Opinion
D069780
05-16-2017
THE PEOPLE, Plaintiff and Respondent, v. TED AMPARAN, Defendant and Appellant.
Nancy J. King, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Alan L. Amann, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD241069) APPEAL from a judgment of the Superior Court of San Diego County, Melinda J. Lasater, Judge. Affirmed as modified. Nancy J. King, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Alan L. Amann, Deputy Attorneys General, for Plaintiff and Respondent.
Ted Amparan, a Marine stationed at Camp Pendleton, sexually assaulted six different women over a number of years. A jury found him guilty of two counts each of forcible rape (Pen. Code, § 261, subd. (a)(2); counts 1, 8) and assault with intent to commit a specific felony (§ 220, subd. (a)(1); counts 4, 7), three counts of forcible sexual penetration (§ 289, subd. (a); counts 2, 3, 5) and kidnapping to commit a specific felony (§ 209, subd. (b)(1); count 6). In relation to count 3, the jury found that Amparan had used a deadly weapon in the commission of the offense (§ 12022.3, subd (a); § 667.61, subds. (b), (c), (e)). In relation to counts 1, 2, 3, 5, and 8, the jury found Amparan committed an offense enumerated in section 667.61, subdivision (c), against more than one victim (§ 667.61, subds. (b), (c), (e)). The trial court sentenced Amparan to an aggregated indeterminate term of 75 years to life in prison, plus life, plus a total determinate term of 15 years in prison.
Undesignated statutory references are to the Penal Code.
Amparan appeals, contending the evidence does not support count 5, one of his convictions for forcible sexual penetration. He also asserts the trial court erred in sentencing on (1) counts 6 and 7 because section 654 applied, and (2) counts 1 and 2 by erroneously applying section 667.6, subdivision (c). We modify the sentence to stay Amparan's prison term on count 7, but otherwise affirm the judgment.
GENERAL FACTUAL BACKGROUND
Because the parties are familiar with the facts, we summarize only the general facts concerning the underlying crimes. We present additional facts concerning the issues on appeal in our discussion below.
Laura (counts 1 and 2)
One day in March 2007, Amparan picked up Laura, a prostitute working a high-prostitution section of El Cajon Boulevard in San Diego known as the "blade." Amparan drove her to a secluded parking lot near the I-8 and I-805 freeway overpass, where he parked and negotiated sexual intercourse for $100. Amparan, while wielding a knife, told Laura he "was going to fuck [her], and [she] was going to like it." He forced her legs apart, penetrated her vagina with his fingers, and raped her. Laura got out of Amparan's car, put her clothes on, and left.
Amber (count 3)
On an evening in September 2010, Amber, a prostitute working on El Cajon Boulevard got into Amparan's car. They agreed to have sexual intercourse for $150. Amparan drove Amber to a parking lot near the freeway overpass at the intersection of I-8 and I-805. Amparan threw Amber to the ground, choked her and hit her head saying, "Bitch, you're going to get raped." He forced Amber's pants down and put his fingers inside her vagina. He also unzipped his pants, exposing his penis, and tried unsuccessfully to force sexual intercourse on her. After finishing the assault, Amparan pulled out a knife and told her to leave.
Gabriela (count 5)
On a day in September 2010, Gabriela was waiting at a bus stop on El Cajon Boulevard, seeking a way to get to downtown. Amparan offered Gabriela a ride, which she accepted. Instead, Amparan took her to parking lot and assaulted her. When Gabriela tried to call 911, Amparan got up and fled in his car.
Starlina (count 4)
On an afternoon in September 2010, Amparan approached Starlina, a prostitute working on El Cajon Boulevard, in his car. She agreed to have sexual intercourse with Amparan for $60 and got in his car. Amparan took her to a parking lot and tried to engage in anal intercourse, but Starlina refused. After Amparan put his hand around her neck, Starlina kneed him and ran to a nearby restaurant where she telephoned her pimp.
Alicia (counts 6 and 7)
On an evening in September 2010, Alicia left a friend's house near El Cajon Boulevard when Amparan approached her in his car, asking if she needed assistance. When Alicia got in Amparan's car, he took her to a dark parking lot in the area of a freeway overpass. After parking and nervously smoking a cigarette, Amparan grabbed Alicia and pulled her behind a dumpster. He then forced her to the ground, got on top of her, yelling "Spread them legs, girl. Spread them legs." Alicia escaped and telephoned a friend and the police.
Sarah (count 8)
On a day in September in 2011, Sarah, a prostitute working on El Cajon Boulevard got in Amparan's car. They agreed to have sexual intercourse for $100. Amparan drove to a secluded parking lot and parked. Amparan grabbed Sarah's neck, hit her head against the window and forcibly raped her, saying, "Oops, sorry. No money, babe." Amparan then opened the door and threw her out of the car.
DISCUSSION
I. SUFFICIENCY OF EVIDENCE FOR COUNT 5
A. Additional Background
The jury found Amparan guilty of one count of sexual penetration by force against Gabriela. At trial, Gabriela testified that after Amparan tossed her to the ground he tried to pull her pants down, but was not able to access her private parts. She later clarified this statement meant that Amparan had not penetrated her vagina with his penis. Gabriela could not remember telling police that Amparan had put his finger in her vagina. She could not remember if Amparan put his finger in her "rear end." During cross-examination, Gabriela stated Amparan was able to pull her pants down to her thighs, but could not remember if he had digitally penetrated her anus. Gabriela, however, remembered speaking to the officers after the incident and telling them that Amparan had penetrated her anus. Gabriela admitted that she was very nervous coming into court to testify, a "10" on a scale of one to 10.
In rendering its decision, the jury also listened to a recording of the 911 telephone call Gabriela placed immediately after the incident in which she reported that Amparan had "stuck his finger in [her] ass and . . . tried to rape [her]." The jury heard testimony from San Diego Police Officer Wendy Valetin, who interviewed Gabriela immediately after the incident. Officer Valetin testified, without objection, that Gabriela told her that Amparan had thrown her to the ground and digitally penetrated her vagina twice and her anus five times. Officer Valetin testified that, in a later police interview, Gabriela told her that Amparan had digitally penetrated her vagina and anus.
C. Analysis
Amparan claims the evidence did not support his conviction on count 5 for forcible sexual penetration of Gabriela because no reasonable juror could have concluded beyond a reasonable doubt that he had penetrated Gabriela with a foreign object. In making this argument, he asserts that Gabriela's statements to the 911 operator do not constitute substantial evidence and her statements to police were not admissible because her failure to remember the event did not qualify as an inconsistent prior statement as her lack of memory was not feigned or evasive.
Where a defendant challenges the sufficiency of the evidence supporting a conviction, our task is to review the whole record in the light most favorable to the judgment to determine whether it contains substantial evidence from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. (People v. Jennings (1991) 53 Cal.3d 334, 364.) It is not our function to reweigh the evidence (People v. Ochoa (1993) 6 Cal.4th 1199, 1206) and reversal is not warranted merely because the circumstances might also be reasonably reconciled with a contrary finding. (People v. Thomas (1992) 2 Cal.4th 489, 514.)
At trial, Amparan did not raise a hearsay objection to the admission of the 911 recording of Gabriela's telephone call to police, or her statements to Officer Valetin immediately after the incident and during a later interview. His failure to object forfeited the issue on appeal. (People v. Williams (2008) 43 Cal.4th 584, 620; see also Evid. Code, § 353.) Nonetheless, we address the merits of his arguments to avoid a habeas corpus petition for ineffective assistance of counsel.
Although not addressed by the parties, we note that Gabriela's 911 call was not testimonial, in that its primary purpose was to deal with an emergency, rather than produce evidence about past events for possible use in a criminal trial. (People v. Cage (2007) 40 Cal.4th 965, 984; People v. Gann (2011) 193 Cal.App.4th 994, 1008; People v. Brenn (2007) 152 Cal.App.4th 166, 176-177 [victim's statements in a 911 call were made during an ongoing emergency and nontestimonial, even though victim had left scene of assault and made call from a neighbor's house].) Therefore, its admission did not violate Crawford v. Washington (2004) 541 U.S. 36. Even if an out-of-court statement is not testimonial under Crawford, the statement still must be admissible under applicable state evidentiary rules, including hearsay rules. (People v. Banos (2009) 178 Cal.App.4th 483, 494, fn. 3.)
Inadmissible hearsay evidence is "evidence of a statement that was made other than by a witness while testifying at the hearing . . . that is offered to prove the truth of the matter stated." (Evid. Code, § 1200.) Excited utterances or spontaneous declarations are an exception to the hearsay rule. (Evid. Code, § 1240.) Several requirements must be met for the excited utterance exception to apply to hearsay evidence. (People v. Gutierrez (2000) 78 Cal.App.4th 170, 177.) First, there must have been an occurrence startling enough to produce nervous excitement and unreflecting statements. (Ibid.) Second, the statements must have been made before there was time to contrive and misrepresent. (Ibid.) Finally, the statements must have related to the circumstances of the occurrence that preceded them. (Ibid.) The trial court's determination of the preliminary facts, such as whether the declarant was under the stress of excitement when the statements were made, will be upheld if supported by substantial evidence. (People v. Phillips (2000) 22 Cal.4th 226, 235-236; People v. Brown (2003) 31 Cal.4th 518, 540-541.) The court's ultimate decision to admit the evidence is reviewed for an abuse of discretion. (Phillips, at p. 236.)
Here, Gabriela lost her telephone during the attack. When she found her telephone, she called 911, which caused Amparan to leave. Gabriela made her statements immediately after the attack, while still under the stress of the situation and without the opportunity to reflect or contrive. Accordingly, the trial court did not abuse its discretion in admitting the 911 call under Evidence Code section 1240.
Additionally, the trial court properly admitted Gabriela's statements to Officer Valetin under the exception to the hearsay rule for prior inconsistent statements. (Evid. Code, § 1235.) Evidence Code sections 770 and 1235 provide an exception to the general rule against hearsay evidence where a witness's prior statement is inconsistent with the witness's testimony in the present hearing, provided the witness is given the opportunity to explain or deny the statement. (Evid. Code, § 770, subd. (a).)
Evidence Code section 770 provides: "Unless the interests of justice otherwise require, extrinsic evidence of a statement made by a witness that is inconsistent with any part of his testimony at the hearing shall be excluded unless: [¶] (a) The witness was so examined while testifying as to give him an opportunity to explain or to deny the statement; or [¶] (b) The witness has not been excused from giving further testimony in the action."
Evidence Code section 1235 provides: "Evidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing and is offered in compliance with [Evidence Code] Section 770."
When a witness does not recall or remember an event, there is no "inconsistency" within the meaning of Evidence Code section 1235. (People v. Sam (1969) 71 Cal.2d 194, 210; People v. Price (1991) 1 Cal.4th 324, 413-414 [substantial evidence supported determination that witness was truthful when he testified he could not remember many facts about his relationship with the victim as the lack of memory was neither total nor suspiciously selective].) But, " '[w]hen a witness's claim of lack of memory amounts to deliberate evasion, inconsistency is implied.' " (People v. Ledesma (2006) 39 Cal.4th 641, 711.) A trial court is not required to expressly find inconsistency or evasiveness before overruling a hearsay objection; on appeal we will infer from the ruling that the trial court made the necessary implied factual findings. (Id. at p. 710.)
The record demonstrates that a reasonable basis existed for the trial court to conclude that Gabriela's claimed lack of memory at trial amounted to a deliberate evasion, thus giving rise to an inconsistency. First, although the trial took place over four years after the incident, Gabriela had no trouble recalling that before Amparan approached her, she was at El Cajon Boulevard and 35th Street, near the Church's Chicken, waiting for a bus to take her downtown. She recalled that Amparan drove a new burgundy colored Altima that had a paper saying "Mossy Nissan" on it instead of a license plate. Given Gabriela's recall of these details it is inherently dubious she could not recall whether Amparan had digitally penetrated or vagina or anus. Whether we would have concluded differently is irrelevant. There is reasonable basis in the record for the trial court to have concluded that Gabriela was being evasive in claiming she could not remember if Amparan had digitally penetrated her vagina or anus. Thus, the trial court did not abuse its discretion in allowing Officer Valetin's testimony about Gabriela's statements under the exception to the hearsay rule for prior inconsistent statements.
Finally, even assuming, without deciding, that the 911 recording and Gabriela's statements to police constituted inadmissible hearsay, " ' "[i]t is settled law that incompetent testimony, such as hearsay [], if received without objection takes on the attributes of competent proof when considered upon the question of sufficiency of the evidence to support a finding." ' " (People v. Panah (2005) 35 Cal.4th 395, 476; cf. McDaniel v. Brown (2010) 558 U.S. 120, 131 [" 'a reviewing court must consider all of the evidence admitted by the trial court,' regardless whether that evidence was admitted erroneously" when considering an insufficiency of the evidence claim].)
II. SENTENCE ON COUNTS 6 AND 7
A. Additional Background
Alicia got into Amparan's car believing he would drive her to the Burlington Coat Factory where her friends were waiting for her. Amparan took her to a dark parking lot where he parked, got out of the car and smoked a cigarette. When Alicia realized she was not at the Burlington Coat Factory, she started to get scared.
Alicia does not remember if she got out of the car, or whether Amparan pulled her out of the car. Nonetheless, she recalled Amparan grabbing her and pulling her behind a dumpster. Amparan then forced her to the ground, got on top of her yelling "Spread them legs, girl. Spread them legs." Alica, however, was able to escape.
For these acts, the jury found Amparan guilty of kidnapping to commit a specific felony (count 6) and assault with intent to commit a specific felony (count 7). The trial court sentenced Amparan to life on count 6 and a consecutive term of six years on count 7.
B. Analysis
Relying on People v. Latimer (1993) 5 Cal.4th 1203 (Latimer), Amparan claims the trial court violated section 654 when it sentenced him on both offenses committed against Alicia: life imprisonment on count 6 (kidnapping with intent to commit forcible rape or forcible sexual penetration) and six years on count 7 (assault with intent to commit forcible rape or forcible sexual penetration). The People concede that although Amparan's commission of the kidnapping and assault were directed to an overarching objective to commit forcible rape or forcible sexual penetration, they were nonetheless discrete and divisible in time, as Amparan had completed the kidnapping before committing the assault and should be subject to multiple punishment. We agree with Amparan.
Section 654 prohibits multiple punishments for an indivisible course of conduct that has a common intent and objective, even though the conduct in question violates more than one statute. (Latimer, supra, 5 Cal.4th at pp. 1207-1208.) Whether a course of conduct is indivisible for purposes of section 654 depends on the intent and objective of the defendant. (People v. Beamon (1973) 8 Cal.3d 625, 639.) The statute does not apply if a defendant had "separate, although sometimes simultaneous, objectives . . . ." (Latimer, at p. 1212.) Where a defendant "entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct." (Beamon, at p. 639.) The intent-and-objective test must not define intent too broadly because that would improperly " 'reward the defendant who has the greater criminal ambition with a lesser punishment.' " (People v. Harrison (1989) 48 Cal.3d 321, 335-336.) A defendant's intent and objective are factual questions for the trial court (People v. Coleman (1989) 48 Cal.3d 112, 162) and its determination will be upheld if supported by substantial evidence. (People v. Osband (1996) 13 Cal.4th 622, 730.) This deferential standard of review applies whether the trial court's findings are explicit or implicit. (People v. McCoy (1992) 9 Cal.App.4th 1578, 1585.)
Here, the prosecutor argued that the kidnapping occurred when Amparan took Alicia to a parking lot instead of her desired destination. Alternatively, she argued that the kidnapping occurred when Amparan grabbed Alicia and moved her behind the dumpster. Defense counsel argued to the jury that it needed to decide whether Amparan's act of taking Alicia to other than her desired destination constituted kidnapping. The jury necessarily found that the facts supported one of these theories by convicting Amparan of kidnapping with the intent to commit forcible rape or forcible sexual penetration.
Kidnapping is a continuing offense (Parnell v. Superior Court of Alameda County (1981) 119 Cal.App.3d 392, 407-408); see Wright v. Superior Court (1997) 15 Cal.4th 521, 537 [citing Parnell with approval]) that inherently involves a continuous course of conduct. (People v. Ordonez (1991) 226 Cal.App.3d 1207, 1231.) As long as Amparan continued to detain Alicia, her kidnapping continued. Under either theory of kidnapping to commit rape argued by counsel, the record does not contain evidence showing that in kidnapping Alicia, Amparan had any other criminal ambitions besides sexually assaulting her. Amparan's kidnapping and assault constituted a continuous course of conduct with the single goal of sexually assaulting Alicia. Where, as here, all the crimes committed are incidental to, or were the means of facilitating one objective, a defendant can be punished only once. (Latimer, supra, 5 Cal.4th at p. 1208.) Under the People's analysis, any time a defendant commits a kidnapping for the purpose of committing a rape or sexual penetration, separate punishments would be permitted if the rape occurred after the defendant had some time to reflect on what he was about to do. This reasoning contravenes the holding of Latimer—where all the crimes committed are incidental to, or were the means of facilitating one objective, a defendant can be punished only once. (Ibid.)
This case is akin to Latimer where the defendant, while running errands with the victim, drove the victim to the desert, attacked and then raped the victim and forced her to orally copulate him. (Latimer, supra, 5 Cal.4th at p. 1206.) After the two dressed, defendant then drove another 50 to 75 yards further into the desert where he raped the victim again. (Ibid.) While the rapes and the kidnapping were clearly separate acts, the court held the only intent and objective of the kidnapping was for defendant to facilitate the rapes. (Id. at p. 1216.) In applying section 654, the court found that because defendant had been punished for both of the rapes, and the intent and objective of the kidnapping was to facilitate the rapes, defendant could not be separately punished for the kidnapping. (Id. at pp. 1216-1217.)
The People rely on People v. Bradley (1993) 15 Cal.App.4th 1144, disapproved on another ground in People v. Rayford (1994) 9 Cal.4th 1, 21. In Bradley, the defendant and his companion grabbed the victim as she used a pay phone. (Id. at pp. 11491150.) They forced the victim to walk 50 to 60 feet around the side of a building to a dumpster area enclosed by walls six and a half feet high. (Id. at p. 1150.) At the dumpster site, the defendant sexually molested the victim until the victim kicked the defendant in the shins and fled. (Ibid.) Defendant was convicted of kidnapping with intent to commit rape, assault with intent to commit rape and sexual battery. (Id. at p. 1149.) The Bradley court applied section 654 only to the sexual battery conviction. (Bradley, at pp. 11561157.) The court viewed the defendant's objective in moving the victim as separate from his later objective in assaulting her and punished him for each of these convictions. (Id. at p. 1158.) The Latimer court did not overrule, or even address Bradley. (See Latimer, supra, 5 Cal.4th 1203.) To the extent the Bradley holding conflicts with Latimer, the Supreme Court's decision is controlling. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Accordingly, we order the trial court to stay execution of Amparan's six-year sentence on count 7 (assault with intent to commit forcible rape or forcible sexual penetration), under section 654. (People v. Galvan (1986) 187 Cal.App.3d 1205, 1219 ["The proper remedy for failing to apply section 654 is to stay the execution of the sentence imposed for the lesser offense . . . ."].)
III. SENTENCE ON COUNTS 1 AND 2
A. Additional Background
Amparan penetrated Laura's vagina with his fingers, and raped her. For these actions, the jury found him guilty of forcible rape (count 1) and forcible sexual penetration (count 2). At sentencing, the trial court imposed consecutive 15-year-to-life sentences on counts 1 and 2 under section 667.6, subdivision (d) (section 667.6(d)). After sentencing Amparan, the trial court asked the People if there was anything further. The following dialogue took place:
"[PROSECUTOR]: Yes, your Honor. If you could state on the record your reasoning for the consecutive and current sentence [] under the (c) section.
"THE COURT: Currently?
"[PROSECUTOR]: You can do it -- it's consecutive, but you can do it under both (d) and (c).
"THE COURT: I thought I said (d).
"[PROSECUTOR]: You said (d), but I'm asking you to also say (c).
"THE COURT: (c) is also applicable. You know, I could do it under both. So to make sure that it's clear, I will do it under both, but I believe it's—I think [] (d) is controlling, but I can see where you could say that on review it might not be viewed as two separate acts. I will do that."
The trial court then recessed after both the probation officer and defense counsel indicated they had nothing further.
B. Analysis
Amparan contends the trial court erred in imposing consecutive sentences on counts 1 and 2 (forcible rape and forcible sexual penetration, respectively). He claims Laura's testimony failed to show that there were two fully separate acts with an opportunity to reflect. Accordingly, he argues the trial court erred in finding that the crimes occurred on "separate occasions" under section 667.6(d). He also asserts the trial court erred in relying on section 667.6, subdivision (c) (section 667.6(c)) because it did not provide a statement of reasons for sentencing under this section.
The People assert Amparan forfeited any error under section 667.6(c) by failing to object at trial to the allegedly deficient statement of reasons. Thus, even assuming Amparan did not commit the offenses underlying counts 1 and 2 on separate occasions as required for consecutive sentencing under section 667.6(d), the trial court's valid imposition of such sentences under section 667.6(c), cured the error and foreclosed any claim of sentencing error under section 667.6.
Under certain aggravating circumstances, the One Strike Law (§ 667.61) requires courts to impose longer sentences on defendants who commit violent sex crimes like rape (§ 261; count 1) and sexual penetration by object (§ 289, subd. (a)(1)(A); count 2). (§ 667.61, subd. (c).) Section 667.6 sets forth sentencing rules for defendants with multiple convictions for certain sex offenses as set forth in subdivision (e) of that section. These offenses include those charged in counts 1 (rape) and 2 (rape by a foreign object). (§ 667.6, subds. (e)(1) & (e)(8).)
Section 667.6(d) mandates full, separate, and consecutive sentencing for certain enumerated sex offenses "involv[ing] separate victims or . . . the same victim on separate occasions." (§ 667.6(d).) Section 667.6(d) sets forth the factors to be considered in determining whether the crimes were committed on separate occasions, the principal one of which is whether "the defendant had a reasonable opportunity to reflect upon his or her actions and nevertheless resumed sexually assaultive behavior." (§ 667.6(d).) A finding that the crimes occurred on separate occasions does not require a break of any specific duration, a change in physical location, or an obvious break in the defendant's behavior. (People v. Jones (2001) 25 Cal.4th 98, 104; People v. King (2010) 183 Cal.App.4th 1281, 1325.) We may reverse a finding that the defendant committed offenses on separate occasions under section 667.6(d) "only if no reasonable trier of fact could have decided the defendant had a reasonable opportunity for reflection after completing an offense before resuming his assaultive behavior." (People v. Garza (2003) 107 Cal.App.4th 1081, 1092.)
Here, when Amparan picked up Laura, he wore a white T-shirt and pants. Laura got in the backseat to undress and was close to fully naked when Amparan got in the backseat with her holding a knife. Laura could not remember if Amparan was undressed. Laura remembered that Amparan held her throat, kissed her chest, pulled her thighs open, put his fingers inside her vagina and then put his penis inside her. Laura did not know how long the sexual intercourse lasted, or whether Amparan ejaculated. Neither counsel elicited any facts suggesting Amparan had a reasonable opportunity for reflection after completing the digital penetration. This scant record is insufficient to support the trial court's finding that the digital penetration and rape occurred on separate occasions.
Recognizing that "on review" this court "might not [view the offenses] as two separate acts," the trial court also sentenced Amparan under section 667.6(c). In situations where a full consecutive term is not mandated by section 667.6(d) because the crimes occurred on the same occasion, a trial court has the discretion to impose a full consecutive term "if the crimes involve the same victim on the same occasion." (§ 667.6(c).) Sentencing under section 667.6(c) "is an additional sentence choice which requires a statement of reasons separate from those justifying the decision merely to sentence consecutively." (People v. Belmontes (1983) 34 Cal.3d 335, 347.) In exercising its discretion to impose a full consecutive term under section 667.6(c), "the court ideally should explain choosing consecutive rather than concurrent and full rather than subordinate, though the same reason may justify both choices. At a minimum the record must reflect a recognition that two sentence choices are involved." (People v. Senior (1992) 3 Cal.App.4th 765, 781.)
As Amparan notes, when exercising its discretion to sentence under section 667.6(c), the trial court failed to provide a statement of reasons. Amparan, however, forfeited the issue by failing to object below. (People v. Scott (2015) 61 Cal.4th 363, 406 [holding forfeited defendant's claim that the trial court erred by failing to state its reasons for imposing full consecutive terms under section 667.6(c)].) Amparan does not make an alternative claim of ineffective assistance of counsel based on his counsel's failure to object when the trial court did not provide a statement of reasons. Even if he had made this claim, we would reject it as there is not a reasonable probability the outcome of the proceedings would have been different had an objection been made. (See Strickland v. Washington (1984) 466 U.S. 668, 694.) The record reflects the trial court's understanding that it had the discretion to sentence Amparan under section 667.6(c). There is no reason to believe that the court would have reached a different conclusion had it been asked to state the reasons for making the sentences on counts 1 and 2 consecutive. Accordingly, any ineffective assistance of counsel claim fails as Amparan has not met his burden of showing prejudice. (People v. Porter (1987) 194 Cal.App.3d 34, 39 ["it would be idle to remand to the trial court for a new statement of reasons, as it is not reasonably probable that a result more favorable to appellant would occur"].)
DISPOSITION
We affirm the convictions but modify the judgment as follows: The six-year term imposed on count 7 is ordered stayed pursuant to section 654. The trial court is directed to prepare an amended abstract of judgment consistent with this opinion and forward it to the Department of Corrections and Rehabilitation, Division of Adult Operations.
NARES, J. WE CONCUR: BENKE Acting, P. J. HALLER, J.