Opinion
C075423
07-17-2018
THE PEOPLE, Plaintiff and Respondent, v. IVAN ANDREW SMITH, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 13F01036)
Defendant Ivan Andrew Smith appeals his convictions for two counts of rape and one count of unlawful oral copulation. He contends the prosecutor's comments in closing argument on his failure to testify, in violation of Griffin, were prejudicial; alternatively, he argues defense counsel's failure to object to the prosecutor's closing argument was ineffective assistance of counsel; the trial court failed to state adequate reasons for imposing a full consecutive sentence under Penal Code section 667.6, subdivision (c); and the clerk's minutes must be corrected to reflect the sentence imposed. We agree the minute order must be corrected. In all other respects, we affirm the judgment.
Griffin v. California (1965) 380 U.S. 609 .
BACKGROUND
Jane Doe claimed defendant, her half brother, raped her and orally copulated her. Defendant claimed the acts were consensual, and Doe's claims were a matter of "buyer's remorse," because she felt shame after having sexual intercourse with her half brother.
The victim in this case is referred to as Jane Doe in the charging documents. The trial court granted the prosecution's motion to exclude any reference to the victim's first and last name, and have the parties refer to her as Jane Doe at trial.
Past Relationship
Defendant and Jane Doe were half siblings through their father. Doe grew up with her mother and saw defendant sporadically during their childhood.
One night in 2000, defendant asked to stay with Doe. Because Doe's cousin and her family were also staying in the two-bedroom apartment, Doe let defendant sleep in the bed with her. There had never been any problems between them, so she did not think this would be a problem. They fell asleep, and later Doe woke up and felt defendant "pull [her] panties down a little bit." Doe pulled them back up. Doe allowed defendant to stay in the bed with her and he did not try anything else. She did not say anything to defendant and they never spoke about the incident.
Between 2000 and 2009, defendant visited Doe occasionally and would sometimes spend the night, or a few nights, at her apartment. He often said inappropriate things, but he did not make sexual advances toward Doe or touch her.
In August 2009 defendant had been kicked out of his cousin's house, so Doe let him stay with her for about two and a half weeks. On August 18, 2009, defendant had been drinking all day. Doe and defendant got into a verbal altercation. Defendant was belligerent and "cussing [Doe] out" and then the fight escalated and became physical. Defendant pushed Doe and tried to hold her down on the couch by her throat. Eventually Doe kicked defendant out of the apartment and threw his belongings outside. Defendant went to Doe's neighbor's apartment. Doe was going to her neighbor's house when defendant came out of the apartment and started trying to fight with Doe, "like punching and swinging" at her. Doe returned to her apartment and defendant began "knocking, punching, trying to get in the door, kicking it, telling [Doe she] better open up the fucking door." Later, Doe went outside to smoke a cigarette. Defendant was on the porch. They started arguing again, and eventually defendant started choking Doe and "kind of pushing her over the railing." Then he began punching Doe. Doe fought back, at one point maneuvering defendant to the ground and hitting his head on the ground. Eventually, Doe, her friend Crystal Hamilton, and one of Doe's daughters, were able to restrain defendant. Hamilton called the police. As a result of this fight, Doe had a bloody nose and a broken hand. Her hand required surgery. Also as a result of the fight, defendant was ordered to stay away from Doe and her daughter for three years.
After the three-year period expired, defendant started coming to Doe's apartment again. He would constantly argue with her and bring up the 2009 fight. He blamed her for getting him in trouble and his not being able to go to school.
February 2013—Sexual Assault
On February 8, 2013, defendant went to Doe's apartment and asked her to do his hair and she did. Defendant irritated Doe, but they had no other problems.
The next evening, defendant came to Doe's apartment again. She was home with her three younger children. Once the children were asleep, Doe and defendant began smoking marijuana and drinking beer. Doe started feeling dizzy, so she ate some hot dogs and went to sleep in her bedroom. Defendant remained in the living room.
When Doe woke up, defendant was in her room, trying to pull the blanket off her. She "jumped up and was, like, what the hell are you doing." Defendant answered, "You fucked it all up. Why did you have to say anything?" Doe said, "What are you doing; I'm your sister, you are tripping." Defendant agreed. Doe pushed him out of the room. Doe then went to get her three-year-old daughter to sleep in the bed with her. She believed this would be a deterrent to defendant.
Doe woke up again later, as defendant was trying to take off her underwear. He ripped her underwear off, then got on top of her and put his penis inside her. He was saying a "bunch of sick stuff." Doe kept saying she was his sister and tried to push him off but could not. Defendant held Doe's arms down during the assault. During the struggle, defendant's penis fell out and he put it back inside Doe. Doe decided to stop fighting and defendant asked if she was "just going to play dead." She answered, "Yes." Defendant also orally copulated Doe. The second time defendant orally copulated Doe, she was able to "wiggle" away from defendant.
Doe told defendant to get out and he told her he would be back in 15 minutes, because he was not done. Doe went to the kitchen, rinsed out her mouth and returned to her room. She placed a chair in front of the bedroom door, which successfully kept defendant out of the room.
The next morning, Doe's neighbor, Chequita Davis, came to the apartment. She saw defendant in the living room. Doe called Davis into the bedroom. Doe was lying on the bed, and looked like she was "in shock" and "kind of . . . in a daze." Doe told Davis that defendant had raped her and orally copulated her. While they were talking, defendant came in the room and when Doe saw him, she ran to the bathroom. Davis told Doe to take a shower and calm down. Davis also told Doe she would get help. Davis got a hammer from her apartment and went and got another neighbor, Quivina Johnson. Davis and Doe confronted defendant. Defendant said Doe was lying. He looked over at Doe and said, "[N]ow, come on, tell the truth. Is that the way it really happened?" Eventually, Davis and Johnson got defendant out of the apartment and Doe called 911.
Sacramento County Sheriff's Deputy Stacy Waggoner responded to Doe's call. When Waggoner arrived, defendant was standing on the front porch of the apartment. Waggoner interviewed Doe. Doe identified defendant as her half brother. She acknowledged she had been drinking and smoking marijuana. She also acknowledged she was bipolar and had not taken her prescribed medications.
Doe reported defendant had ripped off her underwear and put his penis inside her vagina. She tried wiggling away from him, and his penis slipped out a couple of times and he would put it back in. Defendant also licked her vagina and kissed her breasts. She also told Waggoner at one point she stopped fighting and defendant asked if she was going to play dead. She answered, "If that's what I have to do to get it over with." Doe gave Waggoner the robe and underwear she had been wearing. Doe also gave a consistent report to Detective Bradley Jones, including that she had brought her three-year-old daughter in the room to deter any further assault from defendant.
Robyn Chatman-Bolds, a nurse practitioner, performed an examination on Doe. Doe admitted she had used both drugs and alcohol prior to the assault. Doe told Chatman-Bolds defendant had sexually assaulted her between 2:00 and 3:00 a.m. She said he held her arms down, penetrated her vagina with his penis, and licked her vagina. Doe was not sure whether defendant had ejaculated.
Chatman-Bolds collected blood and urine samples, as well as oral, vaginal, and cervical swabs. She was not able to observe any motile or nonmotile sperm on the slide she prepared. She did not observe any physical injuries to Doe. However, she noted there was no correlation between the existence or nonexistence of injuries and whether the sexual acts were consensual. Criminalist Megan Wood analyzed penile swabs taken when defendant was arrested, vaginal swabs, and cervical swabs for bodily fluid identification and DNA analysis. She found a high level of amylase on the vaginal swabs collected from Doe. This is an enzyme found in saliva and other bodily fluids. She also found semen and sperm cells on the penile swabs taken from defendant. Woods found a partial DNA profile from the penile swab that was consistent with Doe's DNA.
Criminalist Matthew Nakayama analyzed Doe's blood samples. He determined the sample did not contain a detectable amount of drinking alcohol. Criminalist Jeremy Zerbe analyzed Doe's urine sample and found it tested positive for marijuana.
PROCEDURAL HISTORY
An information charged defendant with three counts of rape (Pen. Code, § 261, subd. (a)(2)—counts one, two, & four), one count of unlawful oral copulation (§ 288a, subd. (c)(2)—count three), and one count of incest (§ 285—count five). A jury found defendant guilty on counts one, two, and three and acquitted him on counts four and five. The court sentenced defendant to a term of 18 years, three fully consecutive terms of six years.
Undesignated statutory references are to the Penal Code. --------
DISCUSSION
I
Defendant contends "repeated Griffin violations by the prosecutor in violation of [defendant's] Fifth Amendment right against self-incrimination require reversal." Defendant cites three instances in closing argument and two in rebuttal in which the prosecutor stated the evidence was uncontroverted. He claims the only way Doe's testimony could have been refuted was by defendant taking the stand; therefore, the prosecutor's argument must have been in reference to the fact that defendant did not testify. We find this claim forfeited by defendant's failure to object in the trial court. Alternatively, defendant contends defense counsel was ineffective in failing to object. We do not find ineffective assistance of counsel.
Background
In closing argument, the prosecutor discussed the evidence of the 2000 incident between defendant and Doe. The prosecutor described the incident and her burden of proof in proving that incident. She went on to say, "But my point is that evidence was uncontroverted. She gave you the information about what happened, the same information that she provided to Deputy Waggoner, the same information that she provided to Detective Jones. Uncontroverted. The burden has been met, preponderance of the evidence. There's no evidence to the contrary that that occurred."
In discussing the 2009 fight between defendant and Doe, the prosecutor again recounted the incident that Doe had called the sheriff's department and defendant had been ordered to stay away from Doe and her daughter. She then said, "Again, did you hear any evidence to the contrary? Did anyone sit in that chair and tell you that didn't happen? Did anyone give any different information? No. Miss Doe testified about it. Miss Hamilton testified about it. They both said the same or very similar things about what happened. Uncontroverted. This defendant assaulted her in 2009."
The prosecutor then moved on to the charged offense. As to the beginning of the assault, she recounted when Doe awoke the second time: "She says she feels ripping, hears tearing, and the defendant is removing her underwear and gets on top of her; puts his penis in her vagina. Uncontroverted. No evidence to the contrary. He put his penis in her vagina."
The prosecutor noted that Doe's testimony was consistent with her statements to Waggoner, Jones, and the nurse. The prosecutor also made reference to defendant's claim that Doe was experiencing "buyer's remorse." "What did Miss Doe have to gain from reporting this? As [defense counsel] brought out in her opening statement and said something about buyer's remorse, I'm assuming she meant, you know, Miss Doe had sex with her brother and then regretted it, or something of that nature. But again, there was no evidence of any of that. You didn't hear a peep about it. So I want you to keep that in mind when you listen to her closing argument. There was no evidence of consent. There was no evidence of, as she said, buyer's remorse. None."
In rebuttal, the prosecutor discussed defendant's arguments as to what Doe's reactions to being raped should have been. She argued, "I analogize that to this situation because when you wake up, Miss Doe did, and someone is ripping at your underwear and is on top of you, who is to say how you are to react in the face of the lion. Easy to stand outside the cage like [defense counsel] did and tell you what you should do, but until you've been there, there is no manual for how one should react specifically to any situation. [¶] She testified that she tried to get him off of her. She testified that she told him no repeatedly. And she told that to every person she came in contact with that day and beyond, and she told you the same thing. And, again, was there any evidence to the contrary? Was there any evidence that it went any other way, other than what Miss Doe testified to, told the detectives, told the Deputy, told the nurse? No. No. Absolutely uncontroverted."
Finally, the prosecutor went on to say, "[Defense counsel] said over and over, she's drunk, she's high; and she had sex with her brother, and now she regrets it. Where is the evidence of that? Oh, that's right. There is none. You didn't hear that from any source. And ladies and gentleman, you are limited to the evidence that was presented in this case."
Analysis
The Fifth Amendment of the United States Constitution and article I, § 13, of the California Constitution establish a defendant's privilege against self-incrimination and right to remain silent in the face of accusations against him. In Griffin, supra, 380 U.S. 609, the United States Supreme Court articulated the principle in play here, that "the Fifth Amendment . . . forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt." (Griffin, at p. 615.) The court reasoned that such would impair the privilege by imposing a penalty for asserting it.
The facts of this case bear little resemblance to those of Griffin. The defendant accused of murder in Griffin chose to remain silent, though he had been seen with the deceased the evening of her death. (Griffin, supra, 380 U.S. at p. 660.) The prosecutor's argument to the jury was essentially a screed centered on the defendant's failure to testify. After an extended litany in which the prosecutor highlighted damaging pieces of evidence, the prosecutor then concluded that in the face of such damning evidence, the defendant " 'has not seen fit to take the stand and deny or explain.' " (Id. at p. 611)
While the Fifth Amendment violation in Griffin was blatant, later cases expanded the scope of the Griffin holding to less brazen conduct, thus that: "Pursuant to Griffin, it is error for a prosecutor to state that certain evidence is uncontradicted or unrefuted when that evidence could not be contradicted or refuted by anyone other than the defendant testifying on his or her own behalf." (People v. Hughes (2002) 27 Cal.4th 287, 371.)
Nonetheless, Griffin does not forbid all comment on defense failures to address evidence of guilt. Griffin " 'does not extend to comments on the state of the evidence or on the failure of the defense to introduce material evidence or call logical witnesses.' " (People v. Hovey (1988) 44 Cal.3d 543, 572.) In reviewing whether a prosecutor's comments constitute Griffin error, we determine "whether there is a reasonable likelihood that the jurors misconstrued or misapplied the words in question." (People v. Roybal (1998) 19 Cal.4th 481, 514.) Again, the rationale for imposing the prohibition in Griffin was that the prosecutor's comments impaired the constitutional privilege against self incrimination by imposing a penalty for asserting it.
Defense counsel did not object to any of the prosecutor's argument or comments. Defendant's timely objection and an admonition from the court would have cured any potential harm caused by the prosecutor's comments. Defendant's failure to object to the alleged Griffin error forfeits his right to challenge the issue on appeal. (People v. Mitcham (1992) 1 Cal.4th 1027, 1050.)
Acknowledging counsel's failure to object in the trial court, defendant alternatively argues that counsel's failure to object was ineffective assistance of counsel. " 'In order to demonstrate ineffective assistance of counsel, a defendant must first show counsel's performance was "deficient" because his [or her] "representation fell below an objective standard of reasonableness . . . under prevailing professional norms." [Citations.] Second, he [or she] must also show prejudice flowing from counsel's performance or lack thereof. [Citation.] Prejudice is shown when there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." ' " (In re Harris (1993) 5 Cal.4th 813, 832-833; accord, Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 693] (Strickland).) The burden of proving a claim of ineffective assistance of counsel is squarely upon the defendant. (People v. Camden (1976) 16 Cal.3d 808, 816.)
An ineffective assistance claim premised on counsel's failure to object to a prosecutor's improper argument presumes that a valid objection could have been made. Here the prosecutor never directly referred to defendant's failure to testify. Rather, the claims of Griffin error all concern the prosecutor's assertion at trial that Doe's testimony regarding a particular matter was uncontroverted and arguments on appeal that only defendant could have provided contrary testimony.
Defendant complains that the prosecutor improperly argued Doe's testimony about the 2009 fight was uncontroverted because only defendant could have offered contrary testimony. But Doe called the sheriff's department and a stay away order issued. Hamilton and Doe's daughter witnessed the events. Doe's testimony could have been contradicted by Hamilton, her daughter, or the contemporaneous sheriff's reports and court documents. Accordingly, there was evidence other than testimony from defendant that could have contradicted Doe's account. The argument did not violate Griffin's prohibition.
With respect to the 2013 charged sexual assault, defendant complains about the prosecutor's rebuttal to his claim that Doe's allegations were the result of "buyer's remorse"—that is that she had been drunk and high and had sex with defendant and later regretted it. The prosecutor asserted there was no evidence of consent, no evidence of buyer's remorse. Defendant insists these assertions violated Griffin's prohibition. Not so.
Defendant was not the only source of information regarding her condition or her credibility. There was no evidence Doe was drunk or high the night of the rape. No one testified she appeared intoxicated that night or the following morning. But Doe admitted she had drunk alcohol and smoked marijuana that evening. That morning, Davis and Waggoner saw her and spoke with her. Doe's blood and urine were tested. She tested negative for alcohol, but positive for marijuana. In addition, Doe's statements and behavior after the rape could also have contradicted her testimony. Doe could have told one of her friends or family that she had sex with her brother and regretted it, but there was no evidence to that effect. She could have made other inconsistent statements to friends or family about what happened that night, suggesting it was a consensual encounter. But evidence of such was lacking. Conflicting evidence could have come from witnesses other than defendant. There was nothing improper about the prosecutor's assertion about the absence of evidence supporting defendant's claim that Doe's accusation stemmed from "buyer's remorse."
Two other statements by the prosecution rest on shakier ground. In reflecting on the alleged bedroom incident in 2000, as well as the 2013 sexual assault, the prosecutor declared there was no evidence to contradict Doe's testimony that defendant's actions were taken without her consent. Certainly, the prosecution's assertion that Doe's testimony regarding consent was uncontradicted, would highlight defendant's silence. As to the 2000 incident, the only witnesses to what happened in the bedroom were defendant and Doe. Defendant is the only person who could have contradicted Doe's account of the specific events in the bedroom.
As to the 2013 sexual assault, the following comment is deemed objectionable: "Two hours later, she wakes up. She says she feels ripping, hears tearing, and the defendant is removing her underwear and gets on top of her; puts his penis in her vagina. Uncontroverted. No evidence to the contrary. He put his penis in her vagina." To the extent that the prosecutor's comments could be read as saying the victim's entire description of what occurred before defendant put his penis in her is uncontroverted, this constitutes Griffin error. To the extent that the prosecutor was saying the fact that defendant put his penis inside of the victim is uncontroverted, that does not constitute Griffin error as such could be contradicted by forensic evidence had such evidence been available.
We will assume for purposes of argument that some or all of the prosecutor's comments constituted Griffin error. Still, we are not persuaded that counsel's failure to object constitutes ineffective assistance, nor are we convinced that it is reasonably probable counsel's successful objection, followed by the instructions to disregard the prosecutor's argument, would have altered the result of the trial.
" 'Unless a defendant establishes the contrary, we shall presume that "counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy." ' [Citations.] When the record on direct appeal sheds no light on why counsel failed to act in the manner challenged, defendant must show that there was ' " 'no conceivable tactical purpose' " for counsel's act or omission. [Citations.]' [Citation.] '[T]he decision facing counsel in the midst of trial over whether to object to comments made by the prosecutor in closing argument is a highly tactical one . . . .' [Citation.], and 'a mere failure to object to evidence or argument seldom establishes counsel's incompetence' [Citation]." (People v. Centeno (2014) 60 Cal.4th 659, 674-675.)
Here, we cannot say defense counsel's failure to object fell below objective standards of reasonableness. Whether the prosecutor's comments constituted Griffin error was a close question. Counsel could have reasonably concluded they did not constitute error. It would also seem self evident in a rape prosecution where the only eyewitnesses are the alleged perpetrator, the defendant, and the victim, that the defendant is best positioned to contradict the victim's account of events. Even if construed in their most harmful light, the prosecutor's comments would have added little to this calculus. Trial counsel could have made the reasonable tactical choice that to object would have unduly emphasized that portion of the prosecution's argument, and brought even greater attention to defendant's silence.
Nor can we find a reasonable probability that but for the failure to object to closing argument, the result of the trial would have been different. The trial court instructed the jury with CALCRIM No. 355, that "A defendant has an absolute constitutional right not to testify. He or she may rely on the state of the evidence and argue that the People have failed to prove the charges beyond a reasonable doubt. Do not consider for any reason at all the fact that the defendant did not testify. Do not discuss that fact during your deliberations or let it influence your decision in any way." This instruction, which addressed firmly and directly the weight the jury could attach to defendant's silence, was of far greater effect than any admonition the court might have given following a successful objection to the prosecutor's argument.
The trial court also instructed the jury under CALCRIM No. 220 that the prosecution bore the burden of proving beyond a reasonable doubt that defendant committed the charged crime. And, the trial court instructed the jury with CALCRIM No. 222, that statements by the prosecutor are not evidence. Had defense counsel objected and the trial court sustained an objection on the basis of Griffin, the trial would have admonished the jury with similar instructions. "[T]his may have had some marginal benefit" to defendant. (See People v. Mesa (2006) 144 Cal.App.4th 1000, 1011). However, based on the evidence of defendant's guilt, the entirety of the prosecutor's closing argument, and the limited nature of the prosecutor's indirect Griffin error, "which did not involve any direct comment on the defendant's failure to testify, let alone (as occurred in Griffin) the actual suggestion the jury could consider the defendant's failure to testify in assessing his guilt," we are not convinced it is reasonably probable the jury would have reached an outcome more favorable to defendant had his counsel objected. (Mesa, at p. 1011.)
II
Defendant next contends the trial court erred in failing to state adequate reasons for imposing a full consecutive sentence under section 667.6, subdivision (c). We are not persuaded any error was prejudicial.
Background
At sentencing, the trial court read and considered the probation report and letters of family and the victim. The probation report reflects defendant had a number of prior convictions including spousal abuse, assault with a deadly weapon against defendant's mother, battery on emergency personnel, resisting an officer, assault with force likely to produce great bodily injury against his eight months' pregnant sister, and battery with bodily injury against Doe. The probation report also listed numerous circumstances in aggravation, including: the crime involved acts disclosing a high degree of cruelty or callousness, as defendant raped his half sister in her bed, while the victim's three-year-old daughter was asleep next to them; defendant took advantage of a position of trust or confidence, as the victim's half brother, to commit the offense; defendant has engaged in violent conduct; and defendant's prior convictions are numerous and of increasing seriousness. In addition, the crimes involved separate acts of violence against the victim. Probation found no circumstances in mitigation.
Doe also spoke to probation and at the sentencing hearing about the impact this offense had on her. She indicated she had previously been attending culinary school and after the assault, her grades suffered, she had to drop a class, and she no longer qualifies for financial aid. She cannot sleep in her room anymore. Her family has turned against her, family members call and harass her, and others, including her father, will not speak to her.
The prosecution specifically "dr[e]w to the Court's attention the definitions" contained in section 667.6, subdivision (c). The prosecutor noted defendant had time to stop and reflect between acts, and had exhibited prior violence to the same victim, as well as other people, including his mother, the mother of two of his children, and a different sister who was pregnant at the time. The prosecutor also noted defendant had shown no remorse for his actions and continued to refuse to accept responsibility.
The defense attorney noted that although the People were requesting three fully consecutive high term sentences of eight years each for an aggregate term of 24 years, the court was not required to impose that sentence. Defense counsel noted "what would normally happen in here, which would be they would run concurrent or a third of the mid consec which you have the ability to do also. [¶] We're asking the Court to sentence him to three years which would be the low term on one count and run the other counts concurrent." Defense counsel went on to state, "We're asking the Court to impose three years. If you do -- if you are considering using that code section to do consecutive sentencing on this, then I would ask you to impose no more than nine which would be low for all three of those counts for a total of nine years."
The court stated: "Just on that point. [¶] You do acknowledge that the Court has discretion whether to impose concurrent or consecutive even if it is just a single occasion?" Defense counsel acknowledged the court had that discretion "[w]e're asking you not to use it, but you do have it."
The trial court noted defendant did not accept responsibility for the crimes and continued to believe the facts were different than the court and jury had found. "This is obviously a very serious crime, done a lot of damage to the victim in this case. The court observed "[c]learly alcohol is part and partial [sic] of it. . . . whether it's alcohol, or some other substance, or some other things, he turns into a fairly violent person who has no respect for other people and that's repeated [sic] demonstrated throughout his record." Having said that, the court also noted defendant had not been to prison, and while that was not a mitigating factor it influenced the court "to give the middle term rather than the upper term. [¶] However, in my discretion, I do find that there is every reason to make those consecutive to one another."
Analysis
" ' "It is well settled that in making sentencing choices pursuant to section 667.6, subdivision (c), sexual assault offenses, the trial court must state a reason for imposing a consecutive sentence and a separate reason for imposing a full consecutive sentence as opposed to one-third the middle term as provided in section 1170.1." [Citation.] . . . [H]owever, the court may "repeat the same reasons." (Cal. Rules of Court, rule 426(b)[, now rule 4.426(b)].)' (People v. Osband (1996) 13 Cal.4th 622, 729.) 'What is required is an identification of the criteria which justify use of the drastically harsher provisions of section 667.6, subdivision (c). The crucial factor, in our view, is that the record reflect recognition on the part of the trial court that it is making a separate and additional choice in sentencing under section 667.6, subdivision (c).' (People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. omitted.) In making this determination, '[t]he sentencing judge is to be guided by the criteria listed in rule 4.425, which incorporates rules 4.421 [(aggravating circumstances)] and 4.423 [(mitigating circumstances)], as well as any other reasonably related criteria as provided in rule 4.408 [(enumerated criteria not exclusive)].' (Cal. Rules of Court, rule 4.426(b).)" (People v. Quintanilla (2009) 170 Cal.App.4th 406, 411.)
The trial court did not state a specific reason for imposing consecutive sentences under section 667.6, subdivision (c), nor did it state a separate reason for imposing a full consecutive sentence, as opposed to one-third the middle term. Although the parties and the court discussed the applicability of section 667.6, subdivision (c), the court did not specifically make clear that in imposing full consecutive sentences, it was making a separate and additional sentencing choice. Defense counsel did not object at the sentencing hearing to the trial court's failure to state the reasons for imposing the full consecutive term. Defendant claims that defense counsel preserved these contentions for appeal by arguing for the trial court to impose concurrent sentences and asking the court not to exercise its discretion to impose full consecutive sentences. "Any further objection would have been futile." We disagree. "Although the court is required to impose sentence in a lawful manner, counsel is charged with understanding, advocating, and clarifying permissible sentencing choices at the hearing. Routine defects in the court's statement of reasons are easily prevented and corrected if called to the court's attention." (People v. Scott (1994) 9 Cal.4th 331, 353.) Requiring a statement of reasons is not the same as arguing for a particular term; that is making a discretionary choice is different than articulating the basis for that choice. Thus, it was defendant's burden to point out to the court at the time of sentencing that the trial court had not stated any reason for imposition of full consecutive terms. The trial court could have corrected the error then. A defendant cannot complain for the first time on appeal about the trial court's failure to properly make or articulate its sentencing choices. (Id. at p. 352.) Accordingly, this contention was forfeited by defendant's failure to raise the issue at the time of sentencing.
In anticipation of this result, defendant also contends counsel was ineffective for failing to object to the inadequate statement of reasons. To establish ineffective assistance of counsel, a defendant must show (1) counsel's performance was below an objective standard of reasonableness under prevailing professional norms, and (2) the deficient performance prejudiced defendant. (Strickland, supra, 466 U.S at pp. 688, 691-692; People v. Ledesma (1987) 43 Cal.3d 171, 216-217.)
Prejudice is shown when there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland, supra, 466 U.S at p. 694.)
Here, the court referred to defendant's ongoing violence against numerous people and the damage to the victim as reasons for imposing consecutive sentences. It did not give separate reasons for its decision to impose a full consecutive sentence. We cannot find that but for counsel's failure to object to a statement of reasons for imposing the full consecutive sentence, there is a reasonable probability defendant would have received a lesser sentence. The trial court expressly noted it had considered the probation report and found there was "every reason" to impose consecutive sentences. The probation report contains ample support for the trial court's imposition of full consecutive sentences. Defendant had a record of increasing violence, including prior violence against the same victim. Committing the offense against Doe while her three-year-old daughter was asleep in the bed next to them made the offenses especially callous. Defendant's status as the victim's half brother provided him with a position of trust. Based on that position of trust, Doe allowed defendant to stay in her home, and gave defendant access to Doe and her home that he would not otherwise have had, which in turn put him in a position to commit the offense. Any of these aggravating circumstances contained in the California Rules of Court support the imposition of a full consecutive sentence, while imposing a consecutive sentence for the separate reason of defendant's increasing violence and the harm to the victim. "We discern no reasonable probability that it would not have chosen to do so. Resentencing is not required." (People v. Osband (1996) 13 Cal.4th 622, 729.)
III
Defendant contends, and the People properly concede, that the minute order must be corrected to reflect the sentence orally imposed. We accept the concession and order the trial court to correct the minute order.
The oral pronouncement of judgment reflects the court imposed a sentence of six years on count two for violating section 261. The minute order lists count two as a violation of section 260 (A)(2) and reflects imposition of an eight-year term. As a general rule, when the record of the court's oral pronouncement of judgment regarding sentencing conflicts with the clerk's minute order, the oral pronouncement controls. (People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2; People v. Mesa (1975) 14 Cal.3d 466, 471 [rendition of judgment is an oral pronouncement; where discrepancy exists between oral judgment and that entered in the minutes, clerical error in minutes is presumed].) Here, the minute order improperly reflects the offense defendant was convicted of and the sentence the trial court imposed. Accordingly, we will order the trial court to correct the minute order to accurately reflect the judgment imposed.
DISPOSITION
The judgment is affirmed. The trial court is ordered to correct the minute order to reflect the judgment imposed.
RAYE, P. J. We concur: MURRAY, J. HOCH, J.