Opinion
B226201
09-20-2011
THE PEOPLE, Plaintiff and Respondent, v. DANIEL E. HARVEY, Defendant and Appellant.
Koryn & Koryn, Daniel G. Koryn, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, Baine P. Kerr, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. TA108843)
APPEAL from a judgment of the Superior Court of Los Angeles County, Susan M. Speer, Judge. Affirmed.
Koryn & Koryn, Daniel G. Koryn, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, Baine P. Kerr, Deputy Attorney General, for Plaintiff and Respondent.
INTRODUCTION
Defendant and appellant Daniel E. Harvey (defendant) was convicted of three counts of oral copulation or sexual penetration of a child under 10 years old (Pen. Code, § 288.7, subd. (b) ). On appeal, defendant contends that trial court erred in admitting evidence of his polygraph examination, instructing the jury under CALCRIM No. 330 thereby improperly bolstering the credibility of the minor victim in violation of defendant's constitutional rights, and improperly imposing consecutive sentences. We affirm the judgment.
All statutory citations are to the Penal Code unless otherwise noted.
BACKGROUND
A. Factual Background
Defendant was the stepfather of K. M., who was born in May 2000. K.M. testified that she had lived with defendant, her mother, and defendant's daughter K. When K.M.'s mother became sick, defendant became K.M.'s primary caretaker.
K.M. testified that defendant sexually molested her on four occasions when she was approximately eight years old. On each of those occasions, defendant took K.M. to their storage unit and placed his penis in her mouth. Defendant told K.M. that she should not tell anyone what happened.
K.M. testified that she told her grandmother that defendant had hurt K.M. K.M. had waited to tell anyone about the assaults because she was uncomfortable and felt she would be hurt again. K.M. made a series of drawings depicting the sexual assaults by defendant.
Dianna M., K.M.'s grandmother, testified that in September 2009, she and K.M. were watching a television show that depicted a woman being assaulted at a warehouse. K.M. said, "That reminds me of the storage unit," and K.M. briefly described what happened with defendant. Dianna M. was flabbergasted. The next day, Dianna M. went on a four-day business trip, and when she returned she called child protective services and made a report.
Long Beach Police Department officer Thomas Robles testified that he investigated a reported sexual molestation of K.M. Officer Robles spoke with K.M. for about an hour, and as K.M. described what occurred between her and defendant she drew pictures of the incidents.
Los Angeles County Sheriff's Department Deputy Michael Wolfe testified that he was a trained polygraph examiner and that he interviewed defendant and administered a polygraph test. During the interview, including during the polygraph test, defendant initially denied molesting K.M. Deputy Wolfe told defendant that he did not pass the polygraph examination, and Los Angeles County Sheriff's Department Deputy Michael Silva testified that he joined in the interview between Deputy Wolfe and defendant. Defendant told the deputies that when he was a child he had been sexually molested by his father. Defendant eventually confessed to orally copulating K.M. A videotape of defendant's interview by Deputies Wolfe and Silva was shown to the jury, and the jury was provided with the written transcript to help them follow along.
Defendant testified that he never placed his penis in K.M.'s mouth. According to defendant, he confessed to the deputies because he "felt backed into a corner" and Deputy Wolfe "wouldn't take no for an answer."
B. Procedural Background
The District Attorney of Los Angeles County filed an information charging defendant with four counts of oral copulation or sexual penetration of a child under 10 years old in violation of section 288.7, subdivision (b) (counts 1-4), and one count of continuous sexual abuse in violation of section 288.5, subdivision (a) (count 5). Count 5 was dismissed pursuant to the prosecution's motion under section 1385.
Following a jury trial, defendant was convicted of counts 1-3, and a mistrial was declared as to count 4. The trial court sentenced defendant to a term of 30 years to life in state prison, consisting of consecutive terms of 15 years to life on counts 1 and 2, and an additional 15 years to life as to count 3 that was to run concurrently with the sentences imposed as to counts 1 and 2.
DISCUSSION
A. Admission of Evidence of Defendant's Polygraph Examination
Defendant contends that trial court erred in admitting evidence of his polygraph examination. We disagree.
i. Relevant Proceedings
Defendant filed a motion to have his confession interview be heard by the jury in its entirety. At the June 23, 2010, hearing on defendant's motion, defendant's counsel argued that, "There are two statements made by the defendant. The second one, this was as a result of a polygraph—an alleged polygraph examination. [¶] I ask for one thing, that the court admonish the jurors once any part of this statement is played, that they're not going to consider—not to consider the polygraph part of it because generally polygraph information is inadmissible. [¶] Secondly, I ask that if any part be played, the entirety—it be played in its entirety." The prosecution stated, "I just want to understand for clarity sake. [¶] Defense is asking that the entire tape including the polygraph— because the polygraph is given in the middle of this. So is defense asking that this whole entire 108-page transcript and the video that it's taken from be played?" Defendant's counsel responded, "Yes." The trial court then inquired, "Including the polygraph or excluding the polygraph?" to which defendant's counsel responded that, "They can exclude the polygraph. I'm sorry." Defendant's counsel argued that defendant's statement made during his confession interview that he was molested as a child should be included in the confession interview if it is provided to the jury, but defendant's counsel did not argue that the statements referencing the polygraph should be excluded. The trial court continued defendant's motion.
On June 24, 2010, the trial court stated that it agreed with defendant that he "has the right to introduce the entire confession in order to show that it was not credibly and reliably obtained." The trial court and counsel had the following exchange: The court: "[t]he problem is how do we get around the polygraph? [¶] [The prosecution]: That's the problem. [¶] There's so many references to it in there that unless counsel just wants to agree we can admonish the jury that they're not to consider it, I don't know how else to do it. [¶] [The defendant's counsel]: Well, if the court is going to—without waiving my objection to, you know, the polygraph if the court feels that it's not going to allow any portion of it because it is an alleged polygraph, I think the court can give a limiting instruction about you are not to the [sic]consider the polygraph itself, you know, et cetera, et cetera. . . . [¶] You know, the only way it can be admitted is with a strong limiting instruction. [The prosecution]: Your Honor, I don't think counsel can have it both ways. He can't object to the admittance of the polygraph and then say but we're going to play the whole tape. . . . [¶] So I don't think he can put an objection on the record of them [sic] hearing about the polygraph and saying I want to hear the whole tape. I think that leaves us open to appeal that they have heard about the polygraph. [¶] The court: I think he can stipulate that the jurors will hear it in the interests of getting the entire confession played. I think it's risky. But if you feel that's in the best interests of your client to admit the entire tape, videotape and audiotape with no redactions other than that the only option would be to redact it to eliminate every reference to the polygraph which I know is an arduous task because this interview [is] over three hours."
The prosecution argued that it could introduce into evidence defendant's confession statement only, and it was defendant's responsibility to introduce any additional portions of the taped confession he deemed to be appropriate. Defendant's counsel responded that, "I am of the opinion that if any of it—if [the prosecution] wants to use it, she has to present—she has to present it. So it would fall to the people if they want to use it. . . . [¶] So I think if [the prosecution] want[s] to produce part of it, [she has] to do it all. That's what I've always said." The trial court also stated that defendant's counsel was "willing to stipulate . . . that the entirety of the tape would come in and we'd give a limiting instruction to the jurors not to consider anything pertaining to the polygraph."
On June 28, 2010, the trial court ruled that if defendant intended to argue that the sole reason that his confession was not reliably obtained was because the interviewer was "playing on [defendant's] emotions" based on defendant's statement that he had been molested as a child, the entire tape, including the references to the polygraph test, must be admitted. Defendant's counsel did not object to the trial court's ruling.
The trial court thereafter stated to counsel outside the presence of the jury that, "The People have sought to introduce a videotaped alleged confession of the defendant with a polygraph examiner and then later a detective. . . . The problem became that the defense requested that the entire videotaped interview be introduced into evidence as he's attempting to show that it was not reliable or not credible and not on the issue of voluntariness, which has already been decided as a legal issue by the court. [¶] The court gave the defense two options. I ruled in favor of the defense the entire interview should come in on that issue. . . . [¶] . . . [T]he options were to either redact the videotape and remove any portions that pertain to the taking of the polygraph examination or the defendant's results or any reference to the polygraph whatsoever. [¶] However, if the defense elected to do that, I would be precluding the defense from limiting their argument that the defendant only made his incriminating statements as a result of the emotional pressure or the softening-up process done by the examiner with the defendant relying on his having been a victim of child molestation and so forth. [¶] However, I think the People are entitled to argue that the defense—or the defendant made his admissions also or exclusively to the fact that the examiner told the defendant that he did not pass the polygraph and he was untruthful on the issue of whether or not he molested the victim in this case. [¶] The actual results of the polygraph are not admitted on the videotape. It's only the examiner telling the defendant what the results are. Whether those results are actually correct, true or false, I don't know. But that's what the videotape states. [¶] And I want to make this clear, [defendant's counsel], you elected to put in the entire unredacted videotape and transcript so that you could argue that the defendant was softened up or emotionally induced to make his admission and not precluded from arguing that is the sole reason that he made the incriminating statements?"
Defendant's counsel replied to the court, "That's correct, Your Honor. I feel that, you know, the central part of this case really is the alleged confession. [¶] So I made a tactical, that it's best for the jury to see the entire confession in its—you know, all three hours of it and make their decision from there. [¶] I understand that the polygraph is not admissible. I understand it is prejudicial. But, honestly, I see no other way to challenge the confession except but to say the totality of the circumstances make it unreliable and the only way to do that is for the jury to see the entire confession. I understand it's risky, but that's where we are." The parties "stipulate[d] that the entire tape can be played including the polygraph pursuant to Evidence Code 351.1 and that a limiting instruction will be given."
Thereafter, as previously noted, a videotape of defendant's interview by Deputies Wolfe and Silva was shown to the jury. Prior to the videotape being played, the trial court gave the jury a limiting instruction stating inter alia that, "On the videotape you will hear statements that refer to polygraph examinations. Evidence of polygraph examinations are not admissible in criminal cases by law. Despite this law, you will hear the conversation on the videotape concerning a polygraph examination. [¶] These portions were included to allow you to hear the entire interview without redaction. [¶] However, you may not consider these statements to prove as true any results of a polygraph examination, the opinion of a polygraph examiner, or any reference to an offer to take or failure to take a polygraph examination. [¶] Do not discuss these issues or let them enter into your deliberations or affect your verdicts in any way. [¶] However, you may consider statements pertaining to the results of a polygraph examination only as they may impart information to the person hearing these results and the effect, if any, on the state of mind of the listener. [¶] You may not consider this evidence for any other purpose."
ii. Analysis
Evidence Code section 351.1, subdivision (a) provides, "(a) Notwithstanding any other provision of law, the results of a polygraph examination, the opinion of a polygraph examiner, or any reference to an offer to take, failure to take, or taking of a polygraph examination, shall not be admitted into evidence in any criminal proceeding . . . unless all parties stipulate to the admission of such results." "It has long been established that submission to a polygraph test by a qualified examiner and admission in evidence of the results are proper subjects for stipulation [citations] even though such evidence is not otherwise admissible [citation]." (People v. Reeder (1976) 65 Cal.App.3d 235, 239.) Defendant "stipulate[d] that the entire tape [of the interview] can be played including the polygraph pursuant to Evidence Code 351.1 and that a limiting instruction will be given." The polygraph evidence was therefore admissible.
Defendant argues that contrary to People v. Lee (2002) 95 Cal.App.4th 772, 791, which held that "there is no 'state of mind' exception to the ban on polygraph evidence," the trial court had ruled that the polygraph evidence was admissible to show his state of mind. Defendant maintains that he therefore "switched tactics" and agreed that the entire portion of the interview should be admitted. We disagree with defendant.
On June 28, 2010, the trial court did not rule that the prosecution could introduce the polygraph evidence to show defendant's state of mind. It ruled that defendant could not argue that his incriminating statements in the interview were made in response to "emotional pressure" by the deputies without allowing the entire interview to be introduced, including the references to defendant taking a polygraph examination. Defendant did not object to that ruling, and prior to that ruling, on June 23, 2010, defendant argued that if the prosecution was going to play a portion of the videotape of the interview for the jury, the entire videotape must be played, including the references to defendant's polygraph examination. During the course of that hearing defendant's counsel stated that the prosecution "can" exclude the references to the polygraph examination.
In addition, on June 24, 2010, the trial court stated that it agreed with defendant that he "has the right to introduce the entire confession in order to show that it was not credibly or reliably obtained." Defendant's counsel stated that, "I think if [the prosecution] want[s] to produce part of [defendant's interview], [she has] to do it all. That's what I've always said." The trial court also stated that defendant's counsel was "willing to stipulate . . . that the entirety of the tape would come in and we'd give a limiting instruction to the jurors not to consider anything pertaining to the polygraph."
Defendant's counsel did not "switch[] tactics" when he stipulated to the admission into evidence of the entire videotape of the interview, including the polygraph evidence. Defendant continued to elect to put in the entire unredacted videotape into evidence to argue defendant's incriminating statement lacked credibility. Defendant's counsel stated that, "I understand that the polygraph is not admissible. I understand it is prejudicial. But, honestly, I see no other way to challenge the confession except but to say the totality of the circumstances make it unreliable and the only way to do that is for the jury to see the entire confession. I understand it's risky, but that's where we are." In effect, defendant stipulated to the admission of reference to the polygraph examination. (See People v. Rich (1988) 45 Cal.3d 1036, 1092-1093; see also People v. Russell (2010) 50 Cal.4th 1228, 1250 [invited error].)
B. CALCRIM No. 330
Defendant contends that the trial court erred by instructing the jury with CALCRIM No. 330. He argues that the instruction violated his constitutional rights by lessening the prosecution's burden of proof, invading the jury's function of assessing witness credibility, and violating his right to confront witnesses. We uphold this instruction against the constitutional challenge.
The Attorney General asserts that defendant forfeited his right to challenge CALCRIM No. 330 on appeal because he did not object to it at trial. We deal with the argument because defendant's contentions address the substantial rights of an accused. (§ 1259; People v. Brown (2003) 31 Cal.4th 518, 539, fn. 7.)
CALCRIM No. 330 provides: "You have heard testimony from a child who is age 10 or younger. As with any other witness, you must decide whether the child gave truthful and accurate testimony. [¶] In evaluating the child's testimony, you should consider all of the factors surrounding that testimony, including the child's age and level of cognitive development. [¶] When you evaluate the child's cognitive development, consider the child's ability to perceive, understand, remember, and communicate. [¶] While a child and an adult witness may behave differently, that difference does not mean that one is any more or less believable than the other. You should not discount or distrust the testimony of a witness just because he or she is a child."
CALCRIM No. 330 derives from section 1127f, which mandates giving the instruction whenever a child 10 years of age or younger testifies and a party requests it. Section 1127f adopts "the modern view regarding the credibility of child witnesses" that "a child's testimony cannot be deemed insubstantial merely because of his or her youth." (People v. Jones (1990) 51 Cal.3d 294, 315.)
As defendant concedes, several cases have rejected the same constitutional challenges defendant makes here to CALCRIM No. 330's predecessor, CALJIC No. 2.20.1. (People v. McCoy (2005) 133 Cal.App.4th 974; People v. Gilbert (1992) 5 Cal.App.4th 1372; People v. Jones (1992) 10 Cal.App.4th 1566 and People v. Harlan (1990) 222 Cal.App.3d 439.) People v. McCoy, supra, 133 Cal.App.4th 974 summarized the holdings of the three later cases: "Two of those cases arise from the Fourth Appellate District, Division Two. In the first of those cases, People v. Harlan [, supra,]222 Cal.App.3d 439 . . . , the court held that the instruction neither excessively inflates a child's testimony nor impermissibly usurps the jury's role as arbiter of witness credibility nor violates the accused's right to confront a child witness nor 'require[s] the jury to draw any particular inferences from a child's cognitive ability, age and performance as a witness. Rather, it instructs the jury to consider such factors in evaluating a child's testimony.' (Id. at pp. 455-457.) In the second of those cases, People v. Jones [, supra,]10 Cal.App.4th 1566. . . , the court held that the instruction 'presupposes that the jury must make a determination of credibility, but only after considering all the factors related to a child's testimony, including his [or her] demeanor, i.e., how he or she testifies on the stand,' all without '"foreclos[ing] independent jury consideration of the credibility of a child witness."' (Id. at pp. 1572, 1574.) A case from the Sixth Appellate District held that CALJIC No. 2.20.1 neither '"lessen[s] the government's burden of proof'" nor '"instructs the jury to unduly inflate the testimony of a child witness"' (People v. Gilbert [, supra,]5 Cal.App.4th [at p.] 1393. . . [superseded by statute on other grounds as stated in People v. Levesque (1995) 35 Cal. App. 4th 530, 536-537]: 'The instruction tells the jury not to make its credibility determinations solely on the basis of the child's "age and level of cognitive development," but at the same time invites the jury to take these and all other factors surrounding the child's testimony into account. The instruction provides sound and rational guidance to the jury in assessing the credibility of a class of witnesses as to whom "'traditional assumptions'" may previously have biased the factfinding process. Obviously a criminal defendant is entitled to fairness, but just as obviously he or she cannot complain of an instruction the necessary effect of which is to increase the likelihood of a fair result.' (Ibid.)" (People v. McCoy, supra, 133 Cal.App.4th at p. 979.) The court in McCoy also stated that, "In express reliance on the holdings in Harlan, Jones, and Gilbert alike, we squarely reject [the defendant's] constitutional challenges to CALJIC No. 2.20.1." (Id. at p. 980.)
The language of CALJIC No. 2.20.1 is substantially the same as in CALCRIM No. 330. CALJIC No. 2.20.1 provided that, "In evaluating the testimony of a child [ten years of age or younger] you should consider all of the factors surrounding the child's testimony, including the age of the child and any evidence regarding the child's level of cognitive development. A child, because of age and level of cognitive development, may perform differently than an adult as a witness, but that does not mean that a child is any more or less believable than an adult. You should not discount or distrust the testimony of a child solely because he or she is a child. [¶] "'Cognitive' means the child's ability to perceive, to understand, to remember, and to communicate any matter about which the child has knowledge."
Defendant contends that the court decisions rejecting the constitutional challenges to CALJIC No. 2.20.1 "were wrongly decided." Defendant argues that CALCRIM 330 "suggests that jurors not consider a child witness's demeanor and manner of expression, . . . and compels them to ignore their own experience interpreting children's non-verbal cues and behavior. Defendant is incorrect, and we find the holdings of People v. McCoy, supra, 133 Cal.App.4th 974; People v. Gilbert, supra, 5 Cal.App.4th 1372; People v. Jones, supra, 10 Cal.App.4th 1566 and People v. Harlan, supra, 222 Cal.App.3d 439, 455-456 persuasive.
CALCRIM 330 expressly provides that the jury "should consider all of the factors surrounding that testimony," are to "consider the child's ability to perceive, understand, remember, and communicate." It advises that the child witness's testimony should not be discounted "merely because" the witness is a child who may behave differently from an adult. CALCRIM 330 does not, as defendant contends, "require jurors to ignore a child witness' limited cognitive ability and 'different[]' performance in accessing credibility." Accordingly, we reject defendant's constitutional challenge to CALCRIM No. 330.
C. Consecutive Sentence
Defendant contends that the trial court erroneously failed to explain why it imposed consecutive sentences and abused its discretion. The Attorney General argues that defendant forfeited his claims by failing to object in the trial court, and in any event the claims are meritless. Defendant contends that if his claims were forfeited, he received ineffective assistance of counsel. We hold that defendant forfeited his claims, he did not establish that he received ineffective assistance of counsel, and in any event defendant's claims lack merit.
i. Standard of Review
"In reviewing [a trial court's sentencing choice] for abuse of discretion, we are guided by two fundamental precepts. First, '"[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review."' [Citations.] Second, a '"decision will not be reversed merely because reasonable people might disagree. 'An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.'"' [Citations.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (People v. Carmony (2004) 33 Cal.4th 367, 376-377.)
ii. Relevant Proceedings
In determining that the term imposed as to count 3 was to run concurrently with the sentences imposed as to counts 1 and 2, the trial court stated: "I'm, a little troubled with the fact that [defendant] is still denying these allegations. [¶] I'm troubled by this case. . . . I'm deeply troubled by [defendant's] refusal to admit the allegations. The evidence was extremely clear. The victim testified in a very clear, convincing way. [Defendant] copped out to the police on videotape. There is no doubt in my mind that [defendant] committed all four counts, but fortunately for [defendant] the jurors hung on count four. For what reason I cannot fathom. [¶] The court has chosen to run two counts consecutive and one count concurrent for the following reasons. The victim was particularly vulnerable at ages eight or nine. She was the defendant's stepdaughter and in fact her primary caregiver. Her mother apparently was a drug addict and not available to care for the child. The child lived with the defendant and his mother. The victim's biological father had given up all parental rights when the victim was a very young child. So the defendant was the only father figure that the victim knew. The defendant had been acting as the victim's father from approximately age three on until the crimes occurred. The defendant violated this position of trust to exploit this victim sexually even though the victim loved the defendant and testified that she still did. Each of the three counts of oral copulation occurred on separate occasions. [¶] In mitigation the defendant has no prior record as an adult or juvenile. The defendant's score on the static 99 indicates a low degree of risk for reoffending. There was no force or violence used. Defendant confessed to police, but then lied under oath at trial denying these allegations as he has again done here today. All convictions were by a jury verdict. The court finds that these factors in aggravation outweigh the factors in mitigation and justify the imposition of two consecutive terms."
iii. Analysis
In People v. Gonzalez (2003) 31 Cal.4th 745, 751, the Supreme Court explained the forfeiture rule in the context of discretionary sentencing decisions of the trial court as follows: "In [People v.] Scott [(1994) 9 Cal.4th 331], this court prospectively announced a new rule: A party in a criminal case may not, on appeal, raise 'claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices' if the party did not object to the sentence at trial. (Scott, supra, 9 Cal.4th at p. 353.) The rule applies to 'cases in which the stated reasons allegedly do not apply to the particular case, and cases in which the court purportedly erred because it double-counted a particular sentencing factor, misweighed the various factors, or failed to state any reasons or give a sufficient number of valid reasons' (ibid.),but the rule does not apply when the sentence is legally unauthorized (id. at p. 354)." We agree with the Attorney General that defendant forfeited his claims because he failed to object to the court's imposition of consecutive sentences. Accordingly, we consider defendant's claim that he received ineffective assistance of counsel.
Defendant has the burden of proving ineffective assistance of counsel. (People v. Pope (1979) 23 Cal.3d 412, 425.) In order to establish such a claim, defendant must show that his counsel's performance fell below an objective standard of reasonableness, and that, but for counsel's error, a different result would have been reasonably probable. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland v. Washington, supra, 466 U.S. at p. 694.)
When a defendant makes an ineffective assistance claim on appeal, we look to see if the record contains any explanation for the challenged aspects of the representation. If the record is silent, then the contention must be rejected "'unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation [citation].'" (People v. Haskett (1990) 52 Cal.3d 210, 248.)
The record does not reflect why defendant's trial counsel failed to object to the court's imposition of consecutive sentences, or that he was asked for an explanation and failed to provide one. And, as the Attorney General asserts, there could be a satisfactory explanation for counsel not asserting objections because, "any such objection would only draw more attention to the heinous nature of [defendant's] crimes and his failure to express remorse, and because the trial court sentenced [defendant] to a concurrent term as to count 3, [and] an objection would endanger the leniency shown by the court." We generally do not determine the claim of ineffective assistance of counsel on appeal because it is a claim more appropriately raised by a petition for a writ of habeas corpus. (People v. Tafoya (2007) 42 Cal.4th 147, 196, fn. 12 ["a claim of ineffective assistance of counsel is more appropriately raised in a petition for writ of habeas corpus [citation], where 'relevant facts and circumstances not reflected in the record on appeal, such as counsel's reasons for pursuing or not pursuing a particular trial strategy, can be brought to light to inform the two-pronged inquiry of whether counsel's "representation fell below an objective standard of reasonableness," and whether "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."'"].)
In any event, we reject defendant's contentions that the trial court erroneously failed to explain why it imposed consecutive sentences and abused its discretion. A trial court has broad discretion in weighing aggravating and mitigating circumstances and selecting an appropriate sentence. (People v. Superior Court (Alvarez)(1997) 14 Cal.4th 968, 977-978.) A single aggravating factor will support an aggravated sentence. (People v. Osband (1996) 13 Cal.4th 622, 728; People v. Quintanilla (2009) 170 Cal.App.4th 406, 413.) Here, the trial court found three aggravating circumstances that were in support of the imposition of consecutive sentences. It found K.M. was vulnerable (Cal. Rules of Court, rule 4.421, subd. (a)(3)), defendant violated his position of trust with K.M. (Cal. Rules of Court, rule 4.421, subd. (a)(11)), and defendant committed perjury (Cal. Rules of Court, rule 4.408, subd. (a)).
With certain exceptions not applicable here, "[a]ny circumstance in aggravation or mitigation may be considered in deciding whether to impose consecutive rather than concurrent sentences. . . ." (Cal. Rules of Court, rule 4.425, subd. (b)).
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Defendant contends that the trial court erred by failing to make findings on the record of the elements of perjury. "[W]hen imposing an aggravated sentence because of perjury at trial, the sentencing judge is constitutionally required to make on-the-record findings encompassing all the elements of a perjury violation. In California, those elements are a willful statement, under oath, of any material matter which the witness knows to be false. [Citation.]" (People v. Howard (1993) 17 Cal.App.4th 999, 1004.) Contrary to defendant's contention, the trial court made the required findings. It found that defendant lied under oath at trial by denying and refusing to admit the allegations. It also found that not only had defendant confessed to police but the evidence supporting the allegations against him was "extremely clear."
Defendant also contends that the trial court erred because K.M. was not "particularly vulnerable"—vulnerable "'in a special or unusual degree, to an extent greater than in other cases.' [Citation.]" (People v. Levitt (1984) 156 Cal.App.3d 500, 514-515.) Defendant argues that "all sexual assault victims are vulnerable," and cites People v. Dancer (1996) 45 Cal.App.4th 1677, 1693-1694, disapproved on other grounds as stated in People v. Hammon (1997) 15 Cal. 4th 1117, 1123, for the proposition that vulnerability based solely on age is improper since it is an element of defendant's charged offense.
The trial court did not err in finding that K.M. was vulnerable in support of the imposition of consecutive sentences. In addition to stating that K.M. was only eight or nine years old when she was sexually assaulted by defendant, the trial court found that K.M.'s mother apparently was a drug addict and not available to care for K.M., and K.M.'s biological father had given up all parental rights when K.M. was a very young child. K.M.'s vulnerability was "'in a special or unusual degree, to an extent greater than in other cases.' [Citation.]" (People v. Levitt, supra, 156 Cal.App.3d at pp. 514-515.)
Defendant also argues that the trial court erred in finding that defendant violated his position of trust with K.M. because "the crime of orally copulating a child under 10 years old involves a certain amount of trust because minor children are incapable of giving consent to such acts." The trial court's decision was supported by the evidence that defendant was K.M.'s stepfather, the only father figure K.M. knew, and was K.M.'s primary caregiver. The trial court did not err.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
MOSK, J. We concur:
ARMSTRONG, Acting P. J.
KRIEGLER, J.