered Cosinero to pay a $10,000 restitution fine (§ 1202.4, subd. (b)); a $300 sex offender registration fine (§ 290.3); a $154 criminal justice administration fee (Gov. Code, § 29550 et seq.); a $240 court operations assessment (§ 1465.8); and a $180 conviction assessment (Gov. Code, § 70373). --------
Notably, the statutes authorizing $10,454 of the $10,874—about 96 percent—of the assessments, fees, and fines Cosinero now challenges authorized the trial court to consider his ability to pay. First, by imposing a restitution fine of $10,000 under section 1202.4, the trial court exceeded the $300 minimum fine, thereby authorizing the court to "consider[]" Cosinero's "[i]nability to pay." (§ 1202.4, subd. (c).) Second, because Cosinero was convicted of a qualifying sex offense, section 290.3 required that he "be punished by a fine of three hundred dollars ($300) . . . unless the court determines that the defendant does not have the ability to pay the fine." (Italics added.) Finally, the statutes authorizing the trial court to impose the $154 criminal justice administrative fee expressly authorized the court to consider Cosinero's ability to pay the fee. (Gov. Code, § 29550.2 ["If the person has the ability to pay, a judgment of conviction shall contain an order for payment of the amount of the criminal justice administration fee by the convicted person," italics added]; id., § 29550, subd. (d)(2) ["The court shall, as a condition of probation, order the convicted person, based on his or her ability to pay, to reimburse the county for the criminal justice administrative fee," italics added.].)
Cosinero's silence during sentencing in the face of more than $10,000 in assessments, fees, and fines he could have challenged on the basis of his alleged inability to pay "is a classic example of the application of the forfeiture doctrine relied upon by the California Supreme Court in numerous criminal sentencing cases decided well before Dueñas." (People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033, citing People v. Aguilar (2015) 60 Cal.4th 862, 864, 866 [applying the forfeiture rule to unpreserved ability-to-pay challenges to probation-related costs and an order for reimbursement of fees paid to appointed trial counsel]; People v. Trujillo (2015) 60 Cal.4th 850, 853-854 [applying the forfeiture rule to an unpreserved ability-to-pay challenge to probation-related fees]; People v. Nelson (2011) 51 Cal.4th 198, 227 [applying the forfeiture rule to an unpreserved ability-to-pay challenge to a restitution fine]; see also People v. McCullough (2013) 56 Cal.4th 589, 597 [applying the forfeiture rule to an unpreserved ability-to-pay challenge to a criminal justice administration fee].)
DISPOSITION
Affirmed.
HALLER, J. WE CONCUR: HUFFMAN, Acting P. J. DATO, J.