Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Merced County. Ct. No. 30460 Carol K. Ash, Judge.
Donn Ginoza, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Janine R. Busch, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Wiseman, J.
Procedural History
Appellant Raymond Michael Parra was charged with kidnapping for rape (Pen. Code, § 209, subd. (b)(1)), kidnapping (§ 207, subd. (a)), and two counts of sexual battery while restrained (§ 243.4, subd. (a)). With respect to each count, it was alleged that Parra suffered two prior convictions with prison terms served. (§ 667.5, subd. (b).) The victim of all four offenses was Parra’s estranged wife (victim). A jury acquitted Parra of the kidnapping-for-rape charge. It found Parra guilty of the remaining charges. In a bifurcated trial, the court found one of the prior conviction allegations true and no evidence to support the other.
All further references are to the Penal Code unless otherwise noted.
Parra was sentenced to the upper term of eight years on the kidnapping count, plus one year for the prior prison term. In addition, the court imposed a one-third middle term of one year on each of the two sexual battery counts to run consecutive to each other, for a total term of 11 years. Parra’s offenses are registerable sex offenses. (§ 290.)
FACTUAL HISTORY
On December 23, 2006, Parra arranged to meet the victim at the local McDonald’s to facilitate a visit between Parra and their young son. Parra’s daughter and son from a previous relationship were with him. Parra had recently been released from prison. He and the victim were friendly although separated. No divorce proceedings had been initiated. Parra was aware that the victim had a boyfriend.
Parra suffered a prior conviction on August 8, 2005, for second degree burglary and was sentenced to three years in prison. Although Parra’s exact release date is not in the record, the victim testified that the last time she had seen Parra prior to the night of the offense, December 23, 2006, was “a few months before” when she visited him in jail. She also testified that October 20, 2006, was 60 days prior to Parra’s release.
After arriving at McDonald’s, the son vomited. Parra’s daughter took the two children inside for a soda. While the children were inside McDonald’s, Parra suggested that he and the victim sit in his car because it was cold outside. Parra asked the victim to spend the night with him at his mother’s house. The victim said no. Parra became upset and told the victim he would take what she was unwilling to give. He grabbed the handle to the passenger door to keep the victim from escaping the car and drove one or two blocks to a dead end. There were no lights, homes, or businesses in the area. Parra was angry and shouting; the victim was frightened and crying. Parra came to the passenger side and pushed the victim’s seat back. He pulled her pants partially off, exposing her vaginal area. He unbuttoned his pants and exposed his erect penis. The victim resisted and tried to keep her legs closed. Parra pulled down the victim’s shirt, exposing her breasts. He touched her vaginal area and her breasts. He pulled her hair, pushed on her throat, and grabbed her neck. He told her he could kill her right then. The victim struggled. Parra tried to force oral sex but was unable to obtain the victim’s cooperation. He grabbed her hand and forced her to stroke his penis until he ejaculated. There was no vaginal penetration. Afterward, he told the victim that he was sorry and that he loved her. He asked if she was going to call anyone. The victim got out of the car and walked back to McDonald’s.
When she got back to McDonald’s, she took her son and left. She did not tell the other children about the assault. Parra’s daughter testified that Parra and the victim were gone about 20-25 minutes and that when they returned, the victim was not crying and nothing seemed unusual. Once the victim left McDonald’s, however, she drove to the police station and reported the assault.
Officer Galindo took the report and recorded an interview with the victim. He said the victim was crying, shaken up, and had red marks in the neck area. Galindo observed what appeared to be the shape of a handprint on her neck and thumbprints on both sides of her neck. He also saw stains on her pants and collected the pants as evidence. Later, the pants tested positive for semen. Semen was also found in Parra’s car. The semen was tested for DNA and was matched to Parra.
After the victim made the report, Parra was arrested at his mother’s house. He was caught attempting to leave through the back door when police arrived. Parra’s mother contacted the victim and asked her, “Please don’t do this.” The victim wrote a letter to the district attorney asking that the charges be dropped because of her mother-in-law’s request and because she did not want to have to come to court. She did not write the letter because she was lying about the assault.
The defense elicited evidence that, prior to the assault, the victim sent Parra numerous text messages saying that she wanted them to be a family. On October 20, 2006, the victim wrote a letter to Parra saying that she loved him and wanted to get back together.
Discussion
I. Failure-to-object/fresh-complaint rule
Parra contends he was denied effective assistance of counsel because his defense attorney failed to object when Officer Galindo testified about the details of the victim’s complaint to police. Parra concedes evidence that the victim made the report was admissible for a nonhearsay purpose under the “fresh complaint” rule. (People v. Brown (1994) 8 Cal.4th 746, 755 [fresh-complaint rule allows admission of otherwise hearsay evidence that victim complained of sexual assault].) Parra, however, contends that the details of the report, i.e., what the victim said, were not. (Ibid.) The purpose of the fresh-complaint rule is to forestall the potential assumption of a jury that a woman who fails to tell someone she has been assaulted may be fabricating the assault. The rule allows evidence that the woman was not silent, i.e., that she made a complaint. (Ibid.) “Since the 19th century, California courts have relied upon the fresh-complaint doctrine to support the admission of a complaint made by the victim of an alleged sexual offense, but only for a nonhearsay purpose, i.e., not to prove the truth of the content of the victim’s statement but, rather, simply to show that a prompt complaint was made.” (Ibid.)
No objection was made to questions asking about what the victim had told Galindo in making her complaint. The failure to do so precludes a direct challenge to this evidence on appeal. (Evid. Code, § 353; People v.Beach (1983) 147 Cal.App.3d 612, 628.) In implicit acknowledgement of this long-settled rule, Parra frames his challenge as an ineffective-assistance-of-counsel claim and argues that defense counsel’s failure to object allowed evidence that was prejudicial to him in violation of the Sixth Amendment. We reject Parra’s claim.
A defendant cannot prevail on a claim of ineffective assistance of counsel unless he can establish that (1) counsel performed at a level below an objective standard of reasonableness under prevailing professional norms, and (2) prejudice resulted from the deficient performance of counsel. (People v. Scott (2000) 83 Cal.App.4th 784, 792.) Unless a defendant can make a sufficient showing on both of these components, the claim fails. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1126.) Parra has not established either prong of his claim.
First, a review of Officer Galindo’s testimony reveals that he did not testify on direct examination about the details of the victim’s complaint in violation of the fresh-complaint rule. He was asked whether a report was made, about his personal observation of the victim’s emotional state, whether she claimed any visible injuries, whether she claimed that weapons were used, and whether she could identify the perpetrator. The victim’s identification of Parra as the perpetrator was admissible under Evidence Code section 1238. The other questions were not intended to elicit evidence offered to prove the truth of the matter asserted, but to prove the nature of the earlier complaint. During redirect examination, the officer did not recount in detail what the victim said to him. To the contrary, the majority of Galindo’s redirect examination was centered on the missing recording. The only questions asked about the victim’s report were whether she reported a sexual assault and whether she reported penile penetration.
As the court explained in Brown, the circumstances of a victim’s complaint may be relevant for a variety of nonhearsay purposes, including whether the victim fabricated the nature of the complaint at a later date. (People v. Brown, supra, 8 Cal.4th at p. 761.) Officer Galindo’s testimony was relevant on this issue. Since the evidence was admissible under Brown, there was no duty to make a meritless objection to it. (People v. Cudjo (1993) 6 Cal.4th 585, 616.)
Additionally, a decision to object is inherently tactical, and the failure to do so rarely will establish ineffective assistance of counsel. (People v. Hillhouse (2002) 27 Cal.4th 469, 502; People v. Kelly (1992) 1 Cal.4th 495, 520.) Parra must overcome the presumption that defense counsel’s failure to object was the result of trial strategy. (Strickland v.Washington (1984) 466 U.S. 668, 689; People v. Kelly, supra, at p. 520.) During cross-examination of Officer Galindo, defense counsel elicited testimony concerning the actual words used by the victim in her report. He was asked whether the victim said she was “in the process of getting a divorce” and whether she had said that Parra’s daughter “was at the scene as well.” Galindo was asked whether the victim said she had gotten in the car voluntarily and whether she said that Parra told her “we’re going to have sex” and “if you don’t give it to me, I’m just going to take it.” Defense counsel’s questioning highlighted the slight variation between Galindo’s written report and the victim’s testimony at trial, particularly on the question of force. This type of strategy is often intended to show the jury that the victim is not entirely credible. As a reviewing court, we must be careful not to second-guess the wisdom of such tactical choices. (People v.Avena (1996) 13 Cal.4th 394, 444.) Further, as is often the case, when the record fails to show what, if any, tactical decisions were made by counsel, there is a strong presumption that counsel’s actions fall within the range of reasonable conduct. (Strickland v. Washington, supra, at p. 689; People v.Wilson (1992) 3 Cal.4th 926, 936.)
Even if a reasonably proficient attorney would have objected to Galindo’s testimony on direct examination and had meritorious grounds to do so, Parra has not shown any prejudice. The victim testified about the assault and her report to Galindo. Her testimony was credible and corroborated in a number of respects. When she reported the incident immediately after leaving McDonald’s, her physical and emotional state was consistent with her testimony at trial. Parra’s semen was found on the victim’s clothing and in the car, as would be expected from the victim’s testimony. Officer Galindo saw red marks on the victim’s neck consistent with a handprint, with two thumbprints on both sides of her neck. This physical evidence corroborates the victim’s statement that Parra used force to keep her in the car and at one point grabbed her neck to choke her. Even if Galindo had not been asked about the nature of the victim’s complaint, there was physical evidence to support her claim that force was used. It is not enough for Parra to show that counsel’s failure to object to Galindo’s testimony had some conceivable effect on the outcome of the proceedings. (People v. Cox (1991) 53 Cal.3d 618, 656.) He must show that it is reasonably probable he would have obtained a more favorable result absent counsel’s failings. (People v. Lewis (1990) 50 Cal.3d 262, 288.) He cannot do so.
II. Audio recording
Parra contends that he was denied federal due process when the prosecution failed to provide him with a copy of the audio recording Officer Galindo made at the time he spoke with the victim to take her report. Parra relies on Brady v. Maryland (1963) 373 U.S. 83, 87, which held that the suppression of evidence favorable to an accused upon request violates federal due process when the evidence is material to guilt or punishment, regardless of the good faith or bad faith of the prosecution. We reject Parra’s contention for a number of reasons.
Officer Galindo testified that an audio recording was made and that it was logged into the evidence locker. After that, he had no knowledge of where the recording had gone and no knowledge about why it was not provided to the prosecutor or the defense. Parra did not raise this issue before the trial court, other than to question Galindo about the recording’s whereabouts. No request was made for the trial court to order the recording produced. In addition, no motion was made to prevent Galindo from testifying about the report he took from the victim given the absence of the recording. We will not consider claims of error that could have been but were not raised in the trial court. (People v. Turner (2002) 96 Cal.App.4th 1409, 1412; People v. Saunders (1993) 5 Cal.4th 580, 589-590.)
In addition, there is no direct evidence that the audio recording was not provided to the defense. There is no evidence that the recording was ever actually requested by the defense. Defense counsel asked Galindo, “Do you have any idea why [the recording] was never provided to myself or to the D.A.?” Questions of counsel are not evidence. (People v. Hamilton (2009) 45 Cal.4th 863, 928-929.) As a result, the record does not establish any of the necessary prongs of a Brady claim. We also cannot determine what happened to the recording, whether the recording could have been located had the court ordered it produced, or even if the recording was produced. In short, there is an inadequate record to consider the issue. (See Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416 [if record is inadequate for meaningful review, appellant defaults and decision of trial court is affirmed]; Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296 [failure to provide adequate record requires that issue be resolved against appellant]; Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132 [appellant has burden of providing record sufficient to support claim of error].)
Additionally, “[w]hatever duty the Constitution imposes on the States to preserve evidence, that duty must be limited to evidence that might be expected to play a significant role in the suspect’s defense. To meet this standard of constitutional materiality, [citation], evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” (California v. Trombetta (1984) 467 U.S. 479, 488-489, fn. omitted; accord, People v. DePriest (2007) 42 Cal.4th 1, 41.) Parra cannot meet either of these two tests. The audio recording at the time it was made apparently did not, based on this record, contain any exculpatory evidence. There were no other statements or testimony available at the time with which it might be inconsistent. More importantly, the defense could and did obtain comparable evidence. Both Officer Galindo and the victim were subject to cross-examination on what was said, and Galindo’s written report was provided to the defense. (See Killian v. United States (1961) 368 U.S. 231, 243-244 [no constitutional error when preliminary notes to key FBI report made while interviewing witnesses were destroyed even though notes would have been helpful to defense].)
Lastly, the state’s responsibility to preserve evidence is further limited when the evidence is only potentially useful to the defense. In these cases, the defendant must show bad faith by police in failing to preserve the evidence. (People v. DePriest, supra, 42 Cal.4th at p. 42, citing Arizona v. Youngblood (1988) 488 U.S. 51, 57-58.) Since the recording is only potentially useful to the defense, there is no showing that anything in the recording was exculpatory, and Parra must show bad faith in the failure to preserve the recording. He has not made this showing.
III. Asportation instruction
Parra claims he was denied due process because the instructions to the jury explaining what was needed to prove the asportation element of kidnapping were incomplete and allowed the jury to convict without finding that the victim was moved a substantial distance. A trial court “is obligated to instruct the jury on all general principles of law relevant to the issues raised by the evidence, whether or not the defendant makes a formal request.” (People v. Blair (2005) 36 Cal.4th 686, 744.)
The asportation element of simple kidnapping (§ 207) requires that the victim be moved a substantial distance. (People v. Martinez (1999) 20 Cal.4th 225, 235.) The statute does not define the movement in terms of any specific distance and, therefore, there is nothing that limits the asportation element to actual distance. (Id. at p. 236.) A jury is to be instructed that, in determining whether the movement is substantial in character, it should consider the totality of the circumstances. The jury may properly consider not only the actual distance the victim is moved, but also whether the movement increased the risk of harm to the victim, decreased the likelihood of detection, increased the danger, limited a victim’s ability to escape, or increased the opportunity to commit additional crimes. (Id. at p. 237.)
The jury here was instructed according to the standardized jury instruction, Judicial Council of California Criminal Jury Instructions (CALCRIM) No. 1215, as follows:
“The defendant is charged in Count 2 with kidnapping. To prove that the defendant is guilty of this crime, the People must prove that: [¶] One, the defendant took, held or detained another person by using force or instilling reasonable fear; [¶] Two, using that force or fear, the defendant moved the other party a substantial distance. [¶] Three, the other person did not consent to the movement. [¶] And, four, the defendant did not actually and reasonably believe that the other person consented to the movement. [¶] … [¶]
“‘Substantial distance’ means more than a slight or trivial distance. In deciding whether the distance was substantial, you must consider all of the circumstances relating to the movement. Thus, in addition to considering the actual distance moved, you may also consider other factors, such as whether the movement increased the risk of physical or psychological harm, increased the danger of a foreseeable escape attempt or gave the attacker a greater opportunity to commit additional crimes or decrease[d] the likelihood of detection.”
Parra contends that the instruction is inadequate because it fails to incorporate the question of whether the movement was “merely incidental to the commission of the associated crimes,” citing People v. Washington (2005) 127 Cal.App.4th 290, 302. The court in Washington considered whether the brief movement of a robbery victim within a business premise qualifies as aggravated kidnapping. The Washington court looked at Martinez for guidance. It observed that the Martinez court said that “contextual factors, whether singly or in combination, will not suffice to establish asportation if the movement is only a very short distance. [¶] In addition, in a case involving an associated crime, the jury should be instructed to consider whether the distance a victim was moved was incidental to the commission of that crime in determining the movement’s substantiality.…” (People v. Martinez, supra, 20 Cal.4th at p. 237.) According to Parra, this precedent requires the jury to be instructed that the movement needed for simple kidnapping cannot be movement merely incidental to the crime. He argues that, in this case, there is strong evidence that Parra’s movement of the victim was incidental to the commission of the sex offenses because the jury “could also have easily concluded that [Parra] chose the closest location where he could partially undress himself and [the victim] so as to actually perform sexually.”
Parra misses the mark. Movement merely incidental to the crime is movement that is part of the crime itself. For example, robbery sometimes requires movement to get to the property sought. (E.g., see People v. Washington, supra, 127 Cal.App.4th at p. 299 [moving victim 15 feet from teller area of bank to its vault is incidental movement in robbery].) No movement is required for the crimes committed in this case. It simply made it easier for Parra to assault the victim and less likely that he would be detected. Movement that is intended merely to make commission of the crime easier, the victim more vulnerable, or the offender less detectable, is not considered “incidental” movement. (See People v. Aguilar (2004) 120 Cal.App.4th 1044, 1047 [victim moved 133 feet down sidewalk to unlit area]; People v. Shadden (2001) 93 Cal.App.4th 164, 167 [dragging store clerk nine feet from front counter of store to small back room for purpose of raping her is asportation]; People v. Diaz (2000) 78 Cal.App.4th 243 [victim moved 150 feet to back of building in unlit park after passerby notices attack]; People v. Jones (1999) 75 Cal.App.4th 616, 629 [forcibly moving robbery victim 40 feet within parking lot into car is asportation]; People v. Salazar (1995) 33 Cal.App.4th 341, 347 [dragging victim into motel room from hallway not incidental to rape; defendant could have raped victim outside motel room door and avoided moving her at all].)
In any event, instructional error, even of constitutional magnitude, does not require reversal if it is harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Dominguez (2006) 39 Cal.4th 1141, 1160.) In this case, even if the trial court should have instructed the jury that movement incidental to the commission of the crime is not asportation for the purposes of simple kidnapping, we still would conclude the error is harmless beyond a reasonable doubt. Parra moved the victim from a McDonald’s parking lot where there were people present, and Parra’s children were likely to return, to an isolated location at least a block away. Even if the jury had been instructed as Parra requests, it is not improbable that the jury would have concluded that the movement was incidental to the crime.
IV. Marital immunity
Parra contends that he cannot be convicted of sexual battery because he was the victim’s husband at the time of the offense and, under residual common law, he is immune from prosecution. According to Parra, when the Legislature abolished the marital-rape exemption in 1979 by criminalizing spousal rape, and when the Legislature in 1990 further abrogated consent based on marital status as a defense for rape and other enumerated sexual offenses, it left sexual battery untouched and consequently the offense is governed by common law. Residual common law, argues Parra, provides a husband with the legal right of sexual access, with or without the wife’s consent. We reject Parra’s argument.
Section 243.4, the statute creating the offense of sexual battery, was enacted in 1982. (Stats. 1982, ch. 1111, § 1, p. 4024.) It reflected the modern understanding that sexual offenses short of rape are physically and psychologically traumatic for the victim, extending beyond the more traditional crimes of battery and misdemeanor assault. (See Press Release from bill author, Office of Assembly Speaker Pro Tempore Leo McCarthy, dated June 15, 1982, regarding Assem. Bill No. 2721 (1981-1982 Reg. Sess.) § 1.) The offense created by the enactment of section 243.4 was a new offense, one that did not exist at common law. (Legis. Analyst, Analysis of Assem. Bill No. 2721 (1981-1982 Reg. Sess.) as amended Aug. 3, 1982, p. 45.) Parra argues that, because the Legislature did not expressly state that a husband could be liable for the commission of a sexual battery against his wife, the Legislature must have intended for the common-law spousal immunity attaching to sexual penetration crimes, rape, sodomy, and oral copulation, to survive the abolishment of the marital exemption for forcible spousal rape. He also argues that, because section 261.6 does not expressly list section 243.4 in its provision stating that “[a] current or previous dating or marital relationship shall not be sufficient to constitute consent where consent is at issue in a prosecution under Section 261, 262, 286, 288a, or 289,” the Legislature intended that the marital exemption remain applicable in section 243.4 offenses. We disagree.
First, as the respondent correctly has noted, since 1872 the only crimes and defenses viable in California are those created by statute. (See Keeler v. Superior Court (1970) 2 Cal.3d 619, 631-632; People v. Vasilyan (2009) 174 Cal.App.4th 443, 449 [there is no criminal common law in California after passage of section 6 in 1872]; People v. Whipple (1929) 100 Cal.App. 261, 262 [“In this state the common law is of no effect so far as the specification of what acts or conduct shall constitute a crime is concerned”].) Therefore, Parra’s argument that a common-law defense survives in California absent express or implicit abrogation is incorrect.
Second, there is nothing in the language or history of section 243.4 to support Parra’s contention that it contains a marital exemption. In construing a statute, we look first to its actual words. (Peoplev.Valladoli (1996) 13 Cal.4th 590, 597.) Nothing in section 243.4 suggests that it does not protect a wife from the sexual assaults of her husband, even though the Legislature had no problem articulating such a marital exemption when defining an offense. (See §§ 261 & 262, distinguishing between rape by a stranger and rape by a spouse.) At the time section 243.4 was enacted, the marital exemption for forcible sex crimes had long been eliminated. “[T]he Legislature added Penal Code section 262 for the sole purpose of eliminating the marital exemption for forcible spousal rape, and not to define a new and separate offense, apart from rape by a stranger, of spousal rape. [Citations.]” (People v. Hillard (1989) 212 Cal.App.3d 780, 784.)
The failure to include section 243.4 in section 261.6 can be explained in a number of ways. Sections 261.6 and 243.4 were enacted in the same bill, Assembly Bill No. 2721. (Stats. 1982, ch. 1111, §§ 1 & 3, pp. 4024-4025; see also Sen. Republican Caucus, Analysis of Assem. Bill No. 2721 (1981-1982 Reg. Sess.) as amended Aug. 3, 1982, pp. 1-2.) Section 261.6 was intended as a legislative response to problems created by the then-existing consent instruction. At that time, the standard instruction allowed circumstances such as the lack of a weapon, the failure to resist, or previous acquaintance with the perpetrator, to show lack of consent in crimes where consent had been an issue, specifically those offenses listed in section 261.6. (Youth and Adult Correctional Agency, Enrolled Bill Rep. on Assem. Bill No. 2721 (1981-1982 Reg. Sess.) p. 2.) The original common-law marital exemption was based on the concept that a woman marrying gave blanket consent to sexual intimacy, which could be revoked only by ending the marriage. (See 48 Stan. L.Rev. 677, 681.) The issue of consent had not come up in connection with section 243.4 offenses because the offense did not yet exist; the concept of blanket consent upon marriage to sexual intimacy had already been rejected by the Legislature when section 243.4 was enacted.
Finally, the fundamental purpose of statutory construction is to ascertain the intent of the lawmakers to effectuate the purpose of the law. (Peoplev.Carron (1995) 37 Cal.App.4th 1230, 1236.) The concept that a wife is required to submit to her husband’s request or demand for sexual favors had long been rejected by our society. We now consider spouses to be coequal in a marriage relationship. (See 99 Harv. L.Rev. 1255, 1256.) We presume that the Legislature knew the marital exemption had disappeared from our Penal Code at the time section 243.4 was enacted. (Scott Co. v. Workers’ Comp. Appeals Bd. (1983) 139 Cal.App.3d 98, 105 [courts assume that when enacting statute, Legislature aware of existing related laws].) Section 261.6 was enacted in order to make it harder for the defense to prove consent using old stereotypes, such as a woman’s failure to resist as evidence of consent. The statute defines consent as “positive cooperation in an act or attitude pursuant to an exercise of free will.” (§ 261.6.) There is nothing in the legislative history of section 243.4 that suggests, nor will we presume, that the California Legislature intended when it enacted section 243.4 in 1982 to incorporate the then-already abolished marital exemption for sexual offenses. (See 48 Stan. L.Rev. 677, 681-682 [in 1981, 10 states barred prosecutions of husbands for marital rape, but by 1990, no state retained absolute marital-rape exemption].) Instead, if we harmonize the statutes, as we are obligated to do (Dyna-Med, Inc. v.Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1387), we must conclude that the Legislature intended when it enacted section 243.4 that consent for all sexual offenses in California be as it is now commonly understood—an act of free will without regard to marital status.
V. Due process claim
Parra also contends that his conviction for sexual battery denied him due process of law because he was “denied fair warning that his conduct violates the Penal Code.” Parra argues that, prior to 1979, a husband could presume that he would not be vulnerable to claims by his wife that he had raped her. He also claims without authority that, following the “measured abrogation of the marital rape exclusion,” a husband could continue to believe that he could not be prosecuted for “unwanted and unconsented touching for sexual gratification, such as those for which appellant was convicted here.” His claim lacks merit for many of the reasons we have already listed.
First, prior to the passage of section 243.4, there was no offense of sexual battery. Conduct now punishable under section 243.4 was prosecuted as an assault or battery depending on the nature of the offense. (Sen. Comm. on Judiciary, Analysis of Assem. Bill No. 2721 (1981-1982 Reg. Sess.) as amended Apr. 15, 1982, p. 4.) Parra has cited no authority holding that marital status was a defense to either of these two crimes. Second, even if we accept Parra’s contention as true, the passage of section 243.4 without any language exempting a spouse from culpability provided notice of universal application. Remember, the abrogation of the marital-rape exclusion was needed because the crime of rape historically included in its definition of potential victims, “a female, not his wife.” (Former § 261.) In addition, section 6 of the Penal Code unequivocally states that no defenses to crimes exist outside the code itself. We conclude there is no due process violation.
VI. Sentencing
Parra’s last contention also lacks merit. He argues that the trial court abused its discretion when it imposed consecutive sentences on the sexual battery counts. He also contends that defense counsel was ineffective because he failed to object.
The trial court stated its reasons on the record at the time of sentencing. It found that the crime involved great violence and threat of bodily harm, that the crime was extremely vicious, and that Parra had taken advantage of his position of trust in committing the crime. The court noted that it had observed the victim testifying and saw how difficult it was for her to talk about the crime committed against her. The court also noted the increasing seriousness of Parra’s criminal history, although the court observed that Parra’s prior convictions were not for violent or assaultive offenses. The court also stated that Parra was on probation or parole at the time the crime was committed and that his performance on probation or parole was not satisfactory. In fact, Parra had only been released from custody for a short period of time when he assaulted the victim.
After identifying and considering these factors—all permissible under the applicable rules of court (Cal. Rules of Court, rules 4.425 & 4.421)—the court imposed the upper term on the kidnapping count and imposed one-third the middle term on the two sexual battery counts, ordering them served consecutively to the kidnapping counts. Parra argues that the crimes were close in time and constituted a single aberrant behavior, and therefore it was an abuse of discretion not to order concurrent terms. Although these two factors are identified as criteria that could be justification for concurrent terms, Parra has cited no authority holding that these are the controlling factors in deciding whether to impose concurrent or consecutive sentences. To the contrary, these are merely criteria “affecting” the trial court’s decision. (Cal. Rules of Court, rule 4.425.) Even in the presence of these factors, the decision whether to impose consecutive sentences remains within the trial court’s discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 850 [trial judge has discretion to make numerous sentencing choices, including whether to impose consecutive terms].) In addition to the factors identified in rule 4.425(a), the rule in subpart (b) provides that “[a]ny circumstances in aggravation or mitigation may be considered in deciding whether to impose consecutive rather than concurrent sentences,” except those listed in subparts (1), (2), and (3) of the rule, none of which are applicable here. (Cal. Rules of Court, rule 4.425(b).) The court has always been free to weigh aggravating and mitigating factors in terms of both quality and quantity. (People v. Roe (1983) 148 Cal.App.3d 112, 119.) It is not required to assign the same weight to mitigating factors argued by a defendant and may minimize or even dismiss mitigating factors without stating its reasons. (People v. Salazar (1983) 144 Cal.App.3d 799, 813; People v. Jones (1985) 164 Cal.App.3d 1173, 1181.)
It is true that the court did not distinguish between the facts used to justify the upper term and those used to justify the consecutive sentence. The court, however, identified more than enough facts to justify both sentencing choices. A trial court need not separately state its reasons for imposing consecutive sentences. Further, only one factor is needed to impose a consecutive sentence, and only one aggravating factor is required to impose an upper term. (People v. Bejarano (1981) 114 Cal.App.3d 693, 705; People v. Bishop (1984) 158 Cal.App.3d 373, 382-383; People v. Castellano (1983) 140 Cal.App.3d 608, 614-615.) “In making such sentencing choices, the trial court need only ‘state [its] reasons’ (§ 1170, subd. (c)); it is not required to identify aggravating and mitigating factors, apply a preponderance of the evidence standard, or specify the ‘ultimate facts’ that ‘justify[] the term selected.’ (Compare Cal. Rules of Court, rule 4.420(e) with rule 4.406(a).) Rather, the court must ‘state in simple language the primary factor or factors that support the exercise of discretion.’ (Cal. Rules of Court, rule 4.406(a).)” (People v. Sandoval, supra, 41 Cal.4th at pp. 850-851.) The court complied with its duty.
Since we have concluded that the trial court did what it was obligated to do, any objection by counsel would have been meritless. (See People v. Cudjo, supra, 6 Cal.4th at p. 616 [no ineffective representation for failure to object where there is no sound basis for objection].) For this reason, the ineffective-assistance-of-counsel claim fails as well.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Ardaiz, P.J.Gomes, J.