Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 07F4119
ROBIE , J.
Defendant Alexander Fondril Hardley pled guilty to forcible digital penetration of My. and to digital penetration of Mi., both of whom were his younger cousins. The court sentenced him to 11 years in prison.
On appeal, defendant contends the court erred in imposing the fully consecutive sentence because it failed to articulate the reason for its sentencing choice, and his attorney was ineffective for failing to object. Finding no error, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In May 2007, officers were dispatched to a “past-tense” child molestation call that defendant had fondled his cousin My. less than one year ago when she was 17 years old. The molestation occurred one morning after defendant’s wife had left for the store. Defendant came into My.’s bedroom, locked the door, got into bed with her, put his hand down her underwear, and rubbed his finger up and down her clitoris seven to eight times. My. told defendant to stop and that she was scared, but he pushed his finger into her vagina. The incident ended when My.’s mother came to the house and yelled from downstairs, “‘I’m home,’” and defendant left the bedroom. My. told police that defendant had been asking her for sex starting when she was 15 years old.
Approximately three months after defendant molested My., he molested Mi. While driving Mi. to his apartment, defendant began touching and rubbing her inner thigh. Defendant “began talking to her about how things might be if they hadn’t been cousins.” At the apartment, they “‘hung out’” with defendant’s stepdaughter and her friend and then left to get cigarettes. While driving, defendant again rubbed Mi.’s inner thigh. When they returned to the apartment, defendant started kissing Mi., inserted his finger into her vagina, and rubbed her back, buttocks, and breasts. The next morning, defendant went into the bathroom when Mi. was inside, unwrapped a towel that was around Mi.’s body, and inserted his finger into her vagina and rubbed her clitoris.
When interviewed by police, defendant acknowledged knowing that Mi. was 16 years old at the time he touched her but said she liked it. When interviewed by the probation officer, defendant said Mi. was the one who exposed herself to him in the bathroom and was flirting with him, but he was still in the wrong and accepted responsibility.
In a sentencing brief, the prosecutor explained the court had the option of sentencing defendant to a fully consecutive sentence because one of defendant’s offenses was a forcible sex offense. (Pen. Code, § 667.6, subd. (c), hereafter section 667.6(c).) The prosecutor argued for a “full strength consecutive sentence” consisting of the upper term of eight years for molesting My. plus the upper term of three years for molesting Mi. She enumerated the following three aggravating circumstances: (1) the victims were particularly vulnerable; (2) defendant took advantage of a position of trust or confidence to commit the offenses; and (3) he had a prior misdemeanor conviction for unlawful sexual intercourse with a minor that took place when he was 18 years old and the victim was 14 years old.
All further statutory references are to the Penal Code unless otherwise indicated.
Defense counsel filed a sentencing brief arguing for a sentence between three and six years.
At the sentencing hearing, the court stated it had reviewed both sentencing briefs. Defense counsel then called defendant’s father as a witness to testify regarding the mother and father’s divorce, the mother’s suicide, and defendant’s molestation at the hands of a family member. The People called My. and Mi. to testify about the deleterious effects of the molestations.
After this testimony, the prosecutor stated she was not going to reiterate the arguments in her sentencing brief but stressed that defendant “poses a risk to the community, and that he should be punished with the most that he can” and that his remorse did not overcome what he had done to the victims.
Defense counsel argued that defendant made an “early admission,” volunteered information about the second victim, and wrote a letter of apology prior to the district attorney’s filing the case. Counsel asked the court “to look at the mitigated term with concurrent sentences on the second count.”
When invited by the court to respond, the prosecutor stated that concurrent sentences would not be appropriate because “[t]hese are two separate victims and two different occasions,” the victims were vulnerable, and defendant took advantage of that vulnerability.
The court “[t]hank[ed]” both lawyers for “the well laid-out written material.” The court acknowledged that defendant was remorseful and pled guilty just after the information was filed. “On the other side of the ledger,” the court agreed with the prosecutor’s argument to impose the 11 years. Regarding the prosecutor’s “argument to run the terms consecutively,” the court “concur[ed]” with the prosecutor that there were two victims and there was time between the first and second incidents where defendant could have reflected on his actions. “As to . . . making the sentence aggravated,” the court thought there were “certainly reasons to do that here also.” The victims were vulnerable because they were defendant’s younger relatives, he was in a position of trust over them, and defendant had a prior conviction involving another young victim.
DISCUSSION
Defendant contends the court erred in imposing a fully consecutive sentence because it failed to articulate the reason for its sentencing choice and that his attorney was ineffective for failing to object. We disagree because the record reflects the court recognized it was making a separate and additional choice in imposing a fully consecutive sentence.
Section 1170.1 sets forth the general formula for determining consecutive terms of imprisonment for defendants convicted of multiple felonies: the trial court selects a principal term, which is the greatest term of imprisonment imposed for any of the convictions; the sentence for the subordinate terms is one-third of the middle term for each felony for which the court imposes a consecutive term of imprisonment. (§ 1170.1, subd. (a).)
There is an exception to this sentencing scheme where, as here, the felony with the longest term is a violent sex offense listed in section 667.6(c). In such a case, the trial court is not required to designate this offense as the principal term. Rather, it may exercise its discretion to designate the felony not enumerated in section 667.6(c) as the principal term under section 1170.1, and impose a full, consecutive term for the violent sex offense pursuant to section 667.6(c). (People v. Belmontes (1983) 34 Cal.3d 335, 346.)
If the court exercises its discretion to impose a fully consecutive sentence under section 667.6(c), such a decision is an additional sentencing choice requiring a statement of reasons separate from those justifying the decision to sentence consecutively. (People v. Belmontes, supra, 34 Cal.3d at pp. 345-347.) “This does not mean that the reasons justifying full term consecutive sentencing under section 667.6, subdivision (c) must necessarily be different than those used to justify the imposition of consecutive sentences under section 1170.1. . . . The crucial factor, in our view, is that the record reflect recognition on the part of the trial court that it is making a separate and additional choice in sentencing under section 667.6, subdivision (c).” (Id. at p. 348, italics added.)
Here, while the trial court did not state separate reasons for its consecutive and full consecutive sentencing choices, it is apparent nonetheless that the court understood that it was making “a separate and additional choice.” (People v. Belmontes, supra, 34 Cal.3d at p. 348.) At the beginning of the sentencing hearing, the court stated it had reviewed the sentencing briefs. In her sentencing brief, the prosecutor stated the court had the option of imposing a “full strength and consecutive” sentence for a “maximum of eleven years state prison.” The prosecutor then quoted the text of section 667.6(c) that explains the court’s discretion to impose a fully consecutive sentence. Moreover, before the court imposed the fully consecutive sentence, the court “[t]hank[ed]” both counsel for “well laid-out written material.” It then orally adopted the reasons the prosecutor had given for the 11-year sentence. On this record we confidently can say that the court understood it was making a separate and additional choice when imposing the fully consecutive sentence. Therefore, there was no error. It follows, then, that counsel was not deficient for failing to object.
DISPOSITION
The judgment is affirmed.
We concur: HULL , Acting P. J. BUTZ , J.