People v. Gomez

Full title: THE PEOPLE, Plaintiff and Respondent, v. LEONARDO DANIEL GOMEZ, Defendant…

Court: COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

Date published: Apr 21, 2017

D069537 (Cal. Ct. App. Apr. 21, 2017)

Opinion

D069537

04-21-2017

THE PEOPLE, Plaintiff and Respondent, v. LEONARDO DANIEL GOMEZ, Defendant and Appellant.

Cynthia Ann Grimm, 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, Eric A. Swenson and Allison V. Hawley, Deputy Attorneys General, for Plaintiff and Respondent.

BENKE, J.

ORDER MODIFYING OPINION AND DENYING REHEARING NO CHANGE IN JUDGMENT THE COURT:

The petition for rehearing filed on April 28, 2017, by appellant Leonardo Daniel Gomez is denied. It is ordered that the opinion filed herein on April 21, 2017, be modified as follows:

1. On page 5, the first sentence of the first paragraph, the word "boyfriend's" is changed to "neighbor's" so that the sentence reads:

"After Gomez left, B.R. used her neighbor's computer to call her mother and asked her to call the police."

2. On page 5, the third sentence of the last paragraph, the words "red or" are to be inserted before the word "dark" so that the sentence reads:

"Video from a nearby surveillance camera showed a person parking T.H.'s car, getting out carrying a red or dark bag, and walking away from the car."

3. On page 7, the first and second full sentences of the first paragraph are deleted and replaced with the following sentences:

"They also found T.H.'s keys and jewelry. Inside the bedroom of Gomez's girlfriend, officers found one of T.H.'s laptop computers, a black backpack containing a cloth-like purse, and T.H.'s emergency contact list."

4. On page 10, the last full sentence of the last paragraph and the sentence that begins on page 10 and ends on page 11 are deleted and replaced with the following sentences:

"In his bedroom, officers found T.H.'s keys and jewelry. In his girlfriend's bedroom, officers found one of T.H.'s laptop computers, a black backpack containing a cloth-like purse, and T.H.'s emergency contact list."

There is no change in the judgment.

McCONNELL, P. J. Copies to: All parties

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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. SCD259232) APPEAL from a judgment of the Superior Court of San Diego County, Eugenia Eyherabide, Judge. Affirmed. Cynthia Ann Grimm, 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, Eric A. Swenson and Allison V. Hawley, Deputy Attorneys General, for Plaintiff and Respondent.

Leonardo Daniel Gomez appeals a judgment following his conviction of two counts of forcible rape (Pen. Code, § 261, subd. (a)(2) ¹), one count of forcible sodomy (§ 286, subd. (c)(2)(A), one count of making a criminal threat (§ 422), two counts of first degree burglary (§§ 459, 460), and one count of first degree robbery (§§ 211, 212.5, subd. (a)). The trial court sentenced him to an aggregate indeterminate term of 75 years to life in prison for his three sexual offenses and an additional determinate term of six years four months in prison for his robbery conviction and related weapon enhancement and one of his first degree burglary convictions.

1 All statutory references are to the Penal Code unless otherwise specified.

On appeal, Gomez contends: (1) there is insufficient evidence to support one of his first degree burglary convictions (i.e., count 7); (2) the trial court abused its discretion by denying his motion to sever the trial of count 7 from the trial of the other counts that involved a different victim; (3) the court erred by admitting surveillance videos without a proper foundation and in violation of Evidence Code section 352; (4) he was denied effective assistance of counsel when his counsel did not object to DNA evidence and a victim's testimony about his state of mind; (5) the court erred by sentencing him to consecutive terms on counts 1, 2, and 3 pursuant to section 667.61, subdivision (i), and section 667.6, subdivisions (c) and (d); (6) his sentence constitutes cruel and/or unusual punishment in violation of the United States and California Constitutions; (7) the court abused its discretion by imposing a consecutive term for his robbery conviction; (8) the court erred by imposing a one-year sentence enhancement for his weapon use related to his robbery conviction; and (9) the cumulative prejudicial effect of all the errors requires reversal of the judgment. For the reasons discussed below, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Counts 1 through 6. On October 11, 2014, B.R. lived with her boyfriend in an apartment in the 2400 block of B Street in San Diego. At about 2:00 a.m., while her boyfriend was at work, she awoke and saw Gomez in the kitchen. He walked into her bedroom, placed his hand over her mouth, and held a five-inch serrated knife to her throat with pressure sufficient to make it difficult for her to breathe. He initially demanded money, but B.R. told him she did not have any. He pushed her onto the bed and told her to take her pants off. Scared and crying, she repeatedly refused to do so, but ultimately complied as he stood nearby with the knife. He lunged on top of her and held the knife to her throat again. He asked her name and her greatest fear. He told her he was going to use a condom and took it out of his pocket.

Gomez pulled down his pants and underwear, put on a condom, and inserted his penis into B.R.'s vagina. She noticed his pubic and leg hair appeared to have been shaved. As she tried to pull herself away from him, he rubbed his face against her cheek, licked her left ear, and told her to moan. When he told her to take off her shirt, she did. He then told her he "wanted to try something different." He removed his penis from her vagina. While he stood next to her holding the knife, he told her to stand up. She complied and stood up. He touched her breasts with his hands and mouth. He then told her to turn around and bend over the bed. She complied and bent over the bed.

After B.R. bent over the bed, Gomez inserted his penis into her anus. She stood up immediately, turned around, and, facing him, sternly stated: "You asked me what I am afraid of, and I have never done that and I don't want to, please don't do that to me." He replied, "okay," and told her to bend over the bed again. She turned around and bent over the bed. He inserted his penis into her vagina. She noticed the condom wrapper he had left on the bed and slid it under the covers.

While Gomez's penis was inside of B.R.'s vagina, he asked her to get her phone and unlock it. He twisted her around, she grabbed it, and then he twisted her back onto the bed. With her phone near her chest, she unlocked it and dialed 911. When the emergency operator answered, she whispered, "Help me," and then hung up. Gomez asked her whether she had called the police and told her to unlock her phone. She acted like she did not know how to unlock it. With the knife in one hand, he grabbed the phone from her using his other hand. He heard the phone ring and showed her the caller's number, which she did not recognize.² He then told her he was just going to finish. When he told her to beg him to come, she complied and he ejaculated. He then withdrew his penis and pulled up his pants. When he asked whether she had called the police, she denied doing so. He told her, "Unfortunately you saw my face but you are never gonna see me again." He left her apartment, taking her phone with him.

2 About 30 seconds after B.R.'s 911 call, the emergency operator called her number back, but no one answered the phone.

After Gomez left, B.R. used her boyfriend's computer to call her mother and asked her to call the police. Her mother had difficulty doing so and called B.R.'s boyfriend instead. He was on his way home from work and called the police.

Police officers were already on their way to B.R.'s apartment in response to her 911 call. They noticed the screen to the right of B.R.'s front door had been cut or torn. Video from a nearby surveillance camera showed a person running toward the back gate. Officers located B.R.'s phone about one block away.

Count 7. On October 15, 2014, T.H. lived alone in an apartment in the 2200 block of B Street in San Diego. Her apartment was connected to her boyfriend's apartment through a common hallway. After midnight on October 15, she locked her front door, shut (but left unlocked) the interior door leading to the common hallway, and went to her boyfriend's apartment to sleep. At 9:00 a.m., she returned through the common hallway, but found her interior door was locked. Using her boyfriend's key, she entered her apartment and saw a window screen was missing from one of her windows. She also found a number of her personal items were missing, including two laptop computers, a red messenger bag, her wallet that contained credit cards, jewelry, her car keys, and her car.

Police found T.H.'s car a couple of blocks away. Its driver's seat was positioned very close to the steering wheel. Video from a nearby surveillance camera showed a person parking T.H.'s car, getting out carrying a dark bag, and walking away from the car. The person was wearing a dark sweatshirt with its hood covering his or her face. Later that morning, one of T.H.'s stolen credit cards was used to complete a purchase at 10:53 a.m. at a Starbucks shop and was declined twice at 11:04 a.m. and once at 11:18 a.m. at a Subway restaurant. Videos from surveillance cameras at the Starbucks shop and Subway restaurant showed a person wearing a dark sweatshirt with a distinctive design using the stolen credit card.

Investigation. Shortly after the attack, B.R. was examined by Keri Sandy, a forensic nurse with Independent Forensic Services. B.R. told Sandy that her attacker had, inter alia, put his tongue in her left ear. Sandy took sample swabs from B.R.'s left ear, breasts, and genital area. A swab taken from her left ear later confirmed Gomez was a DNA contributor.

On October 16, police detectives showed B.R. a photographic lineup that included Gomez's photograph. When she saw Gomez's photograph, she became very distressed and pale and identified him as her attacker. She put her hand to her mouth and began crying. In explaining why she felt Gomez was her attacker, B.R. stated she recognized his ears, mouth, and nose.³

3 At trial, B.R. also identified Gomez as her attacker.

After B.R. identified Gomez as her attacker, police officers contacted Gomez and searched his apartment and his girlfriend's apartment that was across the hallway. The officers found items connecting Gomez to the attack on B.R., including knives similar to the knife used in the attack and condoms of the same type as her attacker used. Inside Gomez's bedroom, officers also found items connecting him to the burglary of T.H.'s apartment, including a black-hooded sweatshirt with an image of a female wearing a dress and holding a pistol. They also found T.H.'s keys, jewelry, and one of her laptop computers. Inside the bedroom of Gomez's girlfriend, officers found T.H.'s other laptop computer, a black backpack containing a cloth-type purse, and T.H.'s emergency contact list. When Gomez was arrested, he possessed T.H.'s wallet, which contained Gomez's driver's license and T.H.'s library card.

Information and trial. An amended information charged Gomez with two counts of forcible rape (§ 261, subd. (a)(2), counts 1 & 3), one count of forcible sodomy (§ 286, subd. (c)(2)(A), count 2), one count of making a criminal threat (§ 422, count 4), two counts of first degree burglary (§§ 459, 460, counts 5 & 7), and one count of first degree robbery (§§ 211, 212.5, subd. (a), count 6).⁴ The information also alleged Gomez committed counts 1, 2, and 3 during a burglary and personally used a dangerous and deadly weapon in committing those offenses (§§ 667.61, subds. (a), (b), (c), & (e), 12022.3, subd. (a)). It also alleged that in committing counts 4, 5, and 6, Gomez personally used a deadly and dangerous weapon (§ 12022, subd. (b)(1)).

4 Count 5 charged Gomez with the burglary of B.R.'s apartment and count 7 charged him with the burglary of T.H.'s apartment.

Gomez waived his right to a jury trial. At a bench trial, the prosecution presented evidence substantially as described above. It also presented the testimony of N.R. regarding a prior sexual attack on her by Gomez. On March 23, 2009, Gomez, holding a knife, approached N.R. as she was walking home and demanded her phone and all her money. She complied. He forced her into an alleyway, pinned her against a wall, took off her sweater and belt, lifted her shirt, touched her breasts, and put his mouth on her ear. After she convinced him someone would hear him if he tried to rape her, he allowed her to get dressed. As he walked her toward an ATM so he could take her money, N.R. saw a police officer and screamed for help. N.R. later identified Gomez as her attacker.

The trial court convicted Gomez on all counts and found true all of the allegations. The court sentenced him to indeterminate terms of 25 years to life for each of counts 1, 2, and 3, to be served consecutively, and a determinate term of four years for count 6, with a one-year enhancement for the personal knife use allegation, and an additional one-year, four-month term for count 7. Pursuant to section 654, the court imposed, but stayed the execution of, a term of two years for count 4 and a term of four years for count 5. Gomez timely filed a notice of appeal.

DISCUSSION

I

Substantial Evidence Supports Gomez's Burglary Conviction on Count 7

Gomez contends there is insufficient evidence to support his conviction on count 7 of the first degree burglary of T.H.'s apartment. Because, as we explain below, there is substantial evidence to support his conviction on count 7, we reject his contention.

A

When a defendant challenges the sufficiency of the evidence to support a judgment, we apply the substantial evidence standard of review. Generally, our task "is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Rodriguez (1999) 20 Cal.4th 1, 11, citing People v. Johnson (1980) 26 Cal.3d 557, 578.) "Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.]" (People v. Young (2005) 34 Cal.4th 1149, 1181.) Accordingly, on appeal we do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses. (People v. Cochran (2002) 103 Cal.App.4th 8, 13.)

The substantial evidence standard of review involves two steps. "First, one must resolve all explicit conflicts in the evidence in favor of the respondent and presume in favor of the judgment all reasonable inferences. [Citation.] Second, one must determine whether the evidence thus marshaled is substantial. While it is commonly stated that our 'power' begins and ends with a determination that there is substantial evidence [citation], this does not mean we must blindly seize any evidence in support of the respondent in order to affirm the judgment. . . . '[I]f the word "substantial" [is to mean] anything at all, it clearly implies that such evidence must be of ponderable legal significance. Obviously the word cannot be deemed synonymous with "any" evidence. It must be reasonable . . . , credible, and of solid value . . . .' [Citation.] The ultimate determination is whether a reasonable trier of fact could have found for the respondent based on the whole record." (Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1632-1633, fns. omitted.) The standard of review is the same in cases in which the prosecution relies primarily on circumstantial evidence. (People v. Bean (1988) 46 Cal.3d 919, 932.)

B

A person who enters a house, room, or apartment with the intent to commit larceny or any felony is guilty of the offense of burglary. (§ 459.) The burglary of an inhabited dwelling is burglary of the first degree. (§ 460, subd. (a).) "[P]ossession of recently stolen property by itself is not sufficient to support a finding of guilt of any offense—including theft-related offenses—and, accordingly, there must be other corroborating evidence of the defendant's guilt." (People v. Moore (2011) 51 Cal.4th 1104, 1130, italics added.) However, "[w]hen . . . a defendant is found in possession of property stolen in a burglary shortly after the burglary occurred, the corroborating evidence of the defendant's acts, conduct, or declarations tending to show his guilt need only be slight to sustain the burglary convictions." (People v. Mendoza (2000) 24 Cal.4th 130, 176, italics added.) As corroborating evidence, the trier of fact may consider the time, place, and manner of the defendant's possession of stolen property, the defendant's conduct, and any other evidence that tends to connect the defendant with the crime. (People v. Parson (2008) 44 Cal.4th 332, 355.)

C

Based on our review of the entire record, we conclude there is substantial evidence to support Gomez's conviction on count 7 of the burglary of T.H.'s apartment. He possessed many of the items stolen from her apartment. On his arrest, he possessed her wallet, which contained his driver's license and her library card. In his bedroom, officers found T.H.'s keys, jewelry, and one of her laptop computers. In his girlfriend's bedroom, officers found T.H.'s other laptop computer, a black backpack containing a cloth-type purse, and T.H.'s emergency contact list.

Although the evidence of Gomez's possession of items recently stolen from T.H.'s apartment is not, by itself, sufficient to prove he committed the burglary, there is other evidence that corroborates an inference that he committed the burglary. (People v. Mendoza, supra, 24 Cal.4th at p. 176 [only slight corroborating evidence is required]; People v. Parson, supra, 44 Cal.4th at p. 355 [trier of fact may consider time, place, and manner of defendant's possession of stolen property, defendant's conduct, and any other evidence tending to connect defendant with the crime].) In particular, video from a nearby surveillance camera showed a person shortly after the burglary parking T.H.'s car and walking away carrying a dark bag. That person wore a dark sweatshirt with its hood covering his or her face. Also, the driver's seat of her car was very close to the steering wheel, indicating the burglar has a small stature. Gomez is five feet, five inches tall. Just hours after the burglary, one of T.H.'s stolen credit cards was used to complete a purchase at 10:53 a.m. at a Starbucks shop and was declined twice at 11:04 a.m. and once at 11:18 a.m. at a Subway restaurant. Videos from surveillance cameras at the Starbucks shop and Subway restaurant showed a person wearing a dark sweatshirt with a distinctive design using the stolen credit card. In the search of Gomez's bedroom two days after the burglary, officers found a black-hooded sweatshirt with a distinctive design (i.e., a female wearing a dress and holding a pistol) that was similar to the one shown on the videos.

During the bench trial, the court viewed the three surveillance videos and photographs of the items seized from Gomez's person, his apartment, and his girlfriend's apartment. It could reasonably infer from that evidence that Gomez was the person shown on the videos and that the black-hooded, distinctive sweatshirt found in his apartment was the same one worn by the person(s) shown in the videos. Based on that corroborating evidence, we conclude there is substantial evidence to support the court's finding that Gomez committed the burglary of T.H.'s apartment. To the extent Gomez points to other evidence, or the absence of other evidence (e.g., lack of Gomez's fingerprints in T.H.'s apartment or on her car), and posits inferences therefrom contrary to the judgment, he misconstrues and/or misapplies the substantial evidence standard of review.⁵

5 In particular, Gomez's challenges to the probative value of the three videos based on timing discrepancies goes to the weight given them by the trier of fact. We cannot conclude the court erred by finding those videos were accurate despite the timing discrepancies and showed Gomez driving T.H.'s car and using her credit cards at the Starbucks shop and Subway restaurant.

II

Denial of Gomez's Motion to Sever the Trial of Count 7

Gomez contends the trial court abused its discretion by denying his motion to sever the trial of count 7 alleging the burglary of T.H.'s apartment from the trial of counts 1 through 6 regarding the attack on B.R. In particular, he argues the court erred because the majority of the evidence relating to those separate victims was not cross-admissible, there was a likelihood the evidence relating to the attack on B.R. was likely to inflame the trier of fact, and there would be a spillover effect of joining the stronger case involving the attack on B.R. with the weaker case involving the burglary of T.H.'s apartment.

A

Before trial, Gomez moved to sever the trial of count 7 from the trial of counts 1 through 6. He argued the evidence on count 7 was weaker than the evidence on the other counts, the same witnesses would not be testifying in both cases, and a joint trial would be prejudicial. The prosecutor opposed the motion to sever, arguing the evidence on count 7 was not weak and several of the witnesses would be testifying in both cases. The trial court denied the motion, explaining there was cross-admissibility of evidence in both cases, both cases involved the same class of crimes, and it was in the best interest of everyone to have them tried together.

B

Section 954 provides that "[a]n accusatory pleading may charge . . . two or more different offenses of the same class of crimes or offenses, under separate counts, . . . provided[] that the court in which a case is triable, in the interest[] of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately or divided into two or more groups and each of said groups tried separately." Accordingly, even if an information properly joins charges of different offenses of the same class, the court has discretion to try those charges separately. (People v. Merriman (2014) 60 Cal.4th 1, 37.)

A trial court's denial of a motion to sever "may be an abuse of discretion where: (1) evidence on the crimes to be jointly tried would not be cross-admissible in separate trials; (2) certain of the charges are unusually likely to inflame the jury against the defendant; (3) a 'weak' case has been joined with a 'strong' case, or with another 'weak' case, so that the 'spillover' effect of aggregate evidence on several charges might well alter the outcome of some or all of the charges; and (4) any one of the charges carries the death penalty or joinder of them turns the matter into a capital case. [Citations.]" (People v. Sandoval (1992) 4 Cal.4th 155, 172-173.) A party moving to sever the trial of charges must establish that there is a substantial danger of prejudice that requires separate trials and that the potential prejudice outweighs the state's strong interest in the efficiency of a joint trial. (People v. Merriman, supra, 60 Cal.4th at p. 37.) On appeal, we review a trial court's decision to deny a motion to sever for abuse of discretion. (People v. Soper (2009) 45 Cal.4th 759, 774.) Nevertheless, even if a trial court does not abuse its discretion by denying a motion to sever, a judgment must be reversed if the joint trial resulted in gross unfairness that denied the defendant's constitutional right to due process. (Merriman, at p. 46.)

C

Based on our review of the record, we conclude the trial court did not abuse its discretion by denying Gomez's motion to sever the trial of count 7 from the trial of the other counts. Because Gomez apparently concedes that the offenses charged against him were of the same class, we focus solely on the question of whether the court abused its discretion by concluding the relevant factors did not require separate trials.⁶ Assuming arguendo that there was little, if any, cross-admissibility of evidence on the charges involving B.R. and the burglary charge involving T.H., the court could nevertheless reasonably conclude there was an insufficient showing of potential prejudice from a joint trial to outweigh the state's interest in the efficiency of a joint trial. (People v. Soper, supra, 45 Cal.4th at p. 775.)

6 We, however, note that the charges against Gomez included separate theft offenses against B.R. and T.H., which offenses were of the same class for joinder purposes. (Cf. People v. Maury (2003) 30 Cal.4th 342, 395 [proper joinder of the assaultive crimes of murder and rape as offenses of the same class].)

As the People assert, there was little, if any, risk of a "spillover" effect by having a joint trial in which the trier of fact would consider evidence relevant to the crimes alleged committed against both B.R. and T.H. First, there was virtually no possibility that the trier of fact would improperly consider the evidence admitted on counts 1 through 6 (i.e., crimes allegedly committed against B.R.) in deciding count 7 (i.e., burglary allegedly committed against T.H.). On that issue, joinder cases have focused on the possibility that jurors may become inflamed based on charges, or evidence admitted on charges, other than the instant joined charged offense. (See, e.g., People v. Soper, supra, 45 Cal.4th at p. 775 [one factor is "whether some of the charges are particularly likely to inflame the jury against the defendant"].) However, in this case there was no jury. Rather, the case was tried to the court (i.e., a bench trial). Absent any evidence in the record affirmatively showing otherwise, we must presume the court knew and followed the law. (People v. Coddington (2000) 23 Cal.4th 529, 644.) Accordingly, we presume the court would not, and did not, become inflamed against Gomez based on the charges or evidence involving B.R. and improperly convict him on count 7 based thereon. (Cf. People v. Martin (2005) 127 Cal.App.4th 970, 977 [appellate court assumed that trial court properly considered testimony solely for purpose of assessing experts' credibility and not as independent proof of facts].) In any event, Gomez has not carried his burden on appeal to show the court abused its discretion by concluding that it, as the trier of fact, was not likely to be inflamed by the charges or evidence involving B.R. and improperly convict him on count 7.⁷

7 We reject, as wholly unfounded, Gomez's conclusory assertion that "[h]ere, there can be no doubt the sexual assaults and criminal threats, coupled with the use of a knife, were likely to inflame the trier of fact [i.e., the court] against Gomez."

Also, the record supports a finding by the trial court that there was little, if any, chance of a "spillover" effect because the evidence the prosecution was expected to present on count 7 was not "weak" such that the court might improperly convict him on count 7 based on the purportedly stronger evidence on the charges involving B.R. As discussed above, there was substantial, if not overwhelming, evidence to support the court's finding that Gomez committed the burglary against T.H. Shortly after the burglary, he was found in actual or constructive possession of most of the stolen items. He appeared to be the person of small stature wearing a dark sweatshirt who was shown on the surveillance video driving and parking T.H.'s car. Based on the distinctive sweatshirt found in his apartment, he appeared to be the person wearing the same distinctive sweatshirt who, just a few hours after the burglary, used, or attempted to use, T.H.'s stolen credit card at the Starbucks shop and the Subway restaurant. Even had the evidence on count 7 been admitted in a separate trial, that evidence was strong, if not overwhelming, proof that Gomez committed the burglary against T.H.⁸ Accordingly, it was highly unlikely the court, in a bench trial, would convict him on count 7 based, instead, on evidence admitted to prove the other charges involving the attack on B.R. (including the prior acts testimony of N.R.). In any event, Gomez has not carried his burden on appeal to show the court erred by concluding that the joinder of the trial on count 7 with the trial on the other counts would not alter the outcome on count 7 (i.e., have a spillover effect). Accordingly, we conclude the trial court did not abuse its discretion by concluding the risk of any spillover effect, inflammatory response, or other prejudice that could result from a joint trial was so minimal, if not nonexistent, that it did not outweigh the benefits to the state in the efficiency of a joint trial where there was significant commonality or overlap in the evidence regarding the investigations of the crimes committed against B.R. and T.H. (Cf. People v. Soper, supra, 45 Cal.4th at pp. 779-783.) Therefore, the court did not err by denying Gomez's motion to sever the trial.

8 We reject Gomez's assertion that "there was scant evidence to prove he was the burglar."

Finally, we reject Gomez's assertion that even though the trial court did not abuse its discretion by denying his motion to sever, his joint trial was, in fact, grossly unfair and denied him his constitutional right to due process of law. Considering the evidence actually admitted at his joint trial, we conclude Gomez has not carried his burden on appeal to show his trial was grossly unfair, there was a reasonable probability the joinder affected the court's verdicts, and he was denied his right to due process. (People v. Merriman, supra, 60 Cal.4th at p. 49 [defendant has burden to show reasonable probability the joinder affected the verdicts]; People v. Thomas (2012) 53 Cal.4th 771, 800-801 [appellate court reviews actual evidence admitted at trial in determining whether there was gross unfairness]; People v. Mendoza, supra, 24 Cal.4th at p. 162 [defendant has burden to show gross unfairness of trial].) In particular, absent affirmative evidence to the contrary, we presume the court, as the trier of fact, understood applicable law and did not consider the evidence relating to the attack on B.R. (including the prior acts testimony of N.R.) in deciding whether Gomez committed the burglary of T.H.'s apartment. None of the cases cited by Gomez are apposite to this case or otherwise persuade us his trial was grossly unfair and he was denied his right to due process. (See, e.g., People v. Earle (2009) 172 Cal.App.4th 372; People v. Grant (2003) 113 Cal.App.4th 579.) Unlike in those cases, the record in this case does not show the prosecution encouraged improper inferences from evidence on other charges in the joint trial or that the trier of fact was likely to be inflamed or otherwise prejudiced against Gomez based on the other charges or the evidence thereon.

III

Admission of the Starbucks and Subway Videos

Gomez contends the trial court erred by admitting the Starbucks and Subway videos without a proper foundation and in violation of Evidence Code section 352.

A

During the testimony of San Diego Police Detectives Sinclair and Duerr, the prosecution showed, without objection by Gomez's counsel, videos from surveillance cameras at the Starbucks shop and Subway restaurant, as well as photographs from those videos, which depicted a person in a black-hooded sweatshirt with a distinctive design using a credit card just hours after the burglary of T.H.'s apartment. At the close of the prosecution's case, the prosecutor moved to admit all 34 exhibits that she presented during the trial. Gomez's counsel objected to admission of all 34 exhibits on grounds that they were cumulative, unduly prejudicial under Evidence Code section 352, and lacked foundation. The trial court overruled his objection, finding the evidence was not cumulative and was very probative and not outrageous or otherwise prejudicial under Evidence Code section 352. It further stated: "As to foundation, frankly, the court didn't hear any foundation objections at the time. It's difficult now to say what the foundation was to all 34 [exhibits]. The court was very cautious, frankly, when various people testified to make sure the appropriate foundation was laid. And the court will find [as] to each of these [exhibits], the foundation was made." Regarding the videos, the court stated: "The Starbucks and the Subway video[s] found the officers who obtained them laid the foundation that they received them and these are in fact them. My point to all that is most of this, the actual chain of custody person was brought in to lay the foundation as to many of them."

B

"Photographs and video recordings with imprinted data are writings as defined by the Evidence Code. (Evid. Code, § 250.) To be admissible in evidence, a writing must be relevant and authenticated. ([Evid. Code,] §§ 350, 1401.) The proffered evidence must be an original writing or otherwise admissible secondary evidence of the writing's content. ([Evid. Code,] §§ 1520, 1521.) And it must not be subject to any exclusionary rule. (See, e.g., [Evid. Code,] § 1200.)" (People v. Goldsmith (2014) 59 Cal.4th 258, 266 (Goldsmith).)

"Authentication of a writing, including a photograph, is required before it may be admitted in evidence. ([Evid. Code,] §§ 250, 1401.) Authentication is to be determined by the trial court as a preliminary fact [citation] and is statutorily defined as 'the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is' or 'the establishment of such facts by any other means provided by law' [citation]. The statutory definition ties authentication to relevance." (Goldsmith, supra, 59 Cal.4th at p. 266.) "Authentication is essentially a subset of relevance." (Id. at p. 267.)

"[T]he proof that is necessary to authenticate a photograph or video recording varies with the nature of the evidence that the photograph or video recording is being offered to prove and with the degree of possibility of error. [Citation.] The first step is to determine the purpose for which the evidence is being offered. The purpose of the evidence will determine what must be shown for authentication, which may vary from case to case. [Citation.] The foundation requires that there be sufficient evidence for a trier of fact to find that the writing is what it purports to be, i.e., that it is genuine for the purpose offered. [Citation.] Essentially, what is necessary is a prima facie case. 'As long as the evidence would support a finding of authenticity, the writing is admissible. The fact conflicting inferences can be drawn regarding authenticity goes to the document's weight as evidence, not its admissibility.' [Citation.]" (Goldsmith, supra, 59 Cal.4th at p. 267.)

"A photograph or video recording is typically authenticated by showing it is a fair and accurate representation of the scene depicted. [Citations.] This foundation may, but need not be, supplied by the person taking the photograph or by a person who witnessed the event being recorded. [Citations.] It may be supplied by other witness testimony, circumstantial evidence, content and location. [Citations.] Authentication also may be established 'by any other means provided by law' ([Evid. Code,] § 1400), including a statutory presumption. [Citation.]" (Goldsmith, supra, 59 Cal.4th at pp. 267-268.) In particular, Evidence Code section 1553, subdivision (a), provides: "A printed representation of images stored on a video or digital medium is presumed to be an accurate representation of the images it purports to represent. . . ."

On appeal, a trial court's ruling on the admissibility of evidence is reviewed for abuse of discretion. (Goldsmith, supra, 59 Cal.4th at p. 266.) Accordingly, we will not disturb the trial court's ruling unless the appellant shows the court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. (Ibid.)

C

The People assert, and we agree, that Gomez forfeited any challenge to the admission of the Starbucks and Subway videos by not timely and specifically objecting below. Evidence Code section 353, subdivision (a), provides that a judgment may not be reversed for erroneous admission of evidence unless "[t]here appears of record an objection to . . . the evidence that was timely made and so stated as to make clear the specific ground of the objection . . . ." Absent a timely and specific objection to the admission of evidence, an appellant forfeits arguments on appeal based on the erroneous admission of evidence. (People v. Demetrulias (2006) 39 Cal.4th 1, 21.) The requirement of a timely and specific objection serves to prevent error and allows the proponent of the evidence to lay additional foundation, modify the offer of proof, or take other steps to minimize the prospect of reversal. (People v. Partida (2005) 37 Cal.4th 428, 434.)

In this case, Gomez's counsel did not object when the prosecutor played the Starbucks and Subway videos, and showed photographs therefrom, during the testimony of Detectives Sinclair and Duerr. He also did not object when the detectives testified regarding how they obtained those videos. If he had timely and specifically objected at that time on the grounds of inadequate authentication or other foundation, the prosecutor presumably would have been able to remedy any purported deficiency. However, he waited until the prosecution rested its case to object to all 34 exhibits it offered in evidence and, in so doing, did not cite any specific foundational problems for the Starbucks and Subway videos. Accordingly, we conclude Gomez forfeited any challenge on appeal to the admission of those videos. (People v. Demetrulias, supra, 39 Cal.4th at p. 21.)

D

In his appellant's reply brief, Gomez argues that if he forfeited his challenge to admission of the Starbucks and Subway videos, he was denied his constitutional right to effective assistance of counsel. As we explain below, we conclude he has not carried his burden on appeal to show he was denied that constitutional right.

A criminal defendant is constitutionally entitled to effective assistance of counsel. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15; Strickland v. Washington (1984) 466 U.S. 668, 684-685; People v. Pope (1979) 23 Cal.3d 412, 422.) To show denial of the right to counsel, a defendant must show: (1) his or her counsel's performance was below an objective standard of reasonableness under prevailing professional norms; and (2) the deficient performance prejudiced the defendant. (Strickland, at pp. 687, 691-692; People v. Ledesma (1987) 43 Cal.3d 171, 216-217; Pope, at p. 425.) To show prejudice, a defendant must show there is a reasonable probability that he or she would have received a more favorable result had his or her counsel's performance not been deficient. (Strickland, at pp. 693-694; Ledesma, at pp. 217-218.) "When a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the [trial counsel's] errors, the factfinder would have had a reasonable doubt respecting guilt." (Strickland, at p. 695.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome. [Citation.]" (People v. Williams (1997) 16 Cal.4th 153, 215.) It is the defendant's burden on appeal to show that he or she was denied effective assistance of counsel and is entitled to relief. (Ledesma, at p. 218.)

"In evaluating a defendant's claim of deficient performance by counsel, there is a 'strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance' [citations], and we accord great deference to counsel's tactical decisions. [Citations.] . . . Accordingly, a reviewing court will reverse a conviction on the ground of inadequate counsel 'only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission.' [Citations.]" (People v. Frye (1998) 18 Cal.4th 894, 979-980.) If the record on appeal " 'sheds no light on why counsel acted or failed to act in the manner challenged[,] . . . unless counsel was asked for an explanation and failed to provide one, or unless there could be no satisfactory explanation,' the claim [of ineffective assistance of counsel] on appeal must be rejected." (People v. Wilson (1992) 3 Cal.4th 926, 936.) In such a case, the claim "is more appropriately decided in a habeas corpus proceeding." (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)

Furthermore, a court need not address the issue of whether a defendant's counsel performed deficiently before it addresses the issue of whether the defendant was prejudiced by that purported deficient performance. "If it is easier to dispose of an ineffectiveness claim on the ground of a lack of sufficient prejudice, which we expect will often be so, that course should be followed." (Strickland v. Washington, supra, 466 U.S. at p. 697; see also In re Alvernaz (1992) 2 Cal.4th 924, 945.)

Assuming arguendo Gomez's counsel performed deficiently as he asserts, we nevertheless conclude he has not carried his burden on appeal to show that such deficient performance prejudiced his case. (Strickland v. Washington, supra, 466 U.S. at pp. 687, 691-692, 697; People v. Ledesma, supra, 43 Cal.3d at pp. 216-217; People v. Pope, supra, 23 Cal.3d at p. 425.) Based on our review of the evidence, we conclude it is not reasonably probable Gomez would have obtained a more favorable verdict had his counsel not performed deficiently as he asserts by not timely and specifically objecting to admission of the Starbucks and Subway videos. First, had his counsel timely and specifically objected, "the prosecution might well have been able to supply the links [or other required showings] missing from the [proper authentication of the videos], so that the objection would not benefit defendant because the evidence would remain admissible." (People v. Diaz (1992) 3 Cal.4th 495, 560 [regarding chain of custody for admission of physical evidence].) Second, the trial court acted within its reasonable discretion by concluding an adequate foundation for admission of the videos had been established by the prosecution. The detectives testified they obtained the videos from Starbucks and Subway that corresponded with the credit card transactions just hours after the burglary of T.H.'s apartment. Her credit card statement showed her stolen card was used at Starbucks at 10:53 a.m. on October 15, 2014. Although the Starbucks video was time stamped 10:04 a.m., the detective explained that Starbucks had informed him the video time stamp was 48 minutes slow. Therefore, the video offered in evidence closely correlated with the time of the credit card transaction. Likewise, the credit card statement showed unsuccessful attempts to use T.H.'s credit card at Subway at 11:04 a.m. and 11:18 a.m. on October 15. The file name for the Subway video showed the time of 11:04 a.m. and the date of October 15, thereby indicating a close correlation between the video and the time of the attempted credit card transactions.

Furthermore, given the appearance of the Starbucks shop and Subway restaurant and their employees shown in the videos, there was circumstantial evidence to support a finding that the videos were what they purported to be and there was no evidence presented to rebut that finding. (Goldsmith, supra, 59 Cal.4th at p. 268; see also Evid. Code, § 1553, subd. (a) ["A printed representation of images stored on a video or digital medium is presumed to be an accurate representation of the images it purports to represent."].) Although Gomez argues that the discrepancies in the videos' time stamps versus the times of credit card transactions precluded their admission, any inaccuracies or discrepancies in the times went to the weight to be given them by the trier of fact and did not preclude their admission in evidence. (Goldsmith, at p. 267.) Contrary to Gomez's apparent assertion, the testimony of a technician, cashier, or manager is not required to establish a proper foundation for admission of a video. (Id. at p. 272.)

Because Gomez has not shown the trial court abused its discretion by finding there was an adequate foundation for admission of the videos, he has not carried his burden on appeal to show he was prejudiced by his counsel's purported deficient performance and, based thereon, was denied his right to effective assistance of counsel. (Strickland v. Washington, supra, 466 U.S. at p. 697; In re Alvernaz, supra, 2 Cal.4th at p. 945.) Alternatively stated, our confidence in the outcome of Gomez's trial is not undermined by the purported deficient performance of his counsel. Because he was not prejudiced by his counsel's purported deficient performance, he was not denied his constitutional right to effective assistance of counsel. (Strickland v. Washington, supra, at pp. 687, 691-692, 697; People v. Ledesma, supra, 43 Cal.3d 171, 216-217; People v. Pope, supra, 23 Cal.3d at p. 425.)

E

Gomez also asserts the trial court abused its discretion under Evidence Code section 352 by admitting the Starbucks and Subway videos, arguing they were misleading, confusing, and unduly prejudicial.

Evidence Code section 352 provides that a court may, in its discretion, exclude evidence "if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." Evidence is probative if it has a tendency in reason to prove or disprove any disputed fact. (People v. Prince (2007) 40 Cal.4th 1179, 1237.) Under Evidence Code section 352, evidence is not prejudicial merely because it harms a party's position or helps the other party's position. (People v. Scott (2011) 52 Cal.4th 452, 490.) Relevant evidence can properly have that effect. (Ibid.) Rather, evidence is prejudicial under Evidence Code section 352 when it uniquely tends to evoke an emotional bias against a party while having only slight probative value on the issues. (People v. Carter (2005) 36 Cal.4th 1114, 1168.) Alternatively stated, evidence is unduly prejudicial and should be excluded when it is of such a nature as to inflame the emotions of the trier of fact so that it uses the information not to logically evaluate the relevant issues, but to instead reward or punish one party because of an emotional reaction. (Scott, at p. 491.)

Assuming arguendo Gomez's counsel timely and specifically objected to the admission of the Starbucks and Subway videos under Evidence Code section 352, we conclude the trial court did not abuse its discretion by overruling that objection and admitting those videos. Contrary to Gomez's argument, the trial court correctly found the videos were properly authenticated and were probative on the issue of his guilt of the burglary of T.H.'s apartment. The videos showed a person wearing a distinctive sweatshirt using a credit card at Starbucks and Subway at about the same times as T.H.'s credit card statement showed someone using her stolen card. Because the times were the same and the distinctive sweatshirt was found in Gomez's bedroom, the videos were very probative on the issue of whether he committed the burglary of T.H.'s apartment. The fact that the videos harmed his defense or strengthened the prosecution's case did not make those videos "prejudicial" within the meaning of Evidence Code section 352. (People v. Scott, supra, 52 Cal.4th at p. 490.) Contrary to Gomez's assertion, there was nothing outrageous, inflammatory, or otherwise unduly prejudicial about the videos that warranted their exclusion under Evidence Code section 352. Likewise, he does not persuade us that the videos should have been excluded because they were irrelevant, misleading, or confusing. Accordingly, we conclude the court properly admitted the videos in evidence.

F

Gomez also asserts the admission of the Starbucks and Subway videos deprived him of his constitutional rights to a fair trial and due process. However, his argument is premised on his presumption that the video evidence was erroneously admitted because it lacked relevance or was unduly prejudicial under Evidence Code section 352. Because we rejected that premise above, we likewise reject his assertion that the admission of the Starbucks and Subway videos violated his constitutional rights. The admission of those videos did not make his trial fundamentally unfair or otherwise violate his due process rights.

IV

Effective Assistance of Counsel

Gomez contends he was denied his constitutional right to effective assistance of counsel when his counsel did not object to admission of DNA evidence and B.R.'s testimony about his state of mind.

A

Hours after the attack on B.R. on October 11, 2014, Sandy examined her. At trial, Sandy testified that B.R. told her that the attacker had put his tongue in her left ear. Sandy took a sample swab from B.R.'s left ear, placed it inside a tube, screwed on the tube's top, and sealed the tube. She placed the sealed tube inside an evidence kit which was then, in turn, sealed with evidence tape. She then "sen[t] it off" to be secured by her facility.

On October 14, 2014, per the request of San Diego Police Detective Elmer Edwards, criminalist Daniel Glorae retrieved the evidence kit from the police department's property room to perform preliminary DNA testing. Glorae testified the kit, bearing the bar code number 10416889, was properly sealed and packaged. Because the kit included several tubes, Glorae created sub-identifier bar codes for each tube, including the tube that contained the left ear swab. However, in so doing, Glorae mislabeled the tubes by using the bar code "10416689," rather than its correct bar code of 10416889. Glorae sent the labeled tubes to criminalist Eric Bieschke, who discovered and informed Glorae of the labeling error. Glorae testified that although the evidence kit that correctly had the bar code 10416689 was from a different, unrelated case, the mislabeling error did not affect the test results in this case because that other evidence was not stored, checked out, or tested by his laboratory and he worked on only one evidence kit at a time.

Bieschke testified that he received a rack with test tubes relating to this case directly from Glorae. Using those samples and reference samples from B.R. and Gomez, he created DNA profiles for B.R. and Gomez, compared them to the DNA profile for the swab taken from B.R.'s left ear, and determined Gomez was included as a second possible major contributor to that swab sample.

B

A trial court has broad discretion in deciding the admissibility of evidence. (People v. Williams, supra, 16 Cal.4th at p. 196.) If a chain of custody objection is made to the admission of DNA evidence, the proponent of that evidence must establish a proper chain of custody. (People v. Jimenez (2008) 165 Cal.App.4th 75, 81.) The proponent must show to the satisfaction of the court that, given the circumstances in the case including the ease or difficulty with which the evidence could have been altered, it is reasonably certain that there was no alteration. (People v. Catlin (2001) 26 Cal.4th 81, 134.) The requirement of reasonable certainty is not met when some vital link in the chain of possession is not accounted for, because then it is as likely as not that the evidence was not the evidence originally received. (Ibid.) However, when there is only the barest speculation that the evidence was altered or tampered with, the evidence is admissible and any doubt regarding its chain of custody goes to the weight of that evidence. (Ibid.) " 'While a perfect chain of custody is desirable, gaps will not result in the exclusion of the evidence, so long as the links offered connect the evidence with the case and raise no serious questions of tampering.' " (Ibid., quoting Mendez, Cal. Evidence (1993) § 13.05, p. 237.) A trial court's exercise of discretion in admitting evidence is reviewed on appeal for abuse of discretion. (Catlin, at p. 134.)

C

Gomez asserts that his counsel should have objected to admission of the DNA evidence because the prosecution did not establish an adequate chain of custody showing it was reasonably certain there was no alteration of that evidence and that his counsel could have had no rational tactical reason not to object on that ground. In particular, he argues the record does not show what happened to the DNA samples between the time Sandy took them on October 11, 2014, and the time Glorae retrieved them from the property room on October 14, 2014, raising questions about their possession, transfer, and security. He also argues the record does not show how B.R.'s reference sample was taken. In a conclusory fashion, Gomez argues that because the trial court would have sustained a chain of custody objection and stricken the DNA evidence, his counsel could have had no tactical reason not to object to admission of the DNA evidence on that ground.

However, the record on appeal does not show what, if any, tactical reason or reasons Gomez's counsel may have had to not object to admission of the DNA evidence.⁹ Furthermore, contrary to Gomez's assertion, it is possible that his counsel could have had a rational tactical reason or explanation for not objecting to the DNA evidence on the ground of an inadequate showing of its chain of custody. (People v. Frye, supra, 18 Cal.4th at pp. 979-980; People v. Wilson, supra, 3 Cal.4th at p. 936.) The record shows Gomez's counsel entered into a pretrial stipulation with the prosecutor regarding independent testing of the DNA evidence. Although we do not address the substance of that stipulation, it shows Gomez's counsel was aware of the DNA evidence and presumably was involved in its independent testing. Based thereon and common pretrial investigation measures regarding DNA evidence, we further presume his counsel was familiar with the chain of custody for the DNA evidence and found there were no obvious missing links in that chain that could support a reasonable inference that the evidence was altered or was otherwise not as represented. Therefore, absent evidence in the record affirmatively showing otherwise, it is possible the pretrial investigation by Gomez's counsel confirmed that there was an adequate chain of custody for the DNA evidence and, based thereon, he made the tactical decision not to object to its admission at trial in order to avoid unnecessarily prolonging the trial. (Cf. People v. Diaz (1992) 3 Cal.4th 495, 560 ["Had counsel objected, the prosecution might well have been able to supply the links missing from the custody chain, so that the objection would not benefit defendant because the evidence would remain admissible. Defense counsel's realization of this may explain his decision not to register an objection that would slow down an already lengthy trial."].) Also, by not objecting and allowing the prosecutor to present testimony showing an arguably incomplete chain of custody, Gomez's counsel could have had the additional tactical reason of preserving that issue for closing argument and then arguing in closing that questions remained about its chain of custody in an attempt to diminish the weight given by the trier of fact to the DNA evidence. Accordingly, because there could be a rational tactical reason for Gomez's counsel's failure to object to admission of the DNA evidence on chain of custody grounds, we decline to address the merits of Gomez's ineffective assistance of counsel contention.¹⁰ (Frye, at pp. 979-980; Wilson, at p. 936; People v. Mendoza Tello, supra, 15 Cal.4th at pp. 266-267.)

9 We incorporate herein our discussion above regarding the legal standards applicable to ineffective assistance of counsel claims.

10 Accordingly, our decision in this case is without prejudice to Gomez's ability to raise the claim of ineffective assistance of counsel in the superior court in a habeas corpus petition or otherwise.

Assuming arguendo Gomez's counsel could have had no rational tactical reason for not objecting to admission of the DNA evidence on the grounds of an inadequate chain of custody, we nevertheless conclude that Gomez has not carried his burden on appeal to show that such purported deficient performance was prejudicial to him. To show prejudice, a defendant must show there is a reasonable probability that he or she would have received a more favorable result had his or her counsel's performance not been deficient. (Strickland v. Washington, supra, 466 U.S. at pp. 693-694; People v. Ledesma, supra, 43 Cal.3d at pp. 217-218.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome. [Citation.]" (People v. Williams, supra, 16 Cal.4th at p. 215.) Based on our review of the record on appeal, we conclude it is possible that, had Gomez's counsel objected to admission of the DNA evidence on the ground of an inadequate showing of its chain of custody and the court sustained that objection, the prosecution may nevertheless have been able to present additional testimony or other evidence establishing an adequate chain of custody. (Cf. People v. Diaz, supra, 3 Cal.4th at p. 560 ["Had counsel objected, the prosecution might well have been able to supply the links missing from the custody chain, so that the objection would not benefit defendant because the evidence would remain admissible."].)

In any event, had the trial court sustained an objection and stricken the DNA evidence, there nevertheless remained strong evidence supporting a finding that Gomez committed the offenses against B.R. In particular, shortly after the attack, B.R. identified Gomez's photograph as her attacker. At trial, she also identified Gomez as her attacker. In Gomez's apartment, police found the same type of condoms that were used by B.R.'s attacker. Police also found in his apartment knives that were similar to the knife used by B.R.'s attacker. N.R. also testified regarding a prior sexual offense committed on her by Gomez, showing his propensity to commit such offenses. Although Gomez attempts to discredit B.R.'s identification of him and otherwise diminish the probative value or weight of the prosecution's other evidence, we conclude that it is not reasonably probable he would have obtained a more favorable result if his counsel had objected and the trial court sustained that objection and excluded the DNA evidence. (Strickland v. Washington, supra, 466 U.S. at pp. 693-694; People v. Ledesma, supra, 43 Cal.3d at pp. 217-218.) Alternatively, the purported deficient performance of Gomez's counsel has not undermined our confidence in the outcome of Gomez's trial. (People v. Williams, supra, 16 Cal.4th at p. 215.) People v. Jimenez, supra, 165 Cal.App.4th 75, cited by Gomez, is inapposite to this case and does not persuade us to reach a contrary conclusion.

D

Gomez also asserts he was denied effective assistance of counsel when his counsel did not object to B.R.'s testimony about his state of mind based on his having shaved parts of his body. At trial, B.R. testified that while Gomez's penis was inside her vagina the first time, she noticed that "it felt like his pubic hair and legs were shaved." When the prosecutor asked her what she thought about that, she testified, without objection by Gomez's counsel, that it was "[l]ike he did it premeditated, and he planned on raping someone, so he shaved his body hair."

Assuming arguendo Gomez's counsel could have had no rational tactical reason for not objecting to B.R.'s testimony regarding Gomez's state of mind in shaving parts of his body and that such testimony would have been stricken by the trial court as an improper opinion on his state of mind (see, e.g., Evid. Code, § 800, subd. (b)) had his counsel objected, we nevertheless conclude Gomez has not carried his burden on appeal to show that purported deficient performance was prejudicial to him. On the contrary, there is strong evidence, discussed above, supporting a finding that Gomez committed the offenses against B.R. Also, because Gomez's trial was a bench trial, we presume the trial court, as the trier of fact, did not give any weight to B.R.'s testimony regarding Gomez's state of mind regarding his shaved body parts and certainly did not base its verdicts on that testimony in any part. Accordingly, we conclude that it is not reasonably probable Gomez would have obtained a more favorable result if his counsel had objected and the trial court sustained that objection and excluded that testimony by B.R. (Strickland v. Washington, supra, 466 U.S. at pp. 693-694; People v. Ledesma, supra, 43 Cal.3d at pp. 217-218.) Alternatively, the purported deficient performance of Gomez's counsel has not undermined our confidence in the outcome of Gomez's trial. (People v. Williams, supra, 16 Cal.4th at p. 215.) Furthermore, we conclude that had Gomez's counsel not performed deficiently as Gomez asserts in not objecting to both the DNA evidence and B.R.'s testimony on his state of mind, there was no cumulative prejudicial effect that undermines our confidence in the outcome of his trial. (Ibid.)

V

Consecutive Terms on Counts 1, 2, and 3

Gomez contends the trial court erred by sentencing him to consecutive terms on counts 1, 2, and 3 pursuant to section 667.61, subdivision (i), and section 667.6, subdivisions (c) and (d). In particular, he argues there is insufficient evidence to support the court's section 667.61, subdivision (d), finding that he had a reasonable opportunity to reflect on his actions between each offense and nevertheless resumed his assault on B.R. He alternatively argues that if he forfeited that contention when his counsel did not object below, he was denied effective assistance of counsel.

A

During his initial insertion of his penis in B.R.'s vagina (count 1), Gomez told her he "wanted to try something different." He then removed his penis from her vagina. While he stood next to her holding the knife, he told her to stand up. She complied and stood up. Gomez touched her breasts with his hands and mouth. He then told her to turn around and bend over the bed. She complied and bent over the bed.

After B.R. bent over the bed, Gomez inserted his penis into her anus (count 2). She stood up immediately, turned around, and, facing him, sternly stated: "You asked me what I am afraid of, and I have never done that and I don't want to, please don't do that to me." He replied, "okay," and told her to bend over the bed again. She turned around and bent over the bed. He inserted his penis into her vagina a second time (count 3).

The trial court found Gomez guilty on, inter alia, counts 1, 2, and 3. At sentencing, Gomez's counsel requested that the court sentence Gomez to concurrent sentences on counts 1, 2, and 3. The prosecutor argued that consecutive terms were required on counts 1, 2, and 3 pursuant to section 667.6, subdivision (d), and, if not, the court should nevertheless exercise its discretion under section 667.6, subdivision (c), to impose consecutive terms on those counts. The court sentenced Gomez to indeterminate terms of 25 years to life for each of counts 1, 2, and 3, to be served consecutively. In so doing, the court found that counts 1, 2, and 3 were committed on separate occasions within the meaning of section 667.6, subdivision (d). It found that Gomez had a reasonable opportunity to reflect upon his actions between the offenses and nevertheless resumed his sexual assault on B.R. The court explained:

"[During count 1,] [w]ords were exchanged. He then stopped, he allowed her to get up and out of bed. He directed her to get up and out of bed and bent her over, at which time he then inserted his penis into her anus, hence, which constitutes count 2. The court does find that, that was a separate occasion, he had the reflection of time, there was break in the moment, based on the conversation they had previously had, [B.R.] stopped, looked at him and turned to him and said you asked what my wors[t] nightmare was, this was it. I have never done anything like this, or similar words to that effect. And with that, he then took out his penis and raped her in her vaginal area again [count 3].

"And the court finds that based on those reflective actions, that he resumed that sexual assault, and he stopped, he looked at her, they had a conversation, and he nonetheless resumed the assaultive behavior, between each one of those . . . incidents. And hence, the court does feel that the criteria as listed under [section] 667.6[, subdivision (d),] [have] been met."

Accordingly, the court imposed consecutive terms for counts 1, 2, and 3 as mandated by section 667.6, subdivision (d). The court alternatively exercised its discretion under section 667.6, subdivision (c), to impose consecutive terms for those counts, citing "the circumstances of this case, the use of the knife, the heinous activity, the front positions, [and] the length of time."

B

Under the One Strike law, section 667.61, subdivision (i), provides that for certain specified offenses including forcible rape and forcible sodomy, "the court shall impose a consecutive sentence for each offense that results in a conviction under this section if the crimes involve separate victims or involve the same victim on separate occasions as defined in subdivision (d) of Section 667.6." (Italics added.) Section 667.6, subdivision (d), provides:

"A full, separate, and consecutive term shall be imposed for each violation of an offense specified in subdivision (e) [e.g., forcible rape and forcible sodomy] 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 the 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.)

If, however, the crimes against the same victim were not committed on separate occasions, the court nevertheless has discretion to impose consecutive terms under section 667.6, subdivision (c).

Under section 667.6, subdivision (d), a finding of "separate occasions" does not require "a break of any specific duration or any change in physical location." (People v. Jones (2001) 25 Cal.4th 98, 104.) A forcible sexual assault consisting of various types of sex acts committed over time is not necessarily one sexual encounter. (Ibid., citing People v. Irvin (1995) 43 Cal.App.4th 1063, 1071.) In Irvin, the court stated:

"[A] forcible violent sexual assault made up of varied types of sex acts committed over time against a victim, is not necessarily one sexual encounter. Such a sexual assault consisting of multiple types of sex acts committed against the victim is not motivated by sexual pleasure. Instead, it is frequently intended to degrade the victim. . . . Therefore, at sentencing a trial court could find a defendant had a 'reasonable opportunity to reflect upon his or her actions' even

though the parties never changed physical locations and the parties 'merely' changed positions." (People v. Irvin, supra, 43 Cal.App.4th at p. 1071.)

Furthermore, in certain circumstances a momentary pause between crimes may be sufficient for a defendant to reasonably reflect on his or her actions and then resume his or her assault. (Cf. People v. King (2010) 183 Cal.App.4th 1281, 1325 [defendant had reasonable opportunity to reflect when he saw lights of car driving by and momentarily paused to look around uneasily before resuming his sexual assault].) On appeal, we will reverse a trial court's finding of "separate occasions" under section 667.6, subdivision (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.)

C

Assuming arguendo that Gomez did not forfeit his contention by not objecting below to the imposition of consecutive terms on counts 1, 2, and 3, we conclude the trial court properly found he had reasonable opportunities to reflect between each of those counts and nevertheless resumed his sexual assault on B.R., thereby requiring the imposition of consecutive terms under section 667.6, subdivision (d). In particular, a reasonable trier of fact could decide Gomez had a reasonable opportunity to reflect between counts 1 and 2 and nevertheless resumed his assault on B.R. At trial, B.R. testified that after Gomez committed count 1 (i.e., the first insertion of his penis in her vagina), he apparently stood up and then told her to stand up. She complied, getting up off of the bed, and stood up. Gomez touched her breasts with his hands and mouth. He then told her to turn around and bend over the bed. She complied and bent over the bed. He then committed count 2 (i.e., inserted his penis into her anus). That testimony shows that not only did Gomez change sexual positions with B.R. between counts 1 and 2, he also stood up, told her to stand up, touched her breasts, and then told her to turn around and bend over the bed before resuming his sexual assault on her by inserting his penis into her anus. That break in events and two changes in B.R.'s position per Gomez's directions was sufficient for the trial court to find he momentarily paused or otherwise had a reasonable opportunity to reflect on his actions and nevertheless resumed his sexually assaultive behavior within the meaning of section 667.6, subdivision (d).

Similarly, a reasonable trier of fact could decide Gomez had a reasonable opportunity to reflect between counts 2 and 3 and nevertheless resumed his assault on B.R. At trial, B.R. testified that when Gomez committed count 2 (i.e., insertion of his penis in her anus), she stood up immediately, turned around, and faced him., She sternly stated: "You asked me what I am afraid of, and I have never done that and I don't want to, please don't do that to me." Implicitly acknowledging her objection to anal sex, Gomez replied, "okay," and then told her to bend over the bed again. She turned around and bent over the bed. He inserted his penis into her vagina a second time (count 3). That testimony shows that not only did Gomez change sexual positions with B.R. between counts 2 and 3, she stood up, turned around, and expressed her objection to anal sex before he acknowledged her objection and then told her to bend over the bed again before he resumed his sexual assault on her by inserting his penis into her vagina. That break in events, communication between them, and two changes in B.R.'s position was sufficient for the trial court to find he momentarily paused or otherwise had a reasonable opportunity to reflect on his actions and nevertheless resumed his sexually assaultive behavior within the meaning of section 667.6, subdivision (d).

Because there is sufficient evidence to support the trial court's findings that Gomez had reasonable opportunities to reflect between the offenses and nevertheless resumed his assault on B.R., we conclude the court properly imposed consecutive terms on counts 1, 2, and 3 pursuant to section 667.6, subdivision (d). None of the cases cited by Gomez are apposite to this case or otherwise persuade us to reach a contrary conclusion.¹¹ (See, e.g., People v. Corona (1988) 206 Cal.App.3d 13; People v. Pena (1992) 7 Cal.App.4th 1294.) Finally, because we conclude the trial court did not err by finding Gomez had reasonable opportunities to reflect and yet resumed his assault, we reject Gomez's assertion that the court's purported erroneous finding under section 667.6, subdivision (d), violated his federal constitutional right to due process.

11 Because we conclude the trial court properly imposed mandatory consecutive terms on counts 1, 2, and 3 pursuant to section 667.6, subdivision (d), we need not, and do not, address the question of whether the court erred by exercising its discretion and imposing consecutive terms under section 667.6, subdivision (c).

VI

Cruel and/or Unusual Punishment

Gomez contends his sentence of over 81 years in prison constitutes cruel and/or unusual punishment in violation of the United States and California Constitutions.

A

The trial court sentenced Gomez to an aggregate indeterminate term of 75 years to life, consisting of consecutive indeterminate terms of 25 years to life for each of counts 1, 2, and 3, and an aggregate determinate term of six years and four months, consisting of four years for count 6, with a one-year enhancement for the personal knife use allegation, and an additional one-year, four-month term for count 7.

B

The People assert, and we agree, that Gomez forfeited any challenge to his sentence based on a cruel and/or unusual punishment claim by not objecting to his sentence on that ground below. (People v. Russell (2010) 187 Cal.App.4th 981, 993.) Gomez nevertheless argues we should address the merits of his claim because it involves his constitutional rights or because he was denied his right to effective assistance of counsel. Because, as we discuss below, Gomez's sentence did not constitute cruel and/or unusual punishment under either the United States Constitution or California Constitution, we reject that claim both on its merits and on his alternative argument that he was denied effective assistance of counsel. On that latter argument, he has not carried his burden on appeal to show that he was prejudiced by his counsel's purported deficient performance (i.e., he has not shown it is reasonably probable he would have obtained a more favorable sentence had his counsel timely objected on that ground). (Strickland v. Washington, supra, 466 U.S. at pp. 693-694; People v. Ledesma, supra, 43 Cal.3d at pp. 217-218.)

C

The Eighth Amendment of the United States Constitution, which applies to states under the due process clause of the Fourteenth Amendment, prohibits cruel and unusual punishments. (Graham v. Florida (2010) 560 U.S. 48, 58 (Graham).) In general, punishment is cruel and unusual under the Eighth Amendment if it is "grossly disproportionate" to the crime committed. (Id. at p. 60.) In considering a proportionality challenge to a defendant's sentence, a court should consider "all of the circumstances of the case to determine whether the sentence is unconstitutionally excessive." (Id. at p. 59.) The court begins "by comparing the gravity of the offense and the severity of the sentence." (Id. at p. 60.) " 'In the rare case in which [this] threshold comparison . . . leads to an inference of gross disproportionality' the court should then compare the defendant's sentence with the sentences received by other offenders in the same jurisdiction and with the sentences imposed for the same crime in other jurisdictions. [Citation.] If this comparative analysis 'validate[s] an initial judgment that [the] sentence is grossly disproportionate,' the sentence is cruel and unusual. [Citation.]" (Ibid.)

Comparing the gravity of Gomez's offenses against the severity of his sentence, we conclude he has not met the initial threshold showing of gross disproportionality under the Eighth Amendment. (Graham, supra, 560 U.S. at p. 60.) His offenses included violence or other force in committing rape and sodomy. He broke into B.R.'s apartment during the night while she was sleeping, held a knife to her throat, and repeatedly sexually assaulted her. For each of his three violent or forcible sex offenses, the trial court imposed consecutive terms of 25 years to life in prison. In cases not involving violence or sexual offenses, the United States Supreme Court has upheld similar sentences. (See, e.g., Harmelin v. Michigan (1991) 501 U.S. 957, 994-995 [life without the possibility of parole for nonviolent possession of large quantity of cocaine]; Ewing v. California (2003) 538 U.S. 11, 18, 20, 30-31 [25 years to life in prison under Three Strikes law for felony petty theft]; Lockyer v. Andrade (2003) 538 U.S. 63, 68, 77 [two consecutive terms of 25 years to life in prison under Three Strikes law for two counts of petty theft].) If the United States Supreme Court has held lengthy sentences such as those imposed in Harmelin, Ewing, and Andrade were not "grossly disproportionate" to the nonviolent and/or petty theft crimes in those cases, the sentence of three consecutive terms of 25 years to life in prison (i.e., an aggregate of 75 years to life) imposed for Gomez's violent sexual offenses clearly is not grossly disproportionate under the Eighth Amendment. Although Gomez cites his relative youth (i.e., 21 years old) at the time of his offenses and the possibility that his total term of over 81 years in prison may exceed his life expectancy, neither of those circumstances persuades us that his sentence is grossly disproportionate to his offenses or otherwise constitutes cruel and unusual punishment under the Eighth Amendment. None of the cases cited by Gomez are apposite to this case or otherwise persuade us to reach a contrary conclusion. (See, e.g., Graham, supra, 560 U.S. 48 [juvenile nonhomicide offender]; People v. Caballero (2012) 55 Cal.4th 262 [same].)

D

Article I, section 17, of the California Constitution prohibits the infliction of cruel or unusual punishment. Punishment is cruel or unusual under the California Constitution if "it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity." (People v. Dillon (1983) 34 Cal.3d 441, 478; see also In re Lynch (1972) 8 Cal.3d 410, 424 (Lynch).) Lynch analyzed three factors in determining whether a sentence is cruel or unusual under the California Constitution: (1) the nature of the particular offense and offender, with particular regard to the degree of danger which both present to society; (2) a comparison of the challenged penalty with the punishment prescribed in the same jurisdiction for other more serious offenses; and (3) a comparison of the challenged penalty with the punishment prescribed for the same offense in other jurisdictions.¹² (Lynch, supra, 8 Cal.3d at pp. 425-427.) When determining the nature of the offender, courts consider "whether the punishment is grossly disproportionate to the defendant's individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind." (Dillon, at p. 479.)

12 As Gomez notes, the continuing applicability of the second and third Lynch factors is subject to question in light of subsequent pronouncements by the California Supreme Court that the California Constitution does not require intercase proportionality review in order to avoid infliction of cruel or unusual punishment. (See, e.g., People v. Barnett (1998) 17 Cal.4th 1044, 1182; People v. Bradford (1997) 15 Cal.4th 1229, 1384; People v. Crittenden (1994) 9 Cal.4th 83, 156-157.)

Applying Lynch to the circumstances in this case, we first consider the nature of the offenses and the offender in this case, with particular regard to the degree of danger they present to society. (Lynch, supra, 8 Cal.3d at p. 425.) We consider the offenses in the abstract and as committed, evaluating "the totality of the circumstances surrounding the commission of the offense[s] in this case at bar, including such factors as [their] motive, the way [they were] committed, the extent of the defendant's involvement, and consequences of his acts." (Dillon, supra, 34 Cal.3d at p. 479.) With respect to Gomez's offenses, we note that they are serious, both in the abstract and in the circumstances of this case. Gomez was convicted of two counts of forcible rape, one count of forcible sodomy, one count of making a criminal threat, two counts of first degree burglary, and one count of first degree robbery. In the abstract, most of those offenses involve force, violence, or the threat of violence. In the particular circumstances of this case, the forcible rape and forcible sodomy offenses, as committed by Gomez, were particularly egregious. He broke into B.R.'s apartment at night while she was sleeping and, brandishing a knife, repeatedly sexually assaulted her. That his sexual assaults on B.R. were, as Gomez asserts, of "very short duration" and "resulted in very little physical injury" does not diminish their violent and egregious nature. We also note that his offenses for which he was sentenced did not involve only one victim, but involved two victims (i.e., B.R. and T.H.).

In considering the nature of the offender, we consider whether the punishment is grossly disproportionate to the offender's individual culpability, as shown by his or her age, prior criminality, personal characteristics, and state of mind. (Dillon, supra, 34 Cal.3d at p. 479.) In this case, Gomez's criminal history of both violent and nonviolent crimes shows he presents a substantial danger to society. At the time of his offenses, he was 21 years old and, as the People assert, should have learned from his prior sexual assault on N.R. that he should not sexually assault women. Furthermore, his criminal conduct has included the sexual assault on N.R., the sexual assaults on B.R., and the burglary of T.H.'s apartment, showing his actions were not an isolated occurrence or aberrant behavior but instead show a pattern of recidivism. Considering the nature of the offenses and offender, we conclude that under current law Gomez's sentence is not shocking or disproportionate to the offenses he committed.

On the second Lynch factor, Gomez notes that his sentence exceeds the sentence of 25 years to life in prison that is imposed for first degree, noncapital murder. Although we do not doubt that first degree murder is a more serious offense than the offenses committed in this case, a sentence is not grossly disproportionate merely because it carries the same sentence as, or a greater sentence than, a more serious crime. The Lynch court noted that a challenged sentence may be suspect if "more serious crimes [are] punished less severely than the offense in question." (Lynch, supra, 8 Cal.3d at p. 426.) Here, Gomez did not receive a sentence greater than that imposed for first degree murder for any of his instant individual offenses. Rather, he received three consecutive terms of 25 years to life in prison for each of the three forcible sexual offenses he committed. Furthermore, a defendant who commits first degree murder may receive a sentence greater than 25 years to life in prison (e.g., death or life in prison without the possibility of parole). Accordingly, Gomez does not show his sentence in this case is grossly disproportionate to the punishment imposed for other offenses.

On the third Lynch factor, Gomez notes that courts in other jurisdictions have stricken as disproportionate similar sentences imposed for the types of offenses he committed (e.g., death sentence or life in prison without the possibility of parole). However, "[t]hat California's punishment scheme is among the most extreme does not compel the conclusion that it is unconstitutionally cruel or unusual. This state constitutional consideration does not require California to march in lockstep with other states in fashioning a penal code. It does not require 'conforming our Penal Code to the "majority rule" or the least common denominator of penalties nationwide.' [Citation.] Otherwise, California could never take the toughest stance against repeat offenders or any other type of criminal conduct." (People v. Martinez, supra, 71 Cal.App.4th at p. 1516; see also People v. Romero (2002) 99 Cal.App.4th 1418, 1433.)

Considering the three Lynch factors in the circumstances of this case, we conclude Gomez's sentence does not shock the conscience or offend fundamental notions of human dignity. (Lynch, supra, 8 Cal.3d at p. 424; cf. People v. Alvarado (2001) 87 Cal.App.4th 178, 199-201 [holding sentence of 15 years to life in prison under One Strike law for rape committed during a burglary was not cruel or unusual under either United States Constitution or California Constitution].) Accordingly, Gomez's sentence of over 81 years to life in prison does not constitute cruel or unusual punishment under the California Constitution.

VII

Consecutive Term for Robbery Conviction

Gomez contends the trial court abused its discretion by imposing a consecutive term for his robbery conviction (count 6). In particular, he argues the court did not state its reasons for imposing that consecutive term.

A

After imposing three consecutive terms of 25 years to life in prison on counts 1, 2, and 3, the court imposed an additional consecutive term of four years for Gomez's conviction on count 6 for his first degree robbery of B.R. (i.e., taking of her phone at knife point) and a one-year enhancement for his personal use of a deadly and dangerous weapon in committing that robbery.

B

Although the court did not state on the record its reasons for imposing a consecutive term for count 6, Gomez's counsel did not timely object on that ground to imposition of that consecutive term. Accordingly, Gomez forfeited his challenge to that part of his sentence on the ground of the court's failure to state its reasons for imposing that consecutive term. (People v. Scott (1994) 9 Cal.4th 331, 352-352.)

Nevertheless, Gomez argues that if he forfeited that challenge because his counsel failed to object on that ground, he was denied his constitutional right to effective assistance of counsel. However, based on our review of the record, we conclude he has not carried his burden on appeal to show the purported deficient performance by his counsel was prejudicial to him (i.e., it is reasonably probable the court would not have imposed a consecutive term for count 6 had his counsel timely and specifically objected to its failure to state its reasons on the record). (Strickland v. Washington, supra, 466 U.S. at pp. 693-694; People v. Ledesma, supra, 43 Cal.3d at pp. 217-218.)

Section 1170, subdivision (c), provides that a sentencing court "shall state the reasons for its sentence choice on the record at the time of sentencing." In particular, a court's decision to impose consecutive sentences is a sentencing choice that requires a statement on the record of the reasons for that choice. (Cal. Rules of Court., rule 4.406(b)(5).¹³) When a defendant is convicted of two or more criminal offenses, the court must decide whether the sentences imposed for those offenses should be served concurrently or consecutively. (People v. Rodriguez (2005) 130 Cal.App.4th 1257, 1262; § 669, subd. (a).) The court has discretion to impose a term to run concurrently or consecutively. (Rodriguez, at p. 1262.) In so doing, the court shall consider the factors set forth in rule 4.425.

13 All further rule references are to the California Rules of Court. --------

Gomez argues that because the trial court already used his knife use to impose terms of 25 years to life for each of counts 1, 2, and 3, the court could not use that knife use again to impose a consecutive term for count 6. He also argues that because the violence he used in committing the forcible sexual assault and robbery offenses was an element of those offenses, that factor could not be used by the court to impose a consecutive term for count 6. He argues that because there were no other aggravating factors that the court could have cited as reasons for imposing a consecutive term for count 6, it necessarily would have been required to impose a concurrent term for count 6 had his counsel timely and specifically objected and, if the court had nevertheless imposed a consecutive term, it would have abused its discretion in so doing.

We reject Gomez's argument that there were no other aggravating factors the trial court could have cited as reasons for imposing a consecutive term for count 6 had his counsel timely and specifically objected to the court's failure to state reasons for that sentencing choice. In sentencing Gomez, the court reviewed and considered the probation report which recommended imposition of a consecutive term for count 6. The probation report listed a number of aggravating factors, including, inter alia, the factors that Gomez was on probation when he committed the instant offenses (rule 4.421(b)(4)), his prior performance on probation was unsatisfactory (rule 4.421(b)(5)), and his prior sustained petitions in juvenile delinquency proceedings were of increasing seriousness (rule 4.421(b)(2)). As the People assert, any one of those aggravating factors would have been adequate to support the court's imposition of a consecutive term for count 6. (People v. Osband (1996) 13 Cal.4th 622, 728-729 ["Only a single aggravating factor is required . . . to impose a consecutive sentence [citation.]".) Because none of three aggravating factors cited above were elements of count 6 (or Gomez's other offenses) or were otherwise used by the court in sentencing him, the court could, and presumably would, have cited one or more of those aggravating factors as reasons for imposing the consecutive term for count 6 had his counsel timely and specifically objected to its failure to state its reasons therefor. Because there is nothing in the record on appeal that affirmatively indicates the court would not have imposed a consecutive term for count 6 had Gomez's counsel timely and specifically objected to its failure to state its reasons, we conclude it is not reasonably probable Gomez would have obtained a more favorable sentence had his counsel so objected. (Strickland v. Washington, supra, 466 U.S. at pp. 693-694; People v. Ledesma, supra, 43 Cal.3d at pp. 217-218; cf. Osband, at p. 729.) Alternatively, the purported deficient performance of Gomez's counsel has not undermined our confidence in the outcome of Gomez's trial. (People v. Williams, supra, 16 Cal.4th at p. 215.)

To the extent Gomez argues the court erred by imposing a consecutive term for count 6 because the mitigating factors outweighed the aggravating factors, he misconstrues and/or misapplies the applicable standard of review. Because a trial court has broad sentencing discretion, an appellant must show its sentencing decision was irrational or arbitrary and, absent such showing, we must presume it has acted to achieve legitimate sentencing objectives. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.) Furthermore, as we concluded above, Gomez has not persuaded us it is reasonably probable the court would have imposed a concurrent term for count 6 had his counsel timely objected to its imposition of that consecutive term for failure to state its reasons in support thereof.

VIII

Imposition of One-Year Enhancement for Knife Use in Committing Robbery

Gomez contends the trial court erred by imposing a one-year sentence enhancement for his use of a knife in committing his first degree robbery offense (count 6). He argues that because the court had used his knife use in imposing terms of 25 years to life in prison under the One Strike law for counts 1, 2, and 3, section 667.61, subdivision (f), precluded it from using his knife use again to impose a one-year enhancement in connection with his robbery conviction (count 6).

A

The trial court convicted Gomez on counts 1, 2, and 3 for his forcible sexual assaults on B.R. and found true allegations that he committed those offenses during a burglary (§ 667.61, subd. (e)(3)) and used a deadly and dangerous weapon within the meaning of section 667.61, subdivision (e)(4), and section 12022.3, subdivision (a). The court also convicted him on count 6 of first degree robbery and found true the allegation that in committing that offense he personally used a deadly and dangerous weapon (§ 12022, subd. (b)(1)).

The court sentenced Gomez to 25 years to life on each of counts 1, 2, and 3 pursuant to the One Strike law (§ 667.61) and struck the section 12022.3 weapon use enhancements related to counts 1, 2, and 3. It imposed a four-year term for count 6 and a one-year enhancement related to that offense pursuant to section 12022, subdivision (b)(1).

B

Section 12022, subdivision (b)(1), provides for an additional and consecutive one-year sentence enhancement when a defendant personally uses a deadly or dangerous weapon in committing a felony. When the underlying felony is a specified sexual offense (e.g., rape or sodomy), section 12022.3 provides for an additional and consecutive enhancement of three, four, or ten years if the defendant uses a firearm or deadly weapon in committing that offense.

Section 667.61, known as the One Strike law, sets forth an alternative and harsher sentencing scheme for certain sex offenses. (People v. Anderson (2009) 47 Cal.4th 92, 102.) In particular, a defendant who is convicted of a sexual offense listed in section 667.61, subdivision (c), must be punished by a term of 15 years to life in prison if one of the circumstances in section 667.61, subdivision (e), is found true or by a term of 25 years to life in prison if two or more of the circumstances in section 667.61, subdivision (e), or one or more of the circumstances in section 667.61, subdivision (d), is found true. (§ 667.61, subds. (a), (b).) The circumstances listed in section 667.61, subdivision (e), include the two circumstances found true by the trial court regarding each of counts 1, 2, and 3 in this case (i.e., commission of the underlying offense during the commission of a burglary and the personal use of a deadly or dangerous weapon in the commission of the underlying offense). (§ 667.61, subd. (e)(2), (4).)

Section 667.61, subdivision (f), provides: "If only the minimum number of circumstances specified in subdivision (d) or (e) that are required for the punishment provided in subdivision (a) . . . to apply have been pled and proved, that circumstance or circumstances shall be used as the basis for imposing the term provided in subdivision (a) . . . , rather than being used to impose the punishment authorized under any other provision of law, unless another provision of law provides for a greater penalty . . . ."

C

We conclude the trial court did not err by imposing a section 12022, subdivision (b)(1), one-year enhancement for his use of a deadly or dangerous weapon (i.e., a knife) in committing the robbery against B.R. (count 6). Gomez's burglary and knife use were used as circumstances under section 667.61, subdivision (d), to impose terms of 25 years to life in prison for counts 1, 2, and 3 under the One Strike law. (§ 667.61, subd. (a).) Because the court used those two circumstances to impose those terms for counts 1, 2, and 3, it could not use those circumstances to impose any other enhancements or punishments for counts 1, 2, or 3. (§ 667.61, subd. (f); People v. Mancebo (2002) 27 Cal.4th 735, 738, 754 [§ 667.61, subd. (f), bars imposition of § 12022, subd. (a), gun use enhancement if that gun use was one of two circumstances used to impose term of 25 years to life for forcible rape and forcible sodomy offenses under One Strike law]; People v. Rodriguez (2012) 207 Cal.App.4th 204, 214-215 [same re knife use circumstance under One Strike law].) Alternatively stated, the court could not use Gomez's knife use as a circumstance to impose terms of 25 years to life for each of counts 1, 2, and 3, as well as to impose additional three, four, or ten year enhancements under section 12022.3, subdivision (a), for counts 1, 2, and 3. (§ 667.61, subd. (f).) Accordingly, the court correctly struck the section 12022.3, subdivision (a), enhancements for counts 1, 2, and 3.

However, contrary to Gomez's assertion, the fact that section 667.61, subdivision (f), precluded the imposition of an enhancement or other punishment for his knife use in committing counts 1, 2, and 3, does not mean that statute precluded the imposition of an enhancement for his knife use in committing another offense (i.e., count 6). The language of section 667.61, subdivision (f), and other provisions of the One Strike law does not prohibit the imposition of weapon use or other enhancements for offenses that are not listed in the One Strike law. Furthermore, Gomez has not cited, nor are we aware of, any case holding that section 667.61, subdivision (f), precludes the imposition of such enhancements for non-One Strike offenses. Accordingly, we conclude the court correctly imposed a section 12022, subdivision (b)(1), one-year enhancement for his use of a knife in committing the robbery against B.R. (count 6).

IX

Cumulative Prejudice

Gomez contends the cumulative prejudicial effect of all the trial court's errors requires reversal of the judgment. However, because we conclude the trial court did not err as he asserts, there can be no cumulative prejudicial effect. Assuming arguendo one or more errors occurred, we nevertheless would conclude their cumulative effect was not prejudicial under any applicable standard of prejudice.

DISPOSITION

The judgment is affirmed.

BENKE, J. WE CONCUR: McCONNELL, P. J. DATO, J.