Opinion
G052614
04-10-2017
THE PEOPLE, Plaintiff and Respondent, v. NEFTALI ZAMBRANO SANCHEZ, Defendant and Appellant.
Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Kelley Johnson, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 12WF2655) OPINION Appeal from a judgment of the Superior Court of Orange County, James A. Stotler, Judge. Affirmed. Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Kelley Johnson, Deputy Attorneys General, for Plaintiff and Respondent.
Neftali Zambrano Sanchez was convicted by a jury of sodomy of a child 10 years old or younger (Pen. Code, § 288.7, subd. (a); all further undesignated statutory references are to the Penal code; count 1) continuous sexual abuse of a child under 14 (§ 288.5; subd. (a); count 2) and two counts of forcible lewd act on a child under 14 (§ 288, subd. (b); counts 3, 4).
The trial court sentenced Sanchez to an indeterminate term of 25 years to life on count 1, a consecutive determinate term of 12 years on count 2, and consecutive determinate eight-year terms on both counts 3 and 4.
Sanchez challenges the judgment on five grounds: (1) the sufficiency of the evidence to prove counts 3 and 4; (2) the adequacy of the court's instruction on counts 3 and 4 (CALCRIM No. 1111); (3) the constitutionality of consecutive sentencing under section 667.6, subdivision (d); (4) the application of section 667.6, subdivision (d) to his sentence; (5) the sentence on count 1 constitutes cruel and unusual punishment under both state and federal Constitutions; and, (5) ineffective assistance of counsel. We reject Sanchez's assignments of error and affirm the judgment.
FACTS
Sanchez, then 26 years old, married N.V. in November 2005. At the time, N.V. had a five-year-old daughter, A.V., and a two-year-old son, R.V, from a previous relationship. Six years later, N.V. and Sanchez had a daughter, N.S.
In 2012, N.V. worked outside the home and Sanchez assumed primary responsibility for the children, which included transportation to and from school. On September 19, A.V., then 12 years old, became ill at school and the school nurse called her mother. N.V. was at work so she suggested Sanchez get A.V. A.V. told her mother she did not feel comfortable with Sanchez so N.V. left work and took A.V. home.
Once at home, N.V. asked A.V. why she felt uncomfortable with Sanchez. A.V. told her mother Sanchez had touched her "pee pee" and breasts while she was on the computer two days earlier (September 17). A.V. said she ignored Sanchez and he eventually walked away, but he turned around, pulled his pants down, exposed his penis through his underwear, and told A.V. to "'[c]ome lick it.'"
N.V. confronted Sanchez. He initially denied anything happened with A.V., but later Sanchez admitted "touching" A.V. without giving any details. The next day, N.V. filed a police report.
A few days later, N.V. made a recorded telephone call to Sanchez with the assistance of the police. During the call, Sanchez told N.V. "I never actually penetrated her. Uh, we didn't have sex . . . we did, I did do things to her but she was, uh, always laying in bed, touching, you know, her body against me . . . whenever I, I started playing with her she wouldn't say anything, she would follow everything that I did . . . never screaming, never crying, didn't say anything, she just wanted me to do this." When N.V. accused Sanchez of choosing A.V. "to be the one," Sanchez responded, "I didn't choose her, she chose me to make my life worse."
After the recorded phone call, Sanchez voluntarily submitted to police questioning. When the interviewer asked for Sanchez's "side of it," Sanchez responded, "it all started, um, a while ago." Sanchez explained how after N.V. would leave for work, A.V. would come into his room and try to touch him. He told A.V., "'you know what, you too little for this, you shouldn't be doing this.'" He expressed exasperation at A.V.'s tenacity, and he complained because she liked to grab his private parts and forced him to touch her private parts. Sanchez admitted A.V. touched and rubbed his penis, and that he ejaculated. However, he denied orally copulating A.V., or that she orally copulated him.
Under continued questioning, Sanchez said he had simulated anal sex with A.V. During this simulated sex act, Sanchez's pants were down and his penis erect while A.V.'s buttocks were exposed. Sanchez said he only inserted his penis between A.V.'s legs. Though he admitted putting his "hand down there," Sanchez denied digitally penetrating A.V. He did admit to touching and kissing her breasts under her clothing.
Sanchez also said "many things happened to me when I was her age, even younger." He reported having been raped several times by various family members throughout his childhood, but Sanchez said he had been able to continue on with his life, "no problem."
Following Sanchez's arrest, a member of the Child Abuse Services Team (CAST) interviewed A.V. A.V. told the interviewer Sanchez kissed her and touched her private part for the first time when she was in the second grade. Sanchez kissed her neck, touched and rubbed her vaginal area underneath her underwear, and inserted his finger into her vagina. He did this about 10 times. A.V. never told anyone because she did not realize she could go to an adult for help.
When A.V. was in the third grade, Sanchez would take off his underwear and her clothes, kiss her breasts, pull down her underwear, and put his penis ("hot dog wienie") inside her anus where the "poop" comes out. A.V. repeatedly told Sanchez to "stop, stop, and he would just keep doing it." One time, she saw a white substance come out of Sanchez's penis before he inserted it half way into her anus.
A.V. said Sanchez stopped doing "those things" when she was in the fourth grade, but he started again when she entered the fifth grade. When she was in the sixth grade, Sanchez forced A.V. to put her hand on his penis and move it up and down, and he began licking her vagina.
As for the September 17 incident, A.V. said she decided to use Sanchez's laptop computer during the afternoon. That day, her brother and sister were home, but they were watching television. When A.V. asked Sanchez for help with her schoolwork, Sanchez sat down beside her. A.V. said Sanchez's penis "started growing" as he unstrapped her bra and kissed her breasts. Sanchez slipped his hands down to her vagina and then put a finger inside. As he moved, A.V. pushed Sanchez's hands away and repeatedly told him to stop. Then she told him "you can't do this," but Sanchez responded, "yes I can." After some amount of time, Sanchez stood up, pulled down his pants, and showed A.V. his penis.
A.V. also remembered a different occasion when Sanchez put his penis between her legs, and not in her anus. Once, Sanchez put his penis in her anus and he "was going hard and then hard, hard, hard, and he had slimy things and he, he made [her] private parts slimy." A.V. also reported Sanchez pushed her head down to his "wienie" on more than one occasion. A.V. felt disgusted when Sanchez touched her. In fact, A.V.'s stomach hurt when she thought about being touched by Sanchez.
In October, a sexual assault nurse examiner conducted a non-acute sexual assault examination on A.V. A.V.'s external anal exam was normal, which the examiner testified does not necessarily mean no sexual assault occurred because of the rapid healing quality of anal tissue.
At trial, A.V. described how Sanchez molested her multiple times over a period of several years. According to A.V., Sanchez touched her frequently at home when her mother was at work, and sometimes in front of her siblings. Sanchez forced her to grab his penis and move her hand up and down. A.V. saw a white or clear material like "boogers" come out of Sanchez's penis on occasion, and she remembered how much pain his anal penetration caused. She also remembered him frequently touching her pee pee and breasts, but A.V. testified she could not remember everything she told the CAST interviewer. She denied Sanchez threatened her or disciplined her to obtain her compliance, and he did not tell her to keep quiet about what he was doing.
Defense
Sanchez called his 15-year-old daughter, L. Z., to testify on his behalf. She was about four years old when Sanchez began living with N.V., and she spent the night with him every other Saturday. Although L.Z. considered A.V. a friend, L.Z. also believed A.V. lied about things. For example, A.V. told family members attending a swimming party that L.V. had tried to drown her when, in fact, she had just swum away from A.V. A.V. also complained because Sanchez favored L.Z.
DISCUSSION
1. Sufficiency of the Evidence - Counts 3 and 4
When addressing a challenge to the sufficiency of the evidence, the reviewing court evaluates the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 318-319; People v. Story (2009) 45 Cal.4th 1282, 1296; People v. Johnson (1980) 26 Cal.3d 557, 578.)
We accept any logical inferences the jury could have drawn from the circumstantial evidence because the jury, not the reviewing court, must be convinced of the defendant's guilt beyond a reasonable doubt. (People v. Zamudio (2008) 43 Cal.4th 327, 357-358.) "If the circumstances, plus all the logical inferences the jury might have drawn from them, reasonably justify the jury's findings, our opinion that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. [Citations.]" (People v. Tripp (2007) 151 Cal.App.4th 951, 955.)
Counts 3 and 4 charged Sanchez with aggravated lewd acts on A.V., specifically her breasts (count 3) and vagina (count 4). (§ 288, subd. (b)(1).) Sanchez admits the touching, but he argues the prosecution failed to prove he did it with lewd intent "by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person . . . ." (§ 288, subd. (b)(1).)
At trial, the prosecutor argued Sanchez used fear and duress to commit the aggravated lewd acts, relying primarily on duress. When deciding whether the People produced sufficient evidence of duress or fear, we may consider the entirety of the circumstances, including the victim's age, her relationship to Sanchez, and Sanchez's reassertion of physical control after A.V. attempted to resist. (People v. Cochran (2002) 103 Cal.App.4th 8, 13-14.) In addition, "'[w]here the defendant is a family member and the victim is young, . . . the position of dominance and authority of the defendant and his continuous exploitation of the victim' [are] relevant to the existence of duress." (People v. Schulz (1992) 2 Cal.App.4th 999, 1005.)
As noted, duress can take the form of physically controlling the victim where the victim attempts to resist the sexual attack. (People v. Cochran, supra, 103 Cal.App.4th at p. 14.) On September 17, A.V. saw Sanchez's penis enlarge as he unstrapped her bra and kissed her breasts. He then slipped his hands under her clothes to touch her vagina and put a finger inside. A.V. said, "No," several times and pushed away Sanchez's hands and face, but to no avail. In fact, A.V.'s verbal protest of, "you can't do this" to me, prompted Sanchez's entitled response, "yes, I can." Considering the difference in age and size, Sanchez's parental role, and his physical and emotional control over A.V., there is ample evidence Sanchez used duress to force A.V. to participate in his abuse.
Sanchez cites People v. Veale (2008) 160 Cal.App.4th 40 and Cochran, supra, 103 Cal.App.4th 8, but neither case supports his argument. In Veale, the seven-year-old victim was molested by her stepfather in the family home, and on one occasion in a locked bedroom. (People v. Veale, supra, 160 Cal.App.4th at pp. 46-47.) Although the victim said the defendant did not threaten her or use physical force, the court found sufficient evidence of duress based on the victim's fear of the defendant, her youth, the disparity in size between the two, and the defendant's position of authority in the family. (Id. at p. 47.)
In Cochran, the defendant was the nine-year-old victim's father. (People v. Cochran, supra, 103 Cal.App.4th at p. 15.) In addition to sexually abusing the victim, the defendant gave her money and gifts and warned her not to tell anyone about the sex acts because he could get in trouble. (Ibid.) The appellate court found the defendant's use of intimidation and psychological control to obtain the victims acquiescence constituted duress. The court also stated the age and size advantage the defendant had over the victim, in addition to his status as her father, implied a threat she would break up the family if she did not comply. (Id. at pp. 15-16, fn. omitted.)
Similarly, in this case, A.V.'s stepfather took advantage of his parental role within the family to engage in serial child molestation over the course of several years. Although he never explicitly threatened A.V. or told her to keep quiet, Sanchez used his size, strength, and position of authority to psychologically control A.V. When she attempted to physically resist, Sanchez reasserted his control and verbally rebuffed her assertion he should stop. A.V. told the CAST interviewer the mere thought of Sanchez touching her made her stomach hurt. That is the essence of duress. Substantial evidence supports the jury's finding Sanchez committed the lewd acts alleged in counts 3 and 4 by means of duress. 2. Jury Instruction - Counts 3 and 4
Defendant next challenges the court's instruction on counts 3 and 4. As given, CALCRIM No. 1111 explained the People were required to prove, "1. The defendant willfully touched any part of the child's body, either on the bare skin or through the clothing. [¶] 2. In committing the act, the defendant used force, violence, duress, menace, or fear of immediate and unlawful bodily injury to the child or someone else. [¶] 3. The defendant committed the act with the intent of arousing, appealing to, or gratifying the lusts, passions, or sexual desires of himself or the child; and [¶] 4. The child was under the age of 14 years at the time of the act. [¶] Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage. Actually arousing, appealing to, or gratifying the lust, passions, or sexual desires of the perpetrator or child is not required for lewd or lascivious conduct." (Italics added.)
The italicized language is a bracketed option for CALCRIM No. 1111. Defendant asserts this sentence improperly "emphasizes for the jury certain facts that the prosecution is not required to prove." Thus, in defendant's assessment, the italicized sentence is argumentative, favors the prosecution, duplicates other instructions, and diminishes the prosecution's burden of proof. We disagree.
The court had a duty to fully instruct the jury on the applicable law. (People v. Daya (1994) 29 Cal.App.4th 697, 712.) The focus of the lewd acts crime is the perpetrator's intent, not the physical act of touching. "Indeed, the 'gist' of the offense has always been the defendant's intent to sexually exploit a child, not the nature of the offending act. [Citation.] '[T]he purpose of the perpetrator in touching the child is the controlling factor and each case is to be examined in the light of the intent with which the act was done. . . .' [Citation.]" (People v. Martinez (1995) 11 Cal.4th 434, 444.) Thus, as given, CALCRIM No. 1111 correctly stated the law and clarified the elements of the crime. (People v. McCurdy (1923) 60 Cal.App. 499, 502 ["Whether the acts actually, or in point of fact, have the effect of arousing the passions or sexual desires of the person upon whom they are committed, is immaterial. If the acts are of a lascivious nature and the intent is to arouse the passions or sexual desires of the party upon whom they are committed, then the crime is consummated"]; People v. Cordray (1963) 221 Cal.App.2d 589, 593.) The court was required to do no more and no less. 3. Consecutive Sentencing - Section 667.6
a. Constitutionality
Section 667.6, subdivision (d), states:
"A full, separate, and consecutive term shall be imposed for each violation of an offense specified in subdivision (e) [including forcible rape (§ 667.6, subd. (e)(1))] if the crimes involve separate victims or involve the same victim on separate occasions.
"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. Neither the duration of time between crimes, nor whether or not the defendant lost or abandoned his or her opportunity to attack, shall be, in and of itself, determinative on the issue of whether the crimes in question occurred on separate occasions. . . ." (Italics added.)
Section 667.6, subdivision (e)(5) applies to forcible lewd acts with a child (§ 288, subd. (b)(1)) and subdivision (e)(6) to continuous sexual abuse of a child (§ 288.5, subd. (a)).
Sanchez argues the above-italicized language in section 667.6, subdivision (d) is unconstitutionally vague and violates his constitutional right to due process. He acknowledges People v. Solis (2010) 206 Cal.App.4th 1210, 1220 (Solis)) rejected a nearly identical argument, but asserts the recently decided case of Johnson v. United States (2015) 576 U.S. ___ (Johnson) compels a different result.
In Johnson, the United States Supreme Court addressed the constitutionality of a provision for enhanced sentences when a prior conviction "involve[d] conduct that present[ed] a serious potential risk of physical injury." (18 U.S.C. § 924(e)(2)(B).) The Supreme Court concluded the phrase "conduct that presented a serious potential risk of physical injury" was unconstitutionally vague because it left uncertainty about how to estimate the risk posed by any given crime. The court reasoned judges would be required to assess the risk according to a "judicially imagined 'ordinary case' of a crime, not to real-world facts or statutory elements." (Johnson, supra, 135 S.Ct. at p. 2557.) In short, Johnson involved an undefined standard of risky conduct.
By contrast, section 667.6, subdivision (d) provides a standard for determining when crimes have been committed on "separate occasions." (Solis, supra, 206 Cal.App.4th at p. 1220.) The second paragraph of subdivision (d) directs the court to 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. Neither the duration of time between crimes, nor whether or not the defendant lost or abandoned his or her opportunity to attack, shall be, in and of itself, determinative on the issue . . . ." (§ 667.6, subd. (d).)
In our view, the phrase "the defendant had a reasonable opportunity to reflect upon his or her actions and nevertheless resumed sexually assaultive behavior," provides constitutionally adequate notice of the prohibited conduct. (See Solis, supra, 206 Cal.App.4th at p. 1220.) Consequently, we agree with Solis and reject Sanchez's constitutional challenge to section 667.6, subdivision (d) based on Johnson.
b. Application
At the beginning of the sentencing hearing, the court gave an indicated sentence: "My tentative is to sentence the defendant on count 1 to an indeterminate term of life in prison with a minimum term of 25 years. . . ." On the remaining counts, the court indicated it would impose midterm sentences. When asked if the sentences would run concurrently or consecutively, the court relied, "That is definitely going to be consecutive because there's multiple acts." In fact, the court characterized Sanchez's conduct as "really egregious."
The prosecutor argued for upper term sentences on counts 2, 3, and 4, and asserted section 667.6, subdivision (d) compelled the court to impose consecutive sentences. Defense counsel pleaded for concurrent sentencing, pointing to defendant's lack of a criminal record, and what counsel referred to as an "isolated incident" in Sanchez's life.
After considering the arguments of counsel, the court stated, "whether or not mandatory consecutive sentences in this case are required, there were multiple acts of molestation that occurred over a number of years. And if I had discretion to give concurrent time, I would not. I would give consecutive time in any event. And I look at the seriousness of this case and the impact on that victim and the family and the life-long memories that that kind of conduct basically causes."
Sanchez asserts counts 3 and 4 were parts of one continuous, uninterrupted encounter and the court should have imposed concurrent sentences. We review the court's decision to impose consecutive sentences for an abuse of discretion (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978), and here we find none.
Sanchez started by removing A.V.'s underwear, kissing and fondling her breasts. Sanchez then had ample opportunity to reflect upon his actions and nevertheless resumed sexually assaultive behavior. After overcoming A.V.'s attempts to physically resist him and ignoring her demand that he stop, he touched and digitally penetrated her vagina. These were discreet sex crimes on separate occasions within the meaning of section 667.6, not one continuous, uninterrupted encounter with the same victim. Thus, the record supports the court's imposition of consecutive sentences on counts 3 and 4.
We also reject Sanchez's related assertion the court failed to state adequate reasons for imposing consecutive sentences on all counts, and failed to discuss the sentencing factors listed in California Rules of Court, rule 4.425.
California Rules of Court, rule 4.425(a) lists the criteria affecting the decision to impose consecutive rather than concurrent sentences. The criteria includes whether or not "(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." Any other circumstance in aggravation or mitigation may also be considered. (Cal. Rules of Court, rule 4.425(b).)
The court imposed consecutive sentences, stating Sanchez committed multiple, discrete sex acts with A.V., and the court described this conduct as egregious. We agree with the court's assessment. Sanchez committed multiple independent sex acts with the same victim over the course of several years as required by section 667.6, subdivision (d). Moreover, "[t]he 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." (Cal. Rules of Court, rule 4.425(a)(3).) Thus, the court gave adequate reasons for its sentencing choices and relied on proper factors to impose consecutive sentences. 4. Cruel and Unusual Punishment - Count 1
Sanchez contends a sentence of 25 years to life for sodomy of a child 10 years old or younger violates both state and federal constitutional provisions prohibiting the imposition of cruel and unusual punishment. We disagree.
First, section 288.7 subdivision (a) mandates an indeterminate term of 25 years to life for sodomy of a child. Generally, setting the penalty for crimes "is the province of the Legislature, which is in the best position to evaluate the gravity of different crimes and to make judgments among different penological approaches. [Citations.] Only in the rarest of cases could a court declare that the length of a sentence mandated by the Legislature is unconstitutionally excessive." (People v. Martinez (1999) 76 Cal.App.4th 489, 494.)
Nevertheless, the standard for determining whether a particular sentence violates the Eighth Amendment is gross disproportionality. "The Eighth Amendment does not require strict proportionality between crime and sentence. Rather, it forbids only extreme sentences that are 'grossly disproportionate' to the crime. [Citations.]" (Harmelin v. Michigan (1991) 501 U.S. 957, 1001 (conc. opn. of Kennedy, J.), citing Solem v. Helm (1983) 463 U.S. 277, 288.) Successful challenges are "'exceedingly rare'" and appear only in an "'extreme'" case. (Lockyer v. Andrade (2003) 538 U.S. 63, 73.)
"[I]n California a punishment may violate article I, section 6, of the Constitution if, although not cruel or unusual in its method, it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity." (In re Lynch (1972) 8 Cal.3d 410, 424, fn. omitted.)
Under Lynch we examine (1) the nature of the offender, (2) compare the punishment with the penalty for more serious crimes in the same jurisdiction, and (3) compare the punishment with the penalty for more serious crimes in other jurisdictions. (In re Lynch, supra, 8 Cal.3d at p. 424, fn. omitted.) A determination of cruel and unusual punishment may be based solely on the first prong (see People v. Weddle (1991) 1 Cal.App.4th 1190, 1198-1200), but not solely on the second (see People v. Bestelmeyer (1985) 166 Cal.App.3d 520, 530-531).
Sanchez asserts his is the exceedingly rare and extreme case because he has a "minimal criminal history." However, section 288.7 is one of the "violent felonies" under section 667.5, subdivision (c)(6), and we see no constitutional violation just because Sanchez had a minimal criminal record. Since Sanchez engaged in substantial serial child sex abuse with his stepdaughter, a sentence of 25 years to life does not shock the conscience or offend fundamental notions of human dignity, nor is it grossly disproportionate to the crime or criminal. (See People v. Dillon (1983) 34 Cal.3d 441, 477-478.)
Sanchez also argues unconstitutional disproportionality by comparing his sentence to those received by someone convicted of first or second degree murder. But, a "single act of murder, while heinous and severely punished, cannot be compared with the commission of multiple felonies. [Citation.]" (People v. Cooper (1996) 43 Cal.App.4th 815, 826.) This is particularly true when the crime targets children, who are society's most vulnerable victims. . (See People v. Scott (1994) 9 Cal.4th 331, 341-342.) Sanchez repeatedly molested A.V. over the course of several years. There is no valid comparison between what Sanchez inflicted upon her over years of abuse and a single murder.
Moreover, the fact California imposes severe penalties for sodomy with a child under 10 does not render the penalty unconstitutional. "That California's punishment scheme is among the most extreme does not compel the conclusion that it is unconstitutionally cruel or unusual." (People v. Martinez (1999) 71 Cal.App.4th 1502, 1516.) In this case, based on all the facts and circumstances of the offenses and offender, Sanchez's lengthy sentence does not rise to the level of cruel and unusual punishment. 5. Ineffective Assistance of Counsel
Sanchez argues if any of the asserted instruction or sentencing errors discussed above had been forfeited by trial counsel's failure to object in the trial court then he would have received ineffective assistance of counsel. But we have considered his assertions on the merits and found no instruction or sentencing errors. Therefore, Sanchez has not shown any deficient performance by his trial counsel.
Moreover, even assuming deficient performance by trial counsel, Sanchez must also establish prejudice. Under Strickland v. Washington (1984) 466 U.S. 668, the defendant must show a reasonable probability of a more favorable result absent the error. (Id. at p. 694.) The test "must necessarily be based upon reasonable probabilities rather than upon mere possibilities; otherwise the entire purpose of the constitutional provision would be defeated." (People v. Watson (1956) 46 Cal.2d 818, 837.)
Here, A.V. testified to sufficient facts to sustain the convictions, and Sanchez's admissions corroborated most of her testimony. Defense counsel argued there was no corroborative physical evidence, and A.V. lied. But the jury rejected these arguments, and we conclude there is no reasonable probability of a more favorable result absent Sanchez's asserted errors. (Watson, supra, 46 Cal.2d at p. 837.)
DISPOSITION
The judgment is affirmed.
THOMPSON, J. WE CONCUR: BEDSWORTH, ACTING P. J. ARONSON, J.