Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Contra Costa County Super. Ct. No. 050318592
Sepulveda, J.
Defendant was found guilty by jury trial of one count of forcible rape, one count of forcible oral copulation, two counts of attempted forcible rape, and one count of second degree robbery in connection with an early-morning attack on a woman as she walked to catch a bus to work. Jurors also found true an allegation that defendant was armed with a deadly weapon when committing the sex offenses. Defendant was sentenced to 124 years to life. On appeal, he argues that (1) the trial court erred in admitting evidence of a conviction for a prior sex offense, (2) the admission of the evidence violated his due process rights, (3) the trial court’s jury instruction on sex crimes propensity evidence impermissibly diluted the prosecution’s burden of proof, (4) his trial counsel was ineffective for failing to request a pinpoint instruction on after-acquired intent in connection with the robbery charge, (5) there is insufficient evidence to support the weapon enhancement allegation, (6) the trial court inadequately responded to the jury’s questions about the weapon enhancement allegation, and (7) his trial counsel was ineffective for failing to object to the imposition of consecutive sentences. We disagree and affirm.
I.
Factual and Procedural Background
About 5:30 a.m. on September 17, 1999, a 58-year-old woman identified at trial as Jane Doe (the victim) left her home on Creely Avenue in Richmond alone and started walking to a bus stop to go to work. When she was close to 55th Street, defendant “popped up.” He was wearing a mask on his face, and he was carrying an object in his hand that the victim believed to be a knife. The victim testified that the object “wasn’t shin[y] or anything like that,” and it “was wrapped in plastic or black tape or, you know, that electrical tape.” She later described the item to police as a sharp object, possibly wrapped with some tape. Defendant pushed the object against the victim’s lower-right hip area, told her that he did not want to hurt her, and also told her that he wanted to walk with her. Although the victim was not able to specify whether the object defendant held was a knife, she said it “felt kind of sharp” when he pressed it against her body, and she believed it was a knife. She also believed that defendant would stab her if she did not cooperate.
Defendant walked the victim past where she lived and onto a pathway behind an elementary school called “ ‘Cypress Path’ ” and pushed her into the bushes. He kept telling the victim that he did not want to hurt her, and that he did not want her to run. Defendant told the victim to remove one pant leg, and she complied. Defendant unfastened the victim’s bra, put his hand on her breast, and got on top of her. He tried two or three times to penetrate the victim’s vagina with his penis but was unsuccessful. Defendant then told the victim to touch his penis, and he eventually made her put it in her mouth. He also had sexual intercourse with the victim. The victim told defendant during the attack to take her purse and leave her alone, but he kept saying that he did not want to hurt her.
After defendant ejaculated inside the victim, he got up, grabbed the victim’s purse, told her he needed money, and left with the purse. The victim ran to her friend’s house nearby and called police. The officer who responded testified that the victim was “very agitated,” and she was slouched on a couch rocking back and forth, crying. Police took the victim to the hospital for an examination. She was bleeding in her vaginal area, the area burned when she urinated, her knee was hurt from when defendant pushed her down, and she was described by the nurse who examined her as “quite a nervous wreck.”
Defendant testified at trial. He claimed that he met the victim for the first time on the evening of September 16, 1999, in a park near Creely Avenue while smoking crack cocaine, and he and the victim smoked crack together both at the park and at the nearby home of defendant’s sister. Defendant testified that he and the victim went to a room in his sister’s apartment, where they orally copulated each other and had sexual intercourse. They left the home of defendant’s sister early the next morning and returned to the park, where they had sex on a picnic table and then in the bushes, according to defendant. He also testified that the victim gave him $100 to buy cocaine, and that he left with the money but did not return. He denied that he had any weapon when he was with the victim or that he poked her in the side with a sharp object. Defendant’s sister testified that defendant and a woman (who had the same first name as the victim) came to her apartment, smoked crack with her and her husband, and then went to a bedroom together. The victim testified that she did not consent to have sex with defendant, and that she had never used illegal drugs.
DNA testing was conducted on intact sperm found on a vaginal swab taken from the victim, and the analysis was sent to a Department of Justice laboratory in February 2000. At first no matches were found, but a subsequent search in the Department of Justice’s database in 2001 led investigators to defendant.
On September 25, 2003, defendant was charged by information with one count of rape (Pen. Code, § 261, subd. (a)(2)—count one), one count of forcible oral copulation (Pen. Code, § 288a, subd. (c)(2)—count two), two counts of attempted rape (Pen. Code, §§ 261, subd. (a)(2), 664—counts three and four), and one count of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)—count five). As to counts one through four, the information included a weapon enhancement allegation pursuant to Penal Code section 12022.3, subdivision (b). A jury convicted defendant of counts one through five, and it also found the weapon enhancement true.
A grand jury indictment later charged defendant with solicitation to commit murder (Pen. Code, § 653f, subd. (b)) in connection with his alleged solicitation of a cellmate to murder the victim. The two cases were consolidated and tried together. The trial court declared a mistrial on the solicitation charge after the jury was unable to reach a verdict, and the court later granted defendant’s motion to dismiss the charge.
The information included a deadly weapon enhancement pursuant to Penal Code section 12022, subdivision (b)(1) as to count five, but that enhancement was dismissed on defendant’s motion at the close of evidence.
The information also alleged a “one strike” prior conviction allegation (Pen. Code, § 667.61, subd. (a)(2)), three prior strike convictions (Pen. Code, §§ 667, 1170.12), three prior serious felony convictions (Pen. Code, § 667, subd. (a)(1)), and three prior prison convictions (Pen. Code, § 667.5, subd. (b)). Following a court trial, the court found the strike allegations true, two of the prior conviction allegations true, and two of the prison prior allegations true.
As discussed more fully below, defendant was sentenced to 124 years to life. Defendant timely appealed.
II.
Discussion
A. No Abuse of Discretion to Admit Prior Forcible Rape Conviction.
1. Background.
The People filed in limine motions seeking the introduction at trial of evidence of three prior sexual offenses committed by defendant, pursuant to Evidence Code sections 1108 and 1101, subdivision (b). The motions provided brief factual summaries of the offenses: the first involved the sustaining of a juvenile court petition in 1981 for assault with intent to commit rape in connection with a forced sexual contact with a 14-year-old girl; the second involved a 1985 forcible rape conviction (following a guilty plea) in connection with a robbery and rape of a 72-year-old woman (C.A.) in her home; the third involved an alleged sexual assault in 1995 of a 15-year-old girl. Defendant was tried and acquitted of the 1995 assault. The 1985 offense is the only one at issue on appeal.
All statutory references are to the Evidence Code unless otherwise indicated.
Defendant opposed introduction of the 1985 conviction, as well as the two other prior offenses. At the hearing on in limine motions, the People withdrew its offer of evidence of the 1981 juvenile adjudication because the prosecutor had insufficient information about the victim; the trial court stated that it found potential admission of the incident “troubling.” Defendant’s counsel did not make any specific arguments at the hearing regarding the 1985 incident, although he had argued generally (in his opposition to the motion to introduce the uncharged offenses) that the probative value of the evidence was substantially outweighed by its prejudicial effect (§ 352).
As to defendant’s 1985 conviction for forcible rape of C.A., the prosecutor stated that she had certified proof of the prior conviction and “the reports related to that incident.” She noted that the trial court had already ruled that evidence of the conviction was admissible for impeachment purposes in the event that defendant testified, and she argued that evidence of the conviction also should be admitted pursuant to section 1108 to show his propensity to commit sex offenses. According to a brief summary in the People’s in limine motion of the facts underlying the 1985 conviction for forcible rape, defendant forcibly entered C.A.’s home around 5 a.m., choked her, knocked her to the floor, forcibly robbed her of $45 in cash from her purse and jewelry from her drawers, threatened to kill her, and forcibly raped her (making two attempts at penetration before ejaculating on C.A.’s bed). After the assault, defendant retrieved a kitchen paring knife and held it to C.A.’s throat. He then called his mother on C.A.’s telephone before falling asleep at her dining room table, and C.A. ran to a neighbor’s house to call police. Defendant later claimed to have been smoking crack, according to the People’s in limine motion. Defendant was convicted of forcible rape by guilty plea in 1985. C.A. died in 1990. The prosecutor argued that evidence of the 1985 and 1995 incidents also should be admitted under section 1101, subdivision (b), to show that defendant had a common practice of sexually assaulting women.
As to the 1995 incident involving an assault on a 15-year-old girl, the prosecutor indicated that she was prepared to offer live testimony from the victim, and that it was probative on the issue of whether defendant had a pattern of committing sexual offenses (despite the fact that defendant had been acquitted of the charge). Defense counsel argued that it was dissimilar to the charged offense due to the age of the victim, that it would require an undue consumption of time, and that the jury would be tempted to punish defendant in the current case because he “got away with something” in this past offense.
It appears that the parties and the court anticipated that only evidence of the conviction itself would be used to prove defendant’s commission of the uncharged offense.
Citing People v. Falsetta (1999) 21 Cal.4th 903 (Falsetta), the trial court listed the following relevant factors regarding admission of defendant’s prior offenses: their nature; relevance; remoteness; degree of certainty of their commission; the likelihood of confusing, misleading, or distracting the jury; their similarity to the charged offense; the likely prejudicial impact on jurors; the burden of defending against the uncharged offenses; and the availability of less prejudicial alternatives to outright admission. (Id. at p. 917.) With respect to the 1995 assault on a juvenile, the court noted that the victim was a minor and not a stranger to defendant, and defendant was acquitted of the crime. Based on its conclusion that admission of the offense would be more prejudicial than relevant (§ 352) and would require a “mini trial” that would confuse the jury, the court excluded evidence of the 1995 assault.
The trial court did allow admission of the 1985 conviction of the forcible rape of C.A. pursuant to section 1108. The court noted that both the charged and prior crimes involved victims who were “more mature women,” and that both were “stranger rapes.” The court also allowed admission of evidence of this uncharged offense to show common plan and lack of mistake that the victim consented to the sexual encounter with defendant (§ 1101, subd. (b)).
While the defendant originally requested that the trial court instruct on the so-called Mayberry (People v. Mayberry (1975) 15 Cal.3d 143) defense (mistaken belief that the victim consented) pursuant to CALJIC No. 10.65, it appears that he later withdrew that request. The jury was accordingly not instructed on this defense. No discussion of the defendant’s withdrawal of his request for this instruction appears on the record. The trial court stated that it was also admitting the 1985 offense under section 1101, subdivision (b) to show intent, but this was not reflected in the instructions received by the jury. Those instructions provided that the offense could be used (under section 1101, subd. (b)) to show (1) a characteristic method, plan, or scheme, or (2) that defendant did not reasonably and in good faith believe that the victim consented to such conduct. No explanation for these apparent inconsistencies appears in the record.
At trial, the prosecutor read a stipulation (subject to defendant’s Evidence Code objections) that defendant was convicted (on June 11, 1985), of forcible rape of a woman named C.A., who died in 1990. C.A.’s death certificate was admitted into evidence. Although the exhibit is not included in the record on appeal, it is apparent from the prosecutor’s closing argument that the death certificate revealed that C.A. was 72 at the time she was raped. The parties stipulated that C.A.’s death was not related to the rape.
Outside the presence of the jury, the parties explained on the record why a stipulation was read to jurors. The prosecutor explained that she had shown defendant’s counsel “three separate . . . documents” that she had intended to offer as proof of the 1985 conviction. Defendant’s attorney acknowledged that he had been shown “a number of items, including certified copies, records of conviction, . . . so-called [Penal Code section 969b] packet from the Department of Corrections.” He was concerned that the documents showed other convictions that were otherwise inadmissible, and that there was “other information contained in those documents, and in my evaluation is extraneous, irrelevant, and prejudicial. And based on those concerns, I was willing to enter into the stipulation . . . .”
The 1985 conviction was also admitted for purposes of impeaching defendant. Defense counsel below requested that the prosecutor not be permitted to inquire of defendant regarding the underlying facts of that case during her cross-examination of defendant. Defendant’s counsel stressed that one of the reasons he agreed to the stipulation regarding that offense was that “there were matters charged in the complaint in that case which were stricken and not found true and not admitted or plead[ed] to by Mr. Thomas.” The trial court agreed with defendant, and the prosecutor was not permitted to ask questions about the underlying details of the offense. Although this is generally the rule when a prior conviction is being admitted for purposes of impeachment (People v. Allen (1986) 42 Cal.3d 1222, 1268; People v. Hall (1970) 5 Cal.App.3d 116, 126), here the prior conviction had also been admitted under sections 1108 and 1101, subdivision (b). While we do not necessarily agree with the trial court’s ruling limiting the prosecutor’s cross-examination under these circumstances, that issue is not before us. The prosecutor did ask defendant on cross-examination (without objection) whether he had “been with” a 72-year-old woman (C.A.), and defendant acknowledged that he had.
2. Analysis.
Defendant’s sole argument on appeal regarding the uncharged offense is that admission of the “bare fact” of his 1985 conviction for forcible rape denied him of his right to a fair trial, because jurors lacked sufficient information about the conviction to properly determine what weight to give the evidence and to determine whether to draw an inference from it of his propensity to commit violent sex crimes. Although the precise focus of his argument is refined in his reply brief (see discussion, post), in defendant’s opening brief he argues that any probative value of the prior conviction was “slight” and was substantially outweighed by the unfair prejudice of admitting the evidence without any details about the underlying facts of the incident.
Evidence of prior conduct is generally admissible only to show some fact other than the defendant’s disposition to commit criminal conduct, such as common plan and absence of mistake, two of the purposes for which evidence of the 1985 conviction was admitted in this case. (§ 1101, subd. (b).) Section 1108 expands the admissibility of character evidence in sex offense cases, specifically permitting it to be introduced and considered on the issue of a defendant’s disposition or propensity to commit such crimes. (Falsetta, supra, 21 Cal.4th at p. 915.) The statute provides: “In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant’s commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352.” (§ 1108, subd. (a).) Evidence is inadmissible pursuant to section 352 where “ ‘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.’ ” “The trial court’s exercise of discretion in admitting evidence under section 352 will not be disturbed unless the court acted in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.” (People v. Yovanov (1999) 69 Cal.App.4th 392, 406 [no abuse of discretion to admit evidence pursuant to § 1108].)
In performing the balancing test under section 352, to determine the admissibility of evidence proffered under section 1108, the trial court must, “[r]ather than admit or exclude every sex offense a defendant commits . . . consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant’s other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense.” (Falsetta, supra, 21 Cal.4th at p. 917.) Looking to these factors in the present case, the trial court did not abuse its discretion in determining that evidence of the 1985 uncharged offense was admissible under section 1108. First, the 1985 offense was of the same nature as the current offense—both were forcible rapes. The uncharged offense was relevant to prove defendant’s propensity to commit sexual offenses, as it was an enumerated sexual offense under section 1108. Although the uncharged offense occurred in 1985 and the charged offense some 14 years later in 1999, the issue of possible remoteness fades as a potential detriment to its admission. Defendant was sentenced to six years in state prison for the uncharged offense and the probation report’s summary of defendant’s criminal history reflects that he was returned to prison custody several times after his release, both for multiple parole violations and for new offenses. He was certainly not “crime free” during the intervening years, and indeed it appears that he was in custody much of that time. There was no issue regarding the degree of certainty of the commission of the uncharged offense, as defendant was convicted of the crime by guilty plea. There was little chance of confusing, misleading, or distracting the jury, as the evidence of the uncharged offense consisted solely of a stipulation that defendant was convicted of forcibly raping the victim, along with a copy of her death certificate; no “mini-trial” was required in order to determine whether the previous crime in fact was committed. Although there were some factual dissimilarities (including the location of the offense—the prior offense took place in the victim’s home as opposed to outside, the fact that defendant apparently was not wearing a mask in the uncharged offense, that he used a knife in the uncharged crime only after the rape, the precise description of the weapon used, and when in the course of events the robbery occurred), there were sufficient similarities (the “mature”—as the trial court phrased it—age of the victims, the use of a sharp instrument as a weapon, that both were “stranger rapes,” that defendant apparently had difficulty maintaining an erection/penetrating his victims, and that both victims were also robbed) to make the uncharged offense highly probative on the issue of defendant’s propensity to commit forcible sexual offenses. Because defendant was convicted of the previous crime, he did not have the burden of defending against it in this case. (Falsetta at p. 916.) The last factor mentioned in Falsetta, the availability of less prejudicial alternatives to outright admission of the uncharged offense, was resolved by the admission of the fact of defendant’s conviction of the uncharged rape, rather than by admission of evidence of the details of that offense. The facts of the uncharged offense appear to be more inflammatory than the facts of the charged crime, and admission of the conviction alone removed the threat of undue prejudice had the underlying facts been presented to the jury. Moreover, the prejudicial impact of the evidence was reduced in light of his conviction for the previous offense, “ensuring that the jury would not be tempted to convict the defendant simply to punish him for the other offense[].” (Id. at p. 917.)
Falsetta held that section 1108 is constitutionally valid. (Falsetta, supra, 21 Cal.4th at p. 907.) Defendant acknowledges this holding, but nonetheless argues that the statute is unconstitutional in order to preserve the issue for federal court review. We reject defendant’s due process challenge to the statute. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [courts of appeal bound by California Supreme Court decisions].)
The admission of the prior conviction alone was not chosen as the course of action specifically to lessen the prejudicial impact of the evidence of the uncharged offense, but rather was necessitated by the death of the prior victim and the fact that defendant had pleaded guilty to that offense prior to preliminary hearing, so that no former testimony was available to delineate the underlying facts. During a later discussion of the issue of whether the prosecutor could ask defendant questions about the underlying offense when she impeached him with the conviction during his testimony, the prosecutor stated: “I do have a means of bringing forth an officer from 1985. So it’s not a question of can I prove up additional information.” Defendant claims, without citation to the record, that the prosecutor “made no effort to introduce anything other than the fact of the underlying conviction” because she recognized that the details “were blatant hearsay.” From the record before us, we cannot determine if there was any evidence of the facts of the uncharged offense available to the prosecutor, which would have been admissible over potential hearsay and Crawford v. Washington (2004) 541 U.S. 36 objections. (We note that the trial in this matter was conducted in December of 2004.)
Given the probative value of the evidence of the uncharged offense and the low probability that the jury would be sidetracked with evidence of the conviction or prejudiced by its admission, we cannot say that the trial court “acted in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice” in admitting evidence of the 1985 rape. (People v. Yovanov, supra, 69 Cal.App.4th at p. 406.) Indeed, defendant indicates in his reply brief that, “. . . it is not a matter of the prior offense being similar or dissimilar to the charged crimes. Under section 1108, dissimilarities generally go to the weight, not the admissibility, of prior offense evidence. (People v. Mullens (2004) 119 Cal.App.4th 648, 660.) Here, however, the problem was that the jury knew only the fact that appellant was convicted of rape, but had absolutely no idea how similar or dissimilar the prior offense was. It, thus, had no basis for conducting the weighing process, and no basis for making or rejecting the inference permitted by section 1108. [¶] . . . [T]he issue is not whether the court had sufficient information to determine the evidence’s admissibility. The issue is whether the jury had sufficient information to make or reject the propensity inference of Evidence Code section 1108.”
The trial court demonstrated its exercise of discretion under section 352 by refusing to admit evidence of the 1995 offense.
We are unclear as to what “weighing process” by the jury defendant refers to here; perhaps he is inadvertently referring to the weighing process the trial court, as gatekeeper of the evidence admitted, is required to perform under section 352.
The issue then, as we understand it to be framed by defendant on appeal, is solely whether the trial court abused its discretion in admitting “the bare fact of [his] past conviction,” allegedly without any additional information to assist the jury in determining whether defendant had a propensity to commit sexual offenses, because the jury had insufficient information from which to determine whether to draw an inference of his propensity to commit sex offenses. Defendant claims that admitting evidence of the conviction, without any details about the underlying facts, deprived him of his due process rights. Because the victim of the previous attack was deceased, it was of course impossible to receive live testimony from her as defendant claims is the “usual practice” when admitting evidence pursuant to section 1108, and there was no former testimony available.
We first note that defendant did not raise this specific objection below. As we understand the issue being raised on appeal, this issue was not covered by defendant’s general argument in the trial court that the probative value of the evidence of the 1985 conviction was substantially outweighed by its prejudicial effect under section 352; it therefore is waived. (§ 353, subd. (a) [no verdict set aside because of erroneous admission of evidence absent objection in trial court]; People v. Pinholster (1992) 1 Cal.4th 865, 935 [no review of questions of admissibility of evidence in the absence of specific and timely objection in the trial court on the ground sought to be urged on appeal].) Additionally, defense counsel prohibited introduction of the details of the offense from perhaps the only available source (the defendant himself) by objecting to the prosecutor’s attempt to discuss the underlying facts during her cross-examination of defendant. Even if defendant had preserved this issue for appeal, however, we would find no reversible error.
Not surprisingly, defendant does not argue that his trial counsel was ineffective for failing to object on this ground below. Trial counsel would have had a sound tactical reason for not arguing that the underlying facts concerning the uncharged offense should be introduced, as they were arguably more inflammatory than the facts of the current offense, as detailed above. Further, trial counsel detailed his reasons for agreeing to the stipulation to the fact of his prior conviction—the documents that the prosecutor intended to use to prove the prior conviction contained information that was “extraneous, irrelevant, and prejudicial.” (Strickland v. Washington (1984) 466 U.S. 668, 690-691 [trial counsel not ineffective for making professionally reasonable, informed strategic choices].)
The issue of whether evidence of a prior conviction can be introduced pursuant to section 1108 without the admission of live testimony was raised, and resolved against defendant, in a case curiously not cited by either party, People v. Wesson (2006) 138 Cal.App.4th 959, 967 (Wesson). In Wesson, the trial court concluded that it is permissible under section 1108 to introduce court documents proving a defendant’s conviction, to prove the prior offense. In Wesson, a domestic abuse case involving a sodomy charge, the trial court admitted three court documents as the sole evidence of an uncharged offense: an excerpt from an information, a notice of an order that defendant had changed his plea, and an abstract of judgment showing that he previously had been convicted of forcible oral copulation and sexual battery. (Wesson at pp. 961, 964.) On appeal, the defendant argued, as defendant does here, that “the jury can only make its determination as to a defendant’s propensity to commit the charged offense if the prosecution produces the testimony of witnesses regarding the details of the prior conduct.” (Id. at p. 969.)
The Wesson court first noted that section 1108 does not limit the type of permissible evidence to live testimony, and evidence may therefore include “ ‘writings . . . or other things.’ ” (Wesson at p. 967, quoting § 140.) The court also noted that court records of a prior conviction are admissible to prove that a defendant committed an underlying offense (as opposed to simply proving the fact of a conviction), and it rejected defendant’s argument that the court documents used to prove his prior conviction were inadmissible hearsay. (Wesson at p. 968, citing People v. Duran (2002) 97 Cal.App.4th 1448, 1460-1461 [§ 452.5 is hearsay exception that permits certified official records of conviction to prove commission of underlying offense].) Finally, Wesson rejected the argument that the notice requirement of section 1108, subdivision (b) limits the prosecution to the disclosure of potential live testimony. (Wesson at p. 968.)
The Wesson court upheld the trial court’s conclusion that both the prior and charged offenses involved forcible sexual offenses against adult women, and that the prior offenses were probative as to defendant’s propensity to commit the charged offenses. (Wesson, supra, 138 Cal.App.4th at p. 969.) It concluded, as we have, that the trial court did not abuse its discretion under section 352 in concluding that the prior offenses were probative as to defendant’s propensity. (Wesson at pp. 969-970.) As to defendant’s complaint that he was not able to highlight the difference between the prior and uncharged offenses, the specific issue raised by defendant in this appeal, the court concluded that “had defendant wanted to emphasize that the prior offenses were dissimilar . . . he was free to subpoena [the victim in the prior offense] to present such evidence.” (Id. at p. 969.)
The district attorney in Wesson indicated that he could not locate the victim (Wesson, supra, 138 Cal.App.4th at p. 965); if she was truly unavailable to testify, it is unclear how defendant could subpoena her to testify. However it is also unclear why, if the victim was legally unavailable, the transcript of her prior testimony was not admitted under section 1291. (See Simons, California Evidence (2008) § 6.14, p. 454.) In the present case, defendant elected to testify on his own behalf and certainly could have presented his own version of the underlying facts of the uncharged offense. Instead, as previously indicated, he specifically sought to prohibit the prosecutor from soliciting such details from him.
We are not prepared to hold, as defendant appears to argue here, that the prosecution must always present live testimony from a victim in order for evidence of a prior offense to be admissible pursuant to section 1108. As in this case, the victim from the uncharged offense may not be available to testify in the current trial. Further, we are not convinced that proof of the underlying facts of the uncharged offense must always be presented to the jury; as in this case, the victim’s prior testimony or other admissible evidence detailing the facts may not be available. Where, as in the present case, a defendant has pleaded guilty to the uncharged offense, and neither live testimony nor prior testimony from the victim is available, we do not believe the jury should be deprived of the very probative evidence of defendant’s prior conviction of a sexual offense under section 1108, once the trial court determines its admissibility under section 352. However, even if (as defendant frames the issue on appeal) some evidence of the underlying facts of the uncharged offense must be presented to the jury in order for it to determine whether to draw an inference of propensity, sufficient evidence was before the jury for that purpose here.
In defendant’s opening brief, he indicates that the issue is one of “whether the bare fact of the 1985 conviction was relevant and admissible.” One could interpret this statement to be an allegation that the trial court erred in overruling defendant’s objection pursuant to section 352 below, based in part on the alleged dissimilarities between the offenses. As detailed ante, defendant further refined his statement of the issue on appeal in his reply brief, where he clarifies that the issue is not the similarity of the offenses, as that goes to the weight to be given to the evidence of the uncharged offense, under section 1108. The issue, says defendant, is “whether the jury had sufficient information to make or reject the propensity inference of Evidence Code section 1108.”
The parties stipulated that defendant was convicted of forcible rape in 1985, which proved that defendant had committed that crime. (People v. Duran, supra, 97 Cal.App.4th at p. 1459; § 452.5.) Because defendant pleaded guilty to the crime, there was no question about the certainty of its commission. (Falsetta, supra, 21 Cal.4th at p. 917.) Contrary to defendant’s assertion, this was not “all the jurors knew about the 1985 case.” It was clear that the victim of the prior offense was 72 at the time she was raped, because defendant acknowledged that fact on cross-examination, and it was also apparently established through the admission of C.A.’s death certificate. Thus, the jury here was aware that defendant had been convicted of the same type and class of sexual assault offense in 1985 as he was charged with in the current case (forcible rape), and that the victims in each case were “mature” women. This was sufficient evidence from which the jury could evaluate the weight to give to this evidence and to determine whether or not to draw an inference of defendant’s propensity to commit sexual offenses.
We understand defendant’s argument on appeal to be limited to the propriety of the admission of the 1985 offense pursuant to section 1108. However, to the extent that defendant’s argument might be understood to extend to its admission under section 1101, subdivision (b), we need not reach this argument in light of our conclusion that the trial court did not abuse its discretion in admitting the evidence pursuant to sections 1108 and 352. (People v. Britt (2002) 104 Cal.App.4th 500, 506; People v. Soto (1998) 64 Cal.App.4th 966, 992; see also People v. Branch (2001) 91 Cal.App.4th 274, 280-281 [“Because the court found the testimony admissible under both sections, we would only find error in its admission if the testimony were inadmissible under both.”].)
In any event, even assuming that admission of the conviction without more underlying details was error, we conclude that any such error was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836 [reversible error if reasonable probability that result more favorable to defendant would have been reached in absence of error]; People v. Mullens, supra, 119 Cal.App.4th 648 at pp. 658-659 [error in admission or exclusion of evidence following exercise of discretion under § 352 in considering whether to admit evidence under § 1108 is reviewed under Watson harmless error test].) Defendant characterizes the prosecution’s case without evidence of his prior conviction as a credibility contest between his word and the victim’s. We disagree. Physical evidence admitted at trial corroborated the victim’s version of events: she suffered internal injuries and a knee injury and had vaginal bleeding that was not due to menstruation, and there was vegetation on her clothes (consistent with her testimony that she had been pushed into the bushes). Other witnesses likewise corroborated the victim’s testimony that she was brutally attacked: the nurse who examined the victim testified that the examination of her vaginal area was “very painful” for the victim and that the victim appeared to be “quite a nervous wreck,” and the police officer who first spoke with the victim reported that she was rocking on the couch at her friend’s house and crying.
By contrast, the witness offered to confirm defendant’s version of events (his sister), a convicted felon who admitted to being under the influence of crack cocaine at the time of the events she described, testified that the victim stayed at her apartment after defendant left. This was inconsistent with defendant’s claim that he and the victim left the apartment together and had sex in a nearby park (an explanation for why vegetation was found on the victim’s clothes).
Citing People v. Pearch (1991) 229 Cal.App.3d 1282, defendant claims that jurors indicated this was a close case because they asked several questions during deliberations and asked to have one witness’s testimony read back to them. In Pearch, the court held that the trial court erred when it admitted hearsay statements of a murder victim when he telephoned his brother that were offered to show the victim had been kidnapped. (Id. at pp. 1288, 1290-1291, 1293.) In holding that the error was prejudicial, the court noted that jurors asked several questions that indicated they had concerns about the telephone calls made by the murder victim, and that they questioned the kidnapping scenario. (Id. at p. 1295.) Here, by contrast, none of the jurors’ questions indicated that they doubted the victim’s credibility. They requested a readback of the testimony of defendant’s cellmate, a convicted felon, who claimed that defendant asked him to murder the victim. The request no doubt indicated that the question of whether defendant solicited the cellmate to murder the victim was a close one, as jurors deadlocked on that charge, which did not rest on whether the victim was being truthful. Jurors also asked questions related to the weapon enhancement. Although their questions may have indicated it was a close question whether defendant was armed with a knife during his crimes (post, § II.D.2), jurors did not indicate that they questioned that defendant raped the victim. If anything, their questions showed that jurors believed the victim’s version of events and sought clarification about one of the details surrounding the attack. Finally, jurors also requested to view a videotape of defendant’s interview with police, possibly because defendant’s attorney encouraged them to do so during closing argument because the tape had been shown “far away” from them during trial and would be easier to hear on a smaller VCR.
Also, evidence of defendant’s prior conviction in the 1985 offense was admitted under section 1101, subdivision (b), and to impeach defendant. The jury was thus well aware of the conviction, apart from its admission under section 1108. In light of that fact, as well as all the evidence otherwise presented supporting the conviction, we cannot say that it is reasonably probable that a result more favorable to defendant would have been reached in the absence of the admission of his prior conviction. (People v. Watson, supra, 46 Cal.2d at p. 836.)
B. Jury Instruction Did Not Dilute Prosecution’s Burden of Proof.
In a related argument, defendant claims that the reading of CALJIC No. 2.50.01 (regarding evidence of other sexual offenses, § 1108) violated his right to a reliable jury verdict and his due process rights (U.S. Const., 6th & 14th Amends.). He argues that the instruction “dilute[d] the prosecutor’s burden of proof,” because its confusing wording could lead jurors to believe that they could convict defendant on the current charges under a standard of less than proof beyond a reasonable doubt. As defendant acknowledges, this court is bound by our Supreme Court’s holding in People v. Reliford (2003) 29 Cal.4th 1007, 1016, which found no constitutional error in the challenged jury instruction. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.) Defendant raises this issue only to preserve it for later review. We decline his invitation to “reconsider[]” Reliford, and we reject his arguments that the trial court erred in giving CALJIC 2.50.01, or that the instruction violates due process.
The instruction, as modified in this case, provides: “Evidence has been introduced for the purpose of showing that the defendant engaged in a sexual offense other than that charged in the case. [¶] If you find that the defendant committed a prior sexual offense, you may, but are not required to, infer that the defendant had a disposition to commit sexual offenses. [¶] If you find that the defendant had this disposition, you may, but are not required to, infer that he was likely to commit and did commit the crime for which he is accused. [¶] However, if you find by a preponderance of the evidence that the defendant committed a prior sexual offense, that is not sufficient by itself to prove beyond a reasonable doubt that he committed the charged crimes. [¶] If you determine an inference properly . . . can be drawn from this evidence, this inference is simply one item for you to consider, along with all the other evidence, in determining whether the defendant has been proved guilty beyond a reasonable doubt of the charged crimes. [¶] Unless you are otherwise instructed, you must not consider this evidence for any other purpose.”
C. Counsel Not Ineffective for Failure to Request Pinpoint Instruction.
Defendant next argues that his trial counsel was ineffective for failing to request a jury instruction on the concept of after-acquired intent with respect to the robbery charge. The victim testified that she kept telling defendant before he raped her to take her purse and leave her alone, but that he told her that he did not want to take her purse. After he raped her, defendant grabbed the victim’s purse, told the victim he needed money, and left.
As the jury was instructed in this case, “robbery is the taking of personal property of any value in the possession of another from [her] person or immediate presence and against [her] will, accomplished by means of force or fear, and with a specific intent to permanently deprive the owner of [her] property.” (People v. Green (1980) 27 Cal.3d 1, 50, overruled on other grounds in People v. Hall (1986) 41 Cal.3d 826, 834, fn. 3; Pen. Code, § 211; CALJIC No. 9.40.) The jury also was correctly instructed that in order to find defendant guilty of robbery, there must have been a “union or joint operation of act or conduct and a certain specific intent in the mind of” defendant. (CALJIC No. 3.31; Green, supra, at p. 54.)
Where the intent to steal property arises after a defendant’s use of force, any taking of property that follows is not robbery, because “there is no ‘joint operation of act and intent’ necessary to constitute robbery.” (Green, supra, at p. 54; see also People v. Ramkeesoon (1985) 39 Cal.3d 346, 351 [jurors should have been instructed on lesser included offense of theft based on defendant’s testimony that he did not think to steal murder victim’s property until after assault was completed].) Defendant claims on appeal that based on the victim’s testimony, there was “ample basis” for jurors to conclude that defendant lacked the intent to steal her purse when he stuck her with a sharp object before raping her, and that the intent to steal arose only after defendant had completed the sexual assault. He claims that his trial counsel was therefore deficient in not requesting a jury instruction such as CALCRIM No. 1600, which specifically provides that “[t]he defendant’s intent to take the property must have been formed before or during the time (he/she) used force or fear. If the defendant did not form this required intent until after using the force or fear, then (he/she) did not commit robbery.”
Defendant does not appreciate the significance of the fact that the jury was instructed on the lesser included offense of grand theft (Pen. Code, § 487), which requires only that defendant steal the personal property of another with the specific intent to deprive the owner of property; the use of fear or force is not required. (CALJIC No. 14.02.) “The standard instructions made clear that robbery required a finding of taking by force or fear, while the lesser included [grand] theft offense[] did not.” (People v. Webster (1991) 54 Cal.3d 411, 444 [counsel not ineffective for failing to request “ ‘pinpoint’ instructions” on after-acquired intent].) Defendant’s trial counsel urged jurors during closing argument to convict defendant of the lesser included offense based on his testimony that he took the victim’s money and did not return it to her, but that it was not taken by means of force or fear. The instructions given to jurors made it clear that they had to be convinced beyond a reasonable doubt that defendant used force against the victim with the specific intent to deprive her of property in order to find him guilty of robbery. Far from telling the jury “nothing about when the intent to steal must arise,” as defendant claims, jurors were in fact instructed that there must be a “union or joint operation of act or conduct and a certain specific intent in the mind of” defendant in order to convict him. (CALJIC No. 3.31.)
Even assuming arguendo that there was substantial evidence in the record to support a pinpoint instruction regarding after-acquired intent and that defendant’s trial counsel was deficient in failing to request such an instruction, any error here was harmless. “When a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” (Strickland v. Washington, supra, 466 U.S. at p. 695.) Here, defendant is unable to show that his counsel’s performance resulted in any prejudice to him. (People v. Ochoa (1998) 19 Cal.4th 353, 414.) Pirtle v. Morgan (9th Cir. 2002) 313 F.3d 1160 and United States v. Span (9th Cir. 1996) 75 F.3d 1383, two Ninth Circuit cases upon which defendant relies, are distinguishable because they involved situations where counsel failed to request jury instructions regarding key defenses presented at trial. (Pirtle at pp. 1169-1172; Span at pp. 1387-1389.) Here, by contrast, defendant overstates the strength of evidence to support his theory, raised for the first time on appeal, that he formed the intent to deprive the victim of property only after he used force or fear against her.
Although it is true that the victim testified that defendant told her before the rape that he did not want to take her purse, we are not convinced that this was necessarily an accurate reflection of his intent or, more importantly, that such testimony necessitated a pinpoint instruction regarding after-acquired intent. (People v. Bolden (2002) 29 Cal.4th 515, 558 [trial court need not give pinpoint instruction if it is not supported by substantial evidence].) Defendant also told the victim before he raped her that he did not intend to hurt her, which was obviously not true based on his subsequent conduct. Defendant took the victim’s purse while she was still lying on the ground with one leg outside her pants, contrary to defendant’s claim that the taking of the purse occurred “long after his use of force or fear had ended.” “Where a defendant begins a sexual assault, aware that the victim has property and takes it, the jury may infer the defendant intended to commit both rape and robbery. [Citations.] Or it may infer that the force used for the sexual offense was also force for robbery.” (People v. Shadden (2001) 93 Cal.App.4th 164, 170.)
Counsel’s failure to request a “pinpoint” instruction on the after-acquired intent issue does not undermine confidence in the verdict in light of the fact that the instructions given to the jury were sufficient to explain the necessary intent defendant had to have when he took the victim’s purse in order to convict him of robbery. (People v. Webster, supra, 54 Cal.3d at p. 444.) We reject defendant’s ineffective assistance of counsel claim.
For the same reasons, we reject defendant’s argument that he was prejudiced by his trial counsel’s failure to argue the concept of after-acquired intent to the jury.
D. No Error Requiring Reversal on Weapon Enhancement.
1. Substantial evidence supports jury’s finding on weapon enhancement.
Defendant argues that there is insufficient evidence that defendant was armed with a deadly weapon (Pen. Code, § 12022.3, subd. (b)), and that this court should therefore set aside the weapon enhancement as to counts one through four. We review the record to determine whether substantial evidence supports the verdict. (People v. Johnson (1980) 26 Cal.3d 557, 576; People v. Burton (2006) 143 Cal.App.4th 447, 457; People v. Jacobs (1987) 193 Cal.App.3d 375, 380.) “The question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the elements of the underlying enhancement beyond a reasonable doubt.” (People v. Alvarez (1996) 14 Cal.4th 155, 225, original italics.)
The victim testified that when defendant approached her, he “had something in his hand, and I thought it was a knife, and it was wrapped in something. It wasn’t shin[y] or anything like that.” The object “was wrapped in plastic or black tape or, you know, that electrical tape.” She acknowledged that “I did not see it,” but that she “saw the blackness” of the tape around the object. The victim also testified that defendant pushed the object into her side, and that “[i]t felt kind of sharp. It just felt like a knife or something. It felt sharp.” A police officer testified that the victim “described [the object] as a sharp metal object, possibly wrapped with some tape. . . . [¶] . . . [¶] She wasn’t able to specify whether it was a knife. That’s what she said it was.” The officer also testified that the victim “believed if she didn’t cooperate, she would be stabbed.”
Penal Code section 12022.3, subdivision (b) provides that for each violation of Penal Code sections 261 (rape) and 288a (forcible oral copulation), defendant shall receive a one-, two-, or five-year enhancement if the person “is armed with a firearm or a deadly weapon.” “In determining whether an object not inherently deadly or dangerous is used as such, the trier of fact may consider the nature of the object, the manner in which it is used, and all other facts relevant to the issue.” (People v. Aguilar (1997) 16 Cal.4th 1023, 1029.) A deadly weapon may include objects which “may be used as weapons but which have nondangerous uses, such as hammers and pocket knives.” (People v. Burton, supra, 143 Cal.App.4th at p. 457.) Consistent with that rule, the jury was instructed that a “ ‘deadly weapon’ is any object, instrument, or weapon which is used in such a manner as to be capable of producing, and likely to produce, death or great bodily harm.” (CALJIC No. 17.19.1.) When the jury sent a note to the trial court during deliberations asking whether the charge could just be an “assumption of a deadly weapon, not specific to a knife,” the jury was told that “[t]he instruction is specific as to a knife.” This was consistent with the information, which specifically alleged that the deadly weapon used was a knife.
We disagree with defendant that the victim “never testified to seeing any weapon in his hand at all.” She testified that defendant “had something in his hand, and I thought it was a knife, and it was wrapped in something.” Although she may not have been able to specifically see whether it was a knife, this may have been because it was wrapped in tape. The victim’s belief that the object was a knife also was based on the fact that it “felt kind of sharp” when defendant pushed it into her side. (Italics added.) “The character of the weapon used upon the victim may be shown by circumstantial evidence.” (People v. Green (1985) 166 Cal.App.3d 514, 517 [victim’s testimony that she felt defendant place gun to head and neck, together with evidence of two bullets found in defendant’s pocket, substantial evidence that defendant personally used firearm].) It is not necessary that the victim actually see the weapon. (People v. Jacobs, supra, 193 Cal.App.3d at p. 380 [victim heard sound of defendant cocking the hammer of a gun].) We conclude that the victim’s description of what she saw in defendant’s hand, along with her other sensory perceptions of the object, were substantial evidence that the item was a knife.
The victim testified that when defendant first approached her, he “let me know he had it [the object in his hand]. He touched—he said he didn’t want to hurt me.” She explained that before defendant raped her, “he kept talking about he didn’t want to hurt me. . . . He kept mentioning that he didn’t want me to run, and he kind of pushed me, and I said I couldn’t run, because I had a bad heart.” Defendant’s interpretation of this evidence is that he “was quite clear in stating [to the victim] that he had no intent to hurt” her, and that he did not say anything to lead the victim to believe that he was armed with a knife. Another reasonable interpretation, supported by substantial evidence, is that defendant pressed a knife against the victim to let her know he was armed, pushed her in order for her to walk with him so that he could rape her, and told her that he did not want to hurt her in order to communicate that he could do so if she did not comply with his orders. Although the evidence was not overwhelming, we conclude that sufficient evidence supports the jury’s conclusion that defendant was armed with a deadly weapon during the commission of counts one through four.
2. Trial court adequately responded to jury’s questions.
In a related argument, defendant claims that the trial court failed to adequately respond to jurors’ questions about the weapon enhancement. On the first day of deliberations, the jury sent the following note to the court: “—Clarification on Penal Code 12022.3(B) [¶] —want to know if charge says ‘knife, a deadly weapon’ can just be assumption of a deadly weapon, not specific to a knife. [¶] —Victim’s assumption (fear) that it was a knife and/or a deadly weapon is enough to convict.” The court first sent the following note to the jury: “Could you please clarify request #1 re: Penal Code § 12022.3(b).” Written on that note is the message (presumably from the jury), “We would like clarification.” The jury also wrote a separate note: “Penal Code Section 12022.3 (b). (need tomorrow morning).” The trial court then responded: “1. The instruction is specific as to a knife. [¶] 2. With respect to your second question, please refer to jury instruction 17.19.1.”
We agree with the Attorney General that defendant forfeited his challenge to the adequacy of the trial court’s guidance to the jury by failing to object below. (People v. Marks (2003) 31 Cal.4th 197, 237.) Because defendant also raises an ineffective assistance of counsel claim, we proceed to address the merits of defendant’s argument.
Jurors had a copy of the instruction, which provided (as modified in this case): “It is alleged in Counts 1,2,3,4 and the lesser offense of Attempted Forcible Oral Copulation that the defendant was armed with a deadly weapon during the commission of those crimes. [¶] If you find the defendant guilty of Forcible Rape, Forcible Oral Copulation, Attempted Forcible Rapeor Attempted Forcible Oral Copulation, you must determine whether the defendant was armed with a deadly weapon in the commission of that crime. [¶] A ‘deadly weapon’ is any object, instrument, or weapon which is used in such a manner as to be capable of producing, and likely to produce, death or great bodily harm[,] and it can be inferred from the evidence, including the attendant circumstances, the time, or place, destination of the possessor, the alteration, if any, of the object from its standard form, and any other relevant facts, that the possessor intended on or [sic] those occasions to use it as a weapon should the circumstances so require. [¶] The term ‘armed with a deadly weapon’ means knowingly to carry a deadly weapon, or have it available for offensive or defensive use. [¶] The People have the burden of proving the truth of this allegation. If you have a reasonable doubt that it is true, you must find it to be not true. [¶] Include a special finding on that question in your verdict, using a form that will be supplied for that purpose.”
“The court has a primary duty to help the jury understand the legal principles it is asked to apply.” (People v. Beardslee (1991) 53 Cal.3d 68, 97.) Defendant argues that the trial court failed to fulfill this duty by inadequately responding to the jury’s questions. We first observe that it is somewhat unclear from the record which responses from the trial court correspond to the various questions from jurors. Defendant claims that when jurors asked whether “[v]ictim’s assumption (fear) that it was a knife and/or a deadly weapon is enough to convict,” the trial court “simply referred the jury back to CALJIC No. 17.19.1 [setting forth the elements of the weapon enhancement].” In fact, it is possible that the reference to the jury instruction was a response to the jury’s note “Penal Code Section 12022.3 (b). (need tomorrow morning).” In other words, it may be that the trial court referred jurors to the jury instruction in lieu of providing a copy of the statute (which is presumably what jurors were requesting). We find nothing unreasonable about such a response.
Defendant claims that when the jury asked whether the “[v]ictim’s assumption (fear) that it was a knife and/or a deadly weapon is enough to convict,” it was insufficient to direct jurors to the jury instructions. He argues that the trial court should have responded “ ‘No,’ ” because the victim’s “ ‘assumption’ alone could not give rise to proof beyond a reasonable doubt that the object in [defendant’s] hand was a deadly weapon.” Defendant overlooks the fact that in addition to directing the jury to CALJIC No. 17.19.1, the trial court also wrote to jurors (in response to their question whether “ ‘knife, a deadly weapon’ ” could “just be assumption of a deadly weapon, not specific to a knife”): “The instruction is specific as to a knife.” The court directly answered the jury’s question, in a way that was beneficial to defendant; it did not “punt[],” as defendant claims on appeal. We conclude that the trial court’s note, in conjunction with jury instructions that correctly summarized the relevant law, was sufficient to communicate to jurors that they had to find that defendant possessed a knife, and that a conviction could not be based on the victim’s “ ‘assumption’ alone,” as defendant claims the jury may have believed. Taken together, the trial court’s responses to jurors’ questions about the weapon enhancement charge were adequate, and we find no reason to set aside the jury’s finding.
E. No Ineffective Assistance Of Counsel for Failure to Object to Consecutive Sentence.
Defendant was sentenced to 124 years to life in state prison. The sentence was composed of 25 years to life on counts one and two pursuant to the one strike law (Pen. Code, § 667.61), to be served concurrently and tripled pursuant to the three strikes law, for a total of 75 years to life; five years for each of the prior felony convictions, to bring the total to 85 years to life; the midterm of two years for the weapon enhancement, to bring the total to 87 years to life; two years for the two prison priors, to bring the total to 89 years to life; and the midterm of three years on counts three and four, to run concurrent to each other and to counts one and two. As to count five (robbery), the court sentenced defendant to 25 years to life (pursuant to the three strikes law), to be served consecutively, plus two five-year sentences for the serious prior felonies, bringing the total to 124 years to life.
In ordering that the sentence on count five run consecutively, the trial court noted that (1) the objective of the robbery was different from that of the sex crimes, (2) defendant’s prior convictions were numerous and of increasing seriousness, and (3) defendant had been unsuccessful on parole, concluding that “any of those reasons that the Court had just cited would be sufficient in and of itself to substantiate a consecutive sentence.” After the trial court announced the sentence it intended to impose, defendant’s counsel argued, “I think that the Court could also consider the value of the item that was taken and the purse and the contents in deciding whether or not—because consecutive sentences aren’t mandated even under the three strikes’ law.” The trial court responded: “No. I understand that, sir. But the reason I am—I have elected to give Mr. Thomas the consecutive sentence is the community needs to be protected from him, sir, particularly women. And that is why I am sentencing him consecutive. I’m trying to give him the greatest number of years that I can constrained by Blakely and constrained by the Jones case. [¶] And Mr. Thomas—and I’m not usually one to sentence someone consecutively. However, I am known to sentence pretty well, but I usually don’t sentence consecutively. But this is one case where consecutive sentence, it’s cried out for.” The court later addressed defendant: “I’m imposing the sentence, sir, strictly to punish you and to make sure you stay off the street for the rest of your life.”
(Blakely v. Washington (2004) 542 U.S. 296, 301 [any fact that increases the penalty for a crime beyond prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt].)
(People v. Jones (2001) 25 Cal.4th 98, 107 [imposition of no more than one sentence under Pen. Code, § 667.61 per episode of sexually assaultive behavior].)
On appeal, defendant argues that one of the three bases cited by the trial court for imposing a consecutive sentence on the robbery conviction was improper. A fact used to enhance a defendant’s prison sentence may not be used also to justify imposition of a consecutive rather than a concurrent sentence. (Cal. Rules of Court, rule 4.425(b)(2); People v. Jenkins (1995) 10 Cal.4th 234, 252, fn. 10.) Defendant argues that the trial court here violated this dual-use prohibition by relying on the same prior convictions as a basis to both enhance defendant’s sentence and impose consecutive terms.
Defendant acknowledges that his trial counsel’s failure to object below to the trial court’s supposed violation of the dual-use rule waived the issue on appeal. (People v. Scott (1994) 9 Cal.4th 331, 353.) He argues, however, that his trial attorney provided ineffective assistance of counsel by failing to object to the sentencing error. (Id. at pp. 356-567, fn. 18 [sentencing claim procedurally barred on direct appeal may be raised on habeas corpus under the rubric of ineffective assistance of counsel].) Defendant claims that had his attorney objected to the supposed dual-use violation, the trial court “may have” imposed a concurrent term for the robbery conviction. The record does not support his argument.
“[T]he standards for extraordinary relief based on a claim of ineffective assistance of counsel are familiar and stringent. Both incompetence and prejudice must be shown.” (People v. Scott, supra, 9 Cal.4th at p. 357, fn. 18, original italics.) We agree with defendant that there was no strategic reason not to object to a dual-use violation, assuming arguendo that there was one. Even assuming that defendant’s trial counsel’s performance was deficient, however, we disagree that defendant can demonstrate prejudice. As he concedes, the trial court had other proper bases to impose consecutive sentences: defendant’s unsatisfactory past performance on parole and the fact that the robbery and sex crimes had different objectives. Indeed, as the Supreme Court has recognized: “In deciding whether to impose consecutive terms, the trial court may consider aggravating and mitigating factors, but there is no requirement that, in order to justify the imposition of consecutive terms, the court find that an aggravating circumstance exists. (See [Pen. Code,] § 669; Cal. Rules of Court, rule 4.425(a), (b).) Factual findings are not required. . . . [The court] need only cite ‘reasons’ for other sentencing choices ([Pen. Code,] § 1170, subd. (c)), and the reasons given for imposing a consecutive sentence need only refer to the ‘primary factor or factors’ that support the decision to impose such a sentence (Cal. Rules of Court, rule 4.406(a), (b); [citations].)” (People v. Black (2007) 41 Cal.4th 799, 822.)
Here, the primary factor cited by the trial court in imposing consecutive sentences was to protect the community, particularly women, from defendant. The court stated that it was “imposing the sentence . . . strictly to punish [defendant] and to make sure [he] stay[s] off the street for the rest of [his] life.” Based on the trial court’s stated desire to impose the maximum possible sentence, we disagree with defendant that “it appears reasonably probable that the court would have imposed only concurrent terms in the absence of the improper aggravating factor.” He cites the fact that the trial court chose the more lenient of two options in other aspects of defendant’s sentence when it declined the prosecutor’s request to impose consecutive sentences on counts one through four and also imposed concurrent terms on counts two through four. The court stated when declining to impose the full consecutive terms requested by the prosecutor: “I do find myself constrained not because of my sympathy I have for Mr. Thomas but because I’m constrained by the law.” (Italics added.) Citing People v. Garza (2003) 107 Cal.App.4th 1081 and People v. Plaza (1995) 41 Cal.App.4th 377, the trial court concluded that it could not impose consecutive sentences for sex offenses that did not occur on separate occasions. In other words, the trial court may have actually imposed a harsher sentence had it not been “constrained by the law.” We agree with the Attorney General that there is no reasonable probability that defendant would have received a more favorable sentence had the trial court not considered the convictions that were the subject of the sentence enhancements. Because defendant was not prejudiced, his ineffective assistance of counsel claim fails. (Strickland v. Washington, supra, 466 U.S. at pp. 693-694.)
III. Disposition
The judgment is affirmed.
We concur: Ruvolo, P. J., Rivera, J.