Opinion
F074901
12-13-2018
THE PEOPLE, Plaintiff and Respondent, v. WILFREDO MINA, Defendant and Appellant.
Jonathan E. Berger, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. MCR051890)
OPINION
APPEAL from a judgment of the Superior Court of Madera County. Dale J. Blea, Judge. Jonathan E. Berger, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Wilfredo Mina stands convicted, following a jury trial, of sexual penetration of a child 10 years of age or younger (Pen. Code, § 288.7, subd. (b); counts 1 & 5), commission of a lewd act on a child under age 14 (§ 288, subd. (a); counts 2 & 4), and sexual intercourse with a child 10 years of age or younger (§ 288.7, subd. (a); count 3). After a bifurcated court proceeding, he was found to have committed offenses against more than one victim. (§ 667.61, subds. (b) & (e).) His motion for a new trial was denied, and he was sentenced to a lengthy prison term and ordered to pay various fees, fines, and assessments.
All statutory references are to the Penal Code unless otherwise stated.
On appeal, we hold: (1) Any error in the admission of charts prepared by the prosecutor was harmless; and (2) Mina is not entitled to have a concurrent sentence imposed on count 4. Accordingly, we affirm.
FACTS
I
PROSECUTION EVIDENCE
Family Background and Timeline
A. was born in February 2003. Y. was born in October 2004. Their mother, F.G., and Mina subsequently had a child together. Mina was over the age of 18 when F.G. first met him. F.G. and her children lived in an apartment on Pepper Tree in Madera. Mina moved in with them in 2008, when his and F.G.'s child was born.
For clarity and privacy, we refer to some persons by their first names or initials. No disrespect is intended.
In February 2011, the family moved to the Shasta Villas Apartments in Chowchilla. Antonio, a friend of Mina's, also lived with them at that time. They remained at that location until September 2012. A. and Y. were both in school. If F.G. was working when they got out of school, Mina sometimes watched them. Other times, his mother, who lived nearby, watched the children.
In 2012, Mina, F.G., and the children moved back to Madera. They lived with Mina's mother in a house she had bought on Grove Street. F.G. and the children subsequently moved into an apartment on Tozer, because Mina's mother tried to kill F.G. in front of the children. Mina, who continued to live with his mother, visited F.G. and his child almost every day, although he did not spend the night. A. and Y. were present during some of his visits.
F.G. testified this occurred in 2013. The police report of the incident listed the date as June 11, 2014.
At the time of trial (September 2016), A. was 13 years old and in eighth grade. Y. was 11 years old and in seventh grade. Neither girl had been held back or skipped any grades, and both had always attended schools on traditional schedules, i.e., from August to June.
Y .'s Testimony
Y. was in first and second grades during the time the family lived in Chowchilla. While they lived in the apartment in Chowchilla, Mina raped Y. Y. believed she was seven or eight years old at the time, and attending Fuller school. F.G. was at work. Y. was in the living room, playing with her little sister and their pet. Mina called Y. into A.'s room. He grabbed Y.'s wrist and told her to sit on the bed. Mina closed the door. He then told Y. to lie down. When she obeyed, he pulled her leggings and underwear down to her knees and he pulled her shirt up. He then took off his shorts partway and got on top of her. He held her arms and touched her with his penis. She felt pain in her private area. She tried to escape, but Mina was too heavy. He kissed her neck and arms. After he got off of her, he told her to swear to God not to tell anyone. Y. quickly pulled on her clothes and went to the bathroom. She was bleeding from her private area. She did not tell anyone what happened. She was scared.
Asked what the word "rape" meant to her, Y. responded, "He hurt me."
At trial, Y. testified that his mouth did not touch her anywhere else. During a forensic interview conducted by Josephina Roderick on June 22, 2015, however, Y. related that after Mina finished moving up and down with his private in her private, he kissed her private part. She felt his tongue on the inside and outside. Y. was 10 years old at the time of the forensic interview.
Another time in the apartment in Chowchilla, Y. was lying on her stomach on the bed in Mina's room, watching television, when Mina came in. He lay down, pulled down his shorts, and told her to touch his private part. He put her hand on his penis, but she pulled her hand away and left the room. She washed her hands, then went to watch television in the living room. She did not tell F.G. when F.G. came home from work.
The family moved from Chowchilla to a blue house in Madera. Y. was in third and fourth grades when they lived in the blue house. One night, Y. got up to get a drink of water. Mina called her into the living room. He was lying on the couch, watching a soccer game on television. He had Y. lie down with him, then inserted a finger inside her private part. She started crying, because it was painful, so he removed his finger and then took her into the kitchen and said to drink water. Y. drank the water, then went to the restroom. She started bleeding again. There was blood in her underwear. She threw her underwear away, because she did not want F.G. to see. Y. did not want F.G. and Mina to start fighting. She had seen them fight over things before, and it scared her.
After F.G. and the children moved to the apartment on Tozer, Mina visited, but did not spend the night. He did not touch Y. anymore.
A .'s Testimony
A. was in fourth and fifth grades when the family lived in the blue house. Prior to living there, the family and Mina lived in an apartment in Chowchilla. While they were there, Mina's mother moved in with them. Antonio also moved in with them at some point. A. was in second and third grades in Chowchilla. Prior to living in Chowchilla, the family lived in Madera in some brown apartments. A. was in kindergarten and possibly first grade at that time.
When the family moved out of the blue house, Mina did not move with them. A. still saw him, however, because he came over to visit his child. When he came over, A. went outside or locked herself in the room. She was scared, because he did bad things to her more than once.
Mina first did something bad to A. when she was living in the brown apartments. He came into her room at night while she was asleep. He touched her stomach, then touched her vagina inside her underwear with his hand. She was scared and did not know what to do, so she pretended she was sleeping. He rubbed her first on top of her vagina, then he went inside. He stopped when she moved. During the time the family lived in the brown apartments, the touching occurred more than once when F.G. was at work.
After the family moved to Chowchilla, Mina continued to touch A. and her sister. He touched A. in the same way all the time. On one occasion when F.G. was at work, however, Mina grabbed A. by the wrist and took her to her room, locked the door, laid her down on the bed, and removed her pants. He either pulled her underwear halfway down or removed it. He took off his belt. A. felt something go inside her, and she felt pain like a punch in her vagina. Mina was on his knees on the bed. When he heard A. crying, he stopped what he was doing. He put A.'s pants back on and made her swear to the Virgin Mary not to tell F.G. A. was in third grade when this happened. She was turning eight or nine years old.
During the time they lived in Chowchilla, A. and Y. shared a bed. One night, when F.G. was at work, A. woke to find Y. was not in bed with her anymore. A. went to the living room to look for her, and saw Y. lying on the couch with Mina. A. could not see Mina's hands, because he and Y. had a blanket over them. A. told Y. to come back to the bedroom with her. When Y. stayed where she was, A. returned to the room and cried. A. also saw Y. lying down with Mina in the blue house. He always called Y. to go with him. Sometimes they were on the couch, and sometimes in the bedroom he shared with F.G. There was always a blanket over them.
One night in the blue house, A. saw the door to the girls' room open. Mina came in. Minutes later, Y. went into the bathroom. A. went to check on her. Y.'s underwear had blood in it. Y. looked scared. When A. asked her what happened, Y. said she did not know, that he just came in her room, and she did not know what happened. The girls did not want F.G. to know anything, so they went together to throw the underwear in the trash outside. A. was scared F.G. would do something to Mina. A. told her cousin what happened, and when word got back to F.G., F.G. questioned A. A. denied Mina was touching her sexually, because F.G. said that if Mina actually did what she had heard, F.G. was going to kill him. A. took her seriously and worried F.G. would go to jail.
The family moved out of the blue house when A. was in fifth grade. A. saw F.G. and Mina's mother arguing, then Mina's mother hit F.G. with a sandal. Mina's mother went to her room, came back with a machete, and pointed it at F.G. and then at Y. Mina's mother was angry. The children started crying, because they thought she was going to kill F.G. Antonio came and told Mina's mother to stop. Mina came home from work and begged F.G. not to go to the police, but F.G. reported the incident. Mina's mother was arrested, and F.G. and the children moved out of the house that night. They stayed with A.'s grandmother for a couple weeks, then moved into the apartment on Tozer Street.
On Father's Day of 2015, the family went to a water park. F.G. invited Mina to go with them. A. was uncomfortable being in the same place as Mina. After the water park, Mina went to their apartment. F.G. told A. that Mina was going to stay overnight. A. was scared and started yelling at F.G. Mina saw them arguing, and he left. A. told F.G. what had happened. A police officer interviewed A. that same day.
II
DEFENSE EVIDENCE
Mina's mother testified that she started living with Mina, Antonio, F.G., and the children in the apartment in Chowchilla in around June 2012. They lived there together for about two months, then everyone moved to the blue house in Madera. F.G. and the children moved out in June or July 2014. F.G. and Mina's mother had an argument, because Y. was disrespecting Mina's mother. F.G. tried to hit Mina's mother. Mina's mother had been sharpening some sticks and had a machete in her hand, and she put it in front of her so F.G. would not hit her. A. and Y. were in another room when this happened. According to Mina's mother, A. and Y. loved Mina very much, and he loved them as a father. Mina's mother never observed anything that caused her concern for the girls' welfare.
Mina testified that he had a father/daughter relationship with A. and Y. He first heard of the allegations against him when he was arrested in June 2015. He denied the allegations. He believed both girls were lying, but did not know why they would make up such a story. He did not believe either girl would benefit from making the allegations, but he thought F.G. would benefit from them.
DISCUSSION
I
ADMISSION OF PROSECUTOR'S CHARTS SUMMARIZING TESTIMONY
Mina contends that by erroneously admitting into evidence the prosecutor's charts that summarized witness testimony, the trial court deprived Mina of his Sixth Amendment right to trial by jury, and his due process right to have the facts underlying his convictions determined by a jury. We conclude any error was harmless. A. Background
After Y. and A. completed their testimony, the prosecutor sought to have admitted into evidence charts she created to provide a visual representation of the testimony presented to that point. The prosecutor stated she expected Detective Cederquist, her investigating officer, to be able to lay a foundation as to all the testimony he heard in court and to authenticate the accuracy of the charts, so they could be admitted into evidence and the jury could have them during deliberations to assist in figuring out dates. When the court questioned whether the charts would be more appropriate for use in argument, the prosecutor stated she had done that before, but past juries had asked to have such charts in the jury room, and the charts were admitted into evidence. The prosecutor reiterated that Cederquist had heard the testimony and was going to listen to Y.'s forensic interview, and that the information on each chart was just a visual representation of the testimony jurors had already heard.
Defense counsel objected. He argued that the charts were prepared by someone other than a witness, and no one to whom the charts related had anything to do with the charts' production. Thus, the charts were not evidence that would be generated by any sort of investigation. Counsel also pointed out that jurors heard the testimony, and were better off listening to or reviewing that testimony rather than someone else's production of a summary of the totality of the testimony. Counsel asserted the charts were "more argument than evidence" or something a witness could use to assist with his or her testimony.
The court stated: "So the law is this: If evidence which the document summarized is admissible, the admission of the documents into evidence and their use before the jury is within the Court's discretion. The fact that the document summarizes the evidence does not make it inadmissible." The court observed that the testimony of Y. and A. involved children detailing events, dates, times, places of residence, and school grades; and the testimony sometimes became difficult to follow. The court believed the summaries would "assist in allowing the jurors to have an understanding of what occurred, when and where the occurrences happened." The court questioned, however, why ages and grades beyond the date of disclosure (Father's Day 2015) were relevant. The prosecutor argued the later dates provided a starting point to go back in time and establish the earlier time frames.
The court also questioned how the prosecutor intended to have Cederquist testify, since, if the witnesses had already testified to the content of the charts, the foundation therefor already existed. The prosecutor agreed, but suggested Cederquist could authenticate that the visual representation on the charts was an accurate representation of the testimony. The court asked whether this was getting close to vouching, inasmuch as the information already was in evidence. The prosecutor then asked the court to take judicial notice of all the evidence it had heard. At that point, defense counsel stated that if the court was inclined to allow the charts to come into evidence, the defense would prefer Cederquist authenticate the information so the jury would know it was Cederquist's summary of the testimony. Defense counsel stated he did not object to Cederquist stating it was his recollection and summary of the testimony, and having the opportunity to cross-examine him on the subject. The court then ruled the charts could be marked as exhibits and received into evidence over defense objection.
Cederquist subsequently testified that during the course of the trial, he had been present and had listened and taken notes. He testified the exhibits were accurate visual representations of the testimony he had heard from all the witnesses regarding Y.'s and A.'s dates of birth, residences, and when they were in school. The exhibits were then formally moved and received into evidence, and published to the jury.
Jurors subsequently were instructed, inter alia, to consider all of the evidence received throughout the entire trial. They were told evidence was the sworn testimony of witnesses, the exhibits admitted into evidence, and anything else the court told them to consider as evidence.
During her summation, the prosecutor told the jury: "The other issue [with respect to the charged violations of section 288.7] is if the crime happened when the child was 10 or under. And that is where these handy charts that you have a copy of come into play. You can have them in the jury room to help you figure stuff out. Because the People understand, everybody understands, that crimes involving time frames, houses, grades, ages, it can get pretty confusing. So you will have in your jury room to assist with deliberations a chart regarding each child that is a visual representation of all the evidence that you've heard. Makes it easier. [¶] The issues in this case aren't relating to age at all. They're relating to whether or not it happened." Defense counsel argued to the jury: "So the prosecutor tells you what this case is about, whether it's about age or whether it's about what grades the girls are in. What we need to look at is to figure out whether or not this case is really about Mr. Mina, or whether or not there's an underlying issue that has caused this animosity within the family and has made the children testify against him in court. Who would have made the children testify in court? Well, apparently [F.G.] is a major influence on the children. They all stated it. Their demeanor. They're afraid of her." B. Analysis
"[A]n appellate court applies the abuse of discretion standard of review to any ruling by a trial court on the admissibility of evidence ...." (People v. Waidla (2000) 22 Cal.4th 690, 724.) " 'Evidence' means testimony, writings, material objects, or other things presented to the senses that are offered to prove the existence or nonexistence of a fact." (Evid. Code, § 140, italics added.) Evidence is "the means by which any alleged matter of fact, the truth of which is submitted to investigation, is established or disproved." (Schloss v. His Creditors (1866) 31 Cal. 201, 203.)
"[D]emonstrative evidence [is] offered to help a jury understand expert testimony or other substantive evidence ...." (People v. Duenas (2012) 55 Cal.4th 1, 20 (Duenas).) Demonstrative evidence is "not offered as substantive evidence, but as a tool to aid the jury in understanding the substantive evidence." (Id. at p. 25.) " 'Demonstrative evidence is evidence that is shown to the jury "as a tool to aid the jury in understanding the substantive evidence." ' [Citation.] Common examples of demonstrative evidence include 'maps, charts, and diagrams' [citation], all of which 'illustrate a witness's testimony.' [Citation.] [¶] ' "[D]emonstrative evidence is admissible for the purpose of illustrating and clarifying a witness' testimony" so long as a proper foundation is laid.' " (People v. Vasquez (2017) 14 Cal.App.5th 1019, 1036-1037 (Vasquez).) Demonstrative evidence may not, however, be used as substantive evidence. (Id. at p. 1037.) Substantive evidence is used to prove the facts of a case; demonstrative evidence is used to help a jury understand substantive evidence. (Ibid.)
In the present case, the charts were not prepared by any witness, nor were they presented for the purpose of illustrating or clarifying any particular witness's testimony. (Cf. Duenas, supra, 55 Cal.4th at pp. 20-21 [computer animation illustrating theory of prosecution's expert witness was properly admitted]; Vasquez, supra, 14 Cal.App.5th at p. 1039 [chart summarizing witness's testimony might constitute proper demonstrative exhibit].) Rather, their purpose was to present a summary of all the testimony presented in the prosecution's case-in-chief, insofar as that testimony related to A.'s and Y.'s ages, grades, and places of residence at pertinent times. As such, the charts would appear to be closer to prosecutorial comment than to evidence, and so should have been relegated to the prosecutor's summation to the jury. (See People v. Perez (1992) 2 Cal.4th 1117, 1126 [prosecutorial argument is not evidence].)
We need not make this determination, however, because any error clearly was harmless. "When evidence is erroneously admitted, we do not reverse a conviction unless it is reasonably probable that a result more favorable to the defendant would have occurred absent the error." (People v. Powell (2018) 5 Cal.5th 921, 951 (Powell), citing People v. Watson (1956) 46 Cal.2d 818, 836; accord, People v. Covarrubias (2016) 1 Cal.5th 838, 887-888; Vasquez, supra, 14 Cal.App.5th at p. 1041.) To the extent the charts may have constituted prosecutorial statements rather than evidence, the same standard applies. (Powell, supra, at p. 951.)
At no time has Mina claimed the charts inaccurately summarized the evidence. At trial, he did not contest A.'s or Y.'s ages, grades, or places of residence on any particular date; rather, his defense was that he never had physical contact of a sexual nature with either girl, and F.G. apparently put them up to testifying to the contrary. The prosecutor could have properly used the charts in her summation, and she did not argue they constituted substantive proof of any fact. (See Duenas, supra, 55 Cal.4th at pp. 25-26.) Given the accuracy of the charts, the nature of Mina's defense, and the fact the charts could have been used by the prosecutor in her summation, it is not reasonably probable Mina would have obtained a more favorable result had the charts not been admitted into evidence.
We have viewed the charts, which are contained in the record on appeal. The chart corresponding to Y. was marked as Exhibit 5. It gave her date of birth, the dates she was in first through seventh grades, the dates she was five years old through 11 years old, and when she moved to Chowchilla and then the blue house. The chart corresponding to A. was marked as Exhibit 6. It gave her date of birth, the dates she was in first through eighth grades, the dates she was six years old through 13 years old, and when she moved to Chowchilla and then the blue house. The prosecutor elicited much of the summarized evidence from adult witnesses in addition to A. and/or Y. On neither chart was any information about the charges placed in the timeline.
Mina fails to persuade us the asserted error rose to federal constitutional magnitude. Because the charts accurately summarized the evidence and Mina did not contest the evidence thus summarized, admission of the charts did not render the trial fundamentally unfair, deprive Mina of his right to an independent jury determination of the facts, or somehow usurp the jurors' responsibility to determine witness credibility. Nor did admission of the charts lighten the prosecution's burden of proof. Mina had no constitutional right to a confused jury, and the charts clearly would have been permissible had the prosecutor used them as part of her summation. Moreover, they were presented as a summary of evidence jurors had heard, and not as independent proof of some fact.
Were we to find federal constitutional error, however, we would find no prejudice even under the stringent harmless-beyond-a-reasonable-doubt standard applicable thereto. (Chapman v. California (1967) 386 U.S. 18, 24; see Neder v. United States (1999) 527 U.S. 1, 17 (Neder); Sullivan v. Louisiana (1993) 508 U.S. 275, 279 (Sullivan); People v. Lewis (2006) 139 Cal.App.4th 874, 887 (Lewis).) To reiterate, the charts accurately summarized existing testimony, could properly have been used in the prosecutor's summation, and were not argued by the prosecutor as proof of any fact. (Cf. People v. Barajas (1983) 145 Cal.App.3d 804, 810-811.) Because the charts accurately summarized the evidence, jurors could not have rejected the admissible evidence and yet accepted, and convicted based on, the information contained in the charts. (Cf. People v. Robinson (1964) 61 Cal.2d 373, 406.) Mina did not contest either girl's age, grade, or residence as of any particular date, but his defense instead was one of denial. (See Neder, supra, 527 U.S. at p. 17.) Under the circumstances, there exists no reasonable possibility the error might have contributed to the convictions. (Lewis, supra, 139 Cal.App.4th at p. 888.) Thus, "the guilty verdict actually rendered ... was surely unattributable to the error" (Sullivan, supra, 508 U.S. at p. 279) and any error was, therefore, harmless beyond a reasonable doubt.
II
IMPOSITION OF CONSECUTIVE TERMS ON COUNT 4
Mina contends the trial court erred by imposing a consecutive sentence on count 4, because, he claims, there was no evidence the criminal conduct underlying that count occurred on a separate occasion from the conduct underlying count 3. We conclude any error was harmless; hence, he is not entitled to have a concurrent term imposed. A. Background
Count 3 of the first amended information charged Mina with a violation of section 288.7, subdivision (a), in that he had sexual intercourse with Y., who was under 10 years of age, on or about and between August 1, 2011, and July 31, 2012. Count 4 of the first amended information charged Mina with a violation of section 288.7, subdivision (b), in that he committed oral copulation with Y., who was under 10 years of age, on or about and between the same dates. During trial, the prosecutor was permitted, without objection, to amend to conform to proof. In pertinent part, count 4 was amended to allege a violation of section 288, subdivision (a) occurring between August 1, 2011, and July 31, 2012. At the prosecutor's request, and again without objection, count 4 subsequently was further amended to add, "to wit, when the defendant kissed [Y.]'s vagina while on her sister's bed in Chowchilla." The jury convicted Mina of counts 3 and 4 as so amended.
The probation officer's report erroneously stated Mina was convicted, in count 3, of violating subdivision (b) of section 288.7, and recommended imposition of the statutorily mandated consecutive term of 15 years to life in prison for that count, instead of the 25-years-to-life term mandated by subdivision (a) of section 288.7. With respect to count 4 (the only count punishable by a determinate term), the probation officer listed, as the sole circumstance in aggravation, that Mina took advantage of a position of trust. As the sole circumstance in mitigation, the probation officer found Mina had an insignificant record of criminal conduct. The probation officer recommended imposition of the upper term on the ground the factor in aggravation outweighed the factor in mitigation. With respect to concurrent or consecutive sentences, the probation officer stated that the crimes in counts 3, 4, and 5 (all of which involved Y.) "had the same victim but their objectives were predominately independent of each other [and t]he crimes were committed at different times and on separate victims, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior." The probation officer recommended imposition of a consecutive term on count 4, as each of the sexual acts involving Y. was "separate and distinct" and "occurred at different times and places."
At the sentencing hearing on November 22, 2016, defense counsel argued for imposition of the three-year lower term on count 4. With respect to concurrent versus consecutive terms, defense counsel stated: "[I]t seems like ... the probation officer sees every alleged incident to have occurred independently of everything else. But the testimony in court and the relationship between the family, including Mr. Mina with the children, they don't necessarily establish that they had separate but independent relationships with each other.... [¶] And so we would request that the Court instead of imposing consecutive sentences as to each of the counts, to impose the concurrent sentence. Specifically, in light of Mr. Mina's lack of criminal history. And also, he does understand the gravity of the offenses.... [¶] ... I feel that the indeterminate sentence would have the impact of rehabilitation to Mr. Mina without the need of having him to serve them consecutively." When the prosecutor responded that the evidence and sentencing laws supported the imposition of consecutive sentences, as there were multiple victims and multiple acts, defense counsel stated, "[A]s to whether or not there's any mitigating circumstances, it is the fact that the family unit lived as a family unit and I see that the People sees each act independent. I don't see them as independent. That's what we did submit as to mitigating factors, and in addition to the lack of criminal history."
The trial court found Mina statutorily ineligible for probation. It then stated:
"Even if this was not the case, the Court finds the nature and circumstances of the subject crimes indicate that probation should not be granted. Including the fact that Mr. Mina was in a very privileged and special position in the children's lives, the victims' lives. Mr. Mina lived in the same household as the victims. And when he agreed to do that, when he moved into that household, he stepped into the home as the victims' de facto father. He was trusted to provide child care for the victims when their mother was at work or otherwise unavailable. Ultimately, what this did was made the children readily available to him to be sexually assaulted. The evidence established that Mr. Mina abused the trust the family vested in him by sexually assaulting the victims on repeated occasions.
"Mr. Mina remains unwilling to accept his responsibility for these crimes and for which he's been convicted. In the statement to the probation officer, Mr. Mina doesn't deny committing the crimes. But he states, quote, 'They found me guilty of words. There is no proof that demonstrates that I did what they say I did. I think that is not fair.' Close quote.
"He also claims that an injustice has occurred. The proof is in the testimony of the two victims. And the brave little girls who sat up here and had to go through what they had to go through in this courtroom recounting Mr. Mina's crime reflect that an injustice has occurred. I'll tell you what that is: It's abundantly clear to the Court that it was not fair to [A.] and [Y.] that the one place in the world where they should have been permitted
to feel safe, was the place where Mr. Mina made then unsafe. The injustice occurred when Mr. Mina violated a position of trust that he held relative to these girls. It was an injustice that [A.] had to build a barrier of pillows on her bed to protect herself as she slept from Mr. Mina and his need to satisfy his sexual needs. To this day, Mr. Mina has expressed no remorse for his acts. The Court finds that if released on probation, Mr. Mina would present a substantial danger to the community, including the victims.
"In weighing the aggravated and mitigating factors, the Court notes that in mitigation, Mr. Mina has suffered a single prior conviction, that being for driving without possessing a valid driver's license in 2008.
"In aggravation, Mr. Mina took advantage of a position of trust. He sexually assaulted the victims who were particularly vulnerable. And the crimes that he committed were carried out with planning. He specifically led the children behind closed doors, closed and locked doors and assaulted them there. And also when others in the household were asleep. When he was alone with the children.
"I find that as to Count 4, the upper term is the most appropriate term and will therefore impose that term.
"As to the argument related to consecutive and concurrent sentences, each term imposed shall be full and consecutive. The Court finds that the offenses identified in Counts 1, 2, 3, and 5 were committed on separate occasions. The Court finds that Mr. Mina had a reasonable opportunity to reflect on his actions between the commission of these crimes and nevertheless resumed his sexual assaultive behavior. [¶] ... [¶]
"As to Count 4, ... the Court imposes the upper term of eight years in state prison. The determinate term is ... to be served prior to the indeterminate term to be imposed, and that is pursuant to Penal Code Section 669, sub[division] (a)."
On December 7, 2016, the court corrected the sentence on count 3 to 25 years to life in prison for a violation of section 288.7, subdivision (a). The rest of the sentence remained the same as previously imposed. B. Analysis
"Within the limits set forth by the Legislature, a trial court has broad discretion to decide ... whether to run the prison terms on multiple offenses concurrently or consecutively ...." (People v. Clancey (2013) 56 Cal.4th 562, 579; see § 669, subd. (a); Cal. Rules of Court, rule 4.425.) "In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, ' "[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve the legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review." ' [Citation.] Second, a ' "decision will not be reversed merely because reasonable people might disagree. 'An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.' " [Citation.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (People v. Carmony (2004) 33 Cal.4th 367, 376-377; accord, People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.)
All references to rules are to the California Rules of Court.
A trial court is required to state its reasons for imposing consecutive sentences, even when one term is determinate and the other is indeterminate. (Rule 4.406(b)(5); People v. Sperling (2017) 12 Cal.App.5th 1094, 1103 (Sperling); see People v. Dixon (1993) 20 Cal.App.4th 1029, 1036-1037 & fn. 8; People v. May (1990) 221 Cal.App.3d 836, 838.) However, where, as here, the trial court affords the parties a meaningful opportunity to object, "complaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal." (People v. Scott (1994) 9 Cal.4th 331, 356.)
Mina contends the probation report erroneously stated the sexual acts underlying counts 3 and 4 were separate and distinct; the trial court "took the probation report at its word" and impliedly found the conduct underlying count 4 occurred on a separate occasion from all of Mina's other criminal conduct; this finding was not supported by the evidence; and as a result we should direct the trial court to impose the indeterminate sentence on count 3 concurrently with the determinate sentence on count 4. Although defense counsel took issue with the probation officer seeing each incident as having occurred independently of everything else and argued for imposition of concurrent instead of consecutive sentences, at no time did he object specifically on the grounds Mina now seeks to raise. Accordingly, the claims have been forfeited. (E.g., People v. Scott (2015) 61 Cal.4th 363, 406 [failure to object to incorporation by reference of aggravating and mitigating circumstances in probation report as reasons for imposing full consecutive terms]; People v. Ortiz (2012) 208 Cal.App.4th 1354, 1372, fn. 6 (Ortiz) [failure to object to making determinate sentence consecutive to indeterminate life term or vice versa]; People v. Stewart (2001) 89 Cal.App.4th 1209, 1214-1215 [failure to object to trial court's reliance on probation report], disapproved on another ground in People v. Buttram (2003) 30 Cal.4th 773, 777, 791; People v. Wagoner (1979) 89 Cal.App.3d 605, 616 [failure to object to contents of probation report].)
Mina claims that if we find forfeiture, then defense counsel's failure to object constituted ineffective assistance of counsel. The burden of proving ineffective assistance of counsel is on the defendant. (People v. Pope (1979) 23 Cal.3d 412, 425, overruled on another ground in People v. Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10; see generally People v. Fosselman (1983) 33 Cal.3d 572, 581-582.) "To secure reversal of a conviction [or sentence] upon the ground of ineffective assistance of counsel under either the state or federal Constitution, a defendant must establish (1) that defense counsel's performance fell below an objective standard of reasonableness, i.e., that counsel's performance did not meet the standard to be expected of a reasonably competent attorney, and (2) that there is a reasonable probability that defendant would have obtained a more favorable result absent counsel's shortcomings. [Citations.] 'A reasonable probability is a probability sufficient to undermine confidence in the outcome.' " (People v. Cunningham (2001) 25 Cal.4th 926, 1003; see generally Strickland v. Washington (1984) 466 U.S. 668, 687-694.)
If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, we may do so without deciding whether counsel's performance was deficient. (People v. Jacobs (2013) 220 Cal.App.4th 67, 75-76.) In this regard, a defendant bears the " 'burden of proving prejudice as a "demonstrable reality," not simply speculation as to the effect of the errors or omissions of counsel.' " (People v. McPeters (1992) 2 Cal.4th 1148, 1177, superseded by statute on another ground as stated in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106-1107.)
Criteria affecting whether to impose consecutive rather than concurrent sentences include whether "(1) The crimes and their objectives were predominantly independent of each other; [¶] (2) The crimes involved separate acts of violence or threats of violence; or [¶] (3) The crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior." (Rule 4.425(a).) In addition, "[a]ny circumstances in aggravation or mitigation may be considered in deciding whether to impose consecutive rather than concurrent sentences, except: [¶] (1) A fact used to impose the upper term; [¶] (2) A fact used to otherwise enhance the defendant's prison sentence; and (3) A fact that is an element of the crime may not be used to impose consecutive sentences." (Rule 4.425(b).)
We quote rule 4.425 as it existed at the time Mina was sentenced. Minor amendments have since been made that do not impact our analysis.
"Absent an explicit statement by the trial court to the contrary, it is presumed the court properly exercised its legal duty to consider all possible mitigating and aggravating factors in determining the appropriate sentence." (People v. Oberreuter (1988) 204 Cal.App.3d 884, 888, disapproved on another ground in People v. Walker (1991) 54 Cal.3d 1013, 1022.) This presumption applies equally to the criteria listed in rule 4.425. (Rule 4.409.) Thus, we reject Mina's assertion that because the trial court made the same error as the probation officer with respect to the violation constituting count 3, the court must have found the conduct underlying count 4 occurred on a separate occasion, as the probation report stated. Such speculation flies in the face of settled legal presumptions. (See generally Ross v. Superior Court (1988) 19 Cal.3d 899, 913.)
We are not prepared to say no reasonable person could conclude the crimes in counts 3 and 4 (sexual intercourse and lewd act consisting of oral copulation, respectively) and their objectives were predominantly independent of each other within the meaning of rule 4.425(a)(1). (See People v. Harrison (1989) 48 Cal.3d 321, 335-336 [rejecting argument that single intent and objective of obtaining sexual gratification meant § 654 precluded imposition of consecutive terms for multiple sex crimes committed during continuous attack; since none of sex offenses was committed as means of committing any other, none facilitated commission of any other, and none was incidental to any other, § 654 did not apply]; see also People v. Jones (2001) 25 Cal.4th 98, 104 [for purposes of § 667.6, subd. (d)'s mandatory full, separate, and consecutive sentences for certain sex offenses involving same victim on separate occasions, no change in location or obvious break in perpetrator's behavior required]; but see People v. Pena (1992) 7 Cal.App.4th 1294, 1316 [separate sexual acts occurring one after the other were committed on one occasion for purposes of § 667.6, subd. (d); change in positions alone insufficient to provide perpetrator with reasonable opportunity to reflect upon his actions].) Thus, imposition of consecutive sentences was not an abuse of discretion.
Even if the trial court erred by concluding counts 3 and 4 occurred on separate occasions, however, Mina has failed to establish prejudice. The trial court cited multiple factors in aggravation. Circumstances in aggravation may be considered in deciding to impose consecutive sentences. (Rule 4.425(b).) Although the trial court was precluded from using the same facts to impose both the upper and a consecutive term with respect to count 4 (rule 4.425(b)(1)), only a single aggravating factor is required to impose an upper term (Ortiz, supra, 208 Cal.App.4th at p. 1374). Similarly, only one criterion is necessary for imposition of a consecutive sentence. (People v. King (2010) 183 Cal.App.4th 1281, 1323.) In light of the factors cited by the court and its comments during sentencing, it is simply not reasonably probable it would have imposed concurrent terms on counts 3 and 4 had defense counsel timely and specifically objected to the court's reasons for imposing a consecutive sentence. Accordingly, Mina's claim of ineffective assistance of counsel fails. (See Ortiz, supra, 208 Cal.App.4th at p. 1374; People v. Alvarado (2001) 87 Cal.App.4th 178, 194-195.)
Were we to find Mina's claims cognizable on appeal and that the trial court relied on an improper criterion in imposing consecutive sentences, we would conclude the error was harmless for the same reasons. (See People v. Champion (1995) 9 Cal.4th 879, 934, overruled on another ground in People v. Combs (2004) 34 Cal.4th 821, 860; Sperling, supra, 12 Cal.App.5th at p. 1104; People v. Leon (2010) 181 Cal.App.4th 452, 468-469 People v. Prothro (1989) 215 Cal.App.3d 166, 173; People v. Bravot (1986) 183 Cal.App.3d 93, 98.)
DISPOSITION
The judgment is affirmed.
/s/_________
SNAUFFER, J. WE CONCUR: /s/_________
SMITH, Acting P.J. /s/_________
DE SANTOS, J.