Randy S. Kravis, under appointment by the Court of Appeal, for Defendant and Appellant Rogelio Mata Martinez. Hilda Scheib, under appointment by the Court of Appeal, for Defendant and Appellant Armando Mata. Matthew H. Wilson, under appointment by the Court of Appeal, for Defendant and Appellant Rogelio Mata. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Peter H. Smith, Deputy Attorneys 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. VCF284117A, VCF284117B & VCF284117C)
APPEAL from a judgment of the Superior Court of Tulare County. Gary L. Paden, Judge. Randy S. Kravis, under appointment by the Court of Appeal, for Defendant and Appellant Rogelio Mata Martinez. Hilda Scheib, under appointment by the Court of Appeal, for Defendant and Appellant Armando Mata. Matthew H. Wilson, under appointment by the Court of Appeal, for Defendant and Appellant Rogelio Mata. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Peter H. Smith, Deputy Attorneys General, for Plaintiff and Respondent.
Following a joint jury trial, defendants Rogelio Mata Martinez (Martinez), Rogelio Mata, and Armando Mata were convicted as follows:
Count 1: Lewd act (pulling down pants) on Va., a child under 14 (Pen. Code, § 288, subd. (a));
All statutory references are to the Penal Code unless otherwise stated.
Count 2: Lewd act involving substantial sexual conduct (penis to body) on Va., a child under 14 (§§ 288, subd. (a), 1203.066, subd. (a)(8));
Count 3: Attempted sodomy by a person 18 years of age or older with Va., a child 10 years of age or younger (§§ 288.7, subd. (a), 664);
Count 4: Forcible lewd act involving substantial sexual conduct (penis to vagina, first time) on Va., a child under 14 (§§ 288, subd. (b)(1), 1203.066, subd. (a)(8));
Count 5: Forcible lewd act involving substantial sexual conduct (penis to vagina, next time) on Va., a child under 14 (§§ 288, subd. (b)(1), 1203.066, subd. (a)(8));
Count 6: Forcible lewd act involving substantial sexual conduct (penis to vagina, last time) on Va., a child under 14 (§§ 288, subd. (b)(1), 1203.066, subd. (a)(8));
Count 7: Forcible lewd act involving substantial sexual conduct (penis to buttocks, first time) on Va., a child under 14 (§§ 288, subd. (b)(1), 1203.066, subd. (a)(8));
Count 8: Forcible lewd act involving substantial sexual conduct (penis to buttocks, next time) on Va., a child under 14 (§§ 288, subd. (b)(1), 1203.066, subd. (a)(8));
Count 9: Forcible lewd act involving substantial sexual conduct (penis to buttocks, last time) on Va., a child under 14 (§§ 288, subd. (b)(1), 1203.066, subd. (a)(8));
Count 10: Forcible lewd act (mouth to breast, first time) on Va., a child under 14 (§ 288, subd. (b)(1));
Count 11: Forcible lewd act (mouth to breast, next time) on Va., a child under 14 (§ 288, subd. (b)(1));
Count 12: Forcible lewd act (mouth to breast, last time) on Va., a child under 14 (§ 288, subd. (b)(1));
Count 13: Forcible lewd act involving substantial sexual conduct (finger to vagina) on Va., a child under 14 (§§ 288, subd. (b)(1), 1203.066, subd. (a)(8));
Count 14: Digital penetration (first time) by a person 18 years of age or older with Va., a child 10 years of age or younger (§ 288.7, subd. (b));
Count 15: Digital penetration (last time) by a person 18 years of age or older with Va., a child 10 years of age or younger (§ 288.7, subd. (b));
Count 16: Lewd act involving substantial sexual conduct (finger to vagina, first time) on Va., a child under 14 (§§ 288, subd. (a), 1203.066, subd. (a)(8)), with the special allegation of multiple victims (§ 667.61, subd. (b));
Count 17: Lewd act involving substantial sexual conduct (finger to vagina, last time) on Va., a child under 14 (§§ 288, subd. (a), 1203.066, subd. (a)(8)), with the special allegation of multiple victims (§ 667.61, subd. (b));
Count 18: Lewd act (hand to buttocks) on Va., who was 14 years old, by a person at least 10 years older (§ 288, subd. (c)(1));
Count 19: Lewd act (hand to breast) on Va., who was 14 years old, by a person at least 10 years older (§ 288, subd. (c)(1));
Count 20: Attempted forcible lewd act on Va., a child under 14 (§§ 288, subd. (b)(1), 664);
Count 21: Sexual intercourse by a person 18 years of age or older with Vi., a child 10 years of age or younger (§ 288.7, subd. (a));
Count 22: Forcible lewd act involving substantial sexual conduct (penis to vagina) on Vi., a child under 14 (§§ 288, subd. (b)(1), 1203.066, subd. (a)(8)), with the special allegation of multiple victims (§ 667.61, subd. (b));
Count 23: Forcible lewd act involving substantial sexual conduct (hand to vagina) on Vi., a child under 14 (§§ 288, subd. (b)(1), 1203.066, subd. (a)(8)), with the special allegation of multiple victims (§ 667.61, subd. (b)).
Martinez was sentenced to a total of 11 years in prison. Rogelio Mata was sentenced to a total of 80 years in prison. Armando Mata was sentenced to a total of 12 years eight months plus 55 years to life in prison. All were ordered to pay various fees, fines, and assessments, and to register as sex offenders.
Defendants now contend they should not have been jointly tried, and that they are entitled to reversal due to cumulative error. Martinez also claims (1) count 3 must be reversed on ex post facto grounds, (2) defense counsel was ineffective for failing to object to admission of the portion of Rogelio Mata's police interview that directly incriminated Martinez, (3) he was denied a fair trial by the inclusion of irrelevant and inflammatory information in Va.'s testimony, (4) the sentence on count 1 should have been stayed pursuant to section 654, and (5) defense counsel was ineffective for failing to object to the consideration of two factors in aggravation that were not supported by substantial evidence. Rogelio Mata and Armando Mata claim their trial attorneys were ineffective for failing to object to or seek suppression of their confessions based on inadequate Miranda advisements. In addition, Rogelio Mata contends (1) there was insufficient evidence his crimes were committed by force, violence, duress, menace, or threat, and (2) resentencing is required because there was insufficient evidence the offenses were committed on separate occasions, as required for full consecutive sentencing under section 667.6, subdivision (d). Armando Mata contends his convictions on counts 14 and 15 were not supported by substantial evidence. We conclude Martinez must be resentenced due to section 654 error, while Rogelio Mata's sentence on counts 9 through 13 must be vacated and remanded for resentencing due to insufficient evidence of separate occasions. We otherwise affirm as to Martinez and Rogelio Mata, and affirm the judgment in its entirety as to Armando Mata.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
Va. was born in 1998. Martinez was her father. Rogelio Mata and Armando Mata were two of her brothers. At the time of events, Va., Martinez, Rogelio Mata, and other family members resided together in Tulare County. Armando Mata sometimes stayed at the house while visiting from Washington.
Va. recalled that when she was about six or nine years old, she was napping on the floor in the kitchen area. Her mother was at the dining table nearby. Va. heard Martinez, whose walk she recognized, come into the kitchen. All of a sudden, Va., who was "like mid sleeping, mid awake," felt Martinez, who was drunk, pull down her pants. He pulled his pants down, too, and she felt his penis touch her buttocks. Her mother became aware and got mad at Martinez and asked why he was doing that. She then asked Va. why Va. did not wake up faster and tell her. She was angry and yelling. Va. thought she was angry at Va., and did not say anything about Martinez's penis touching her buttocks because she was scared to tell.
At trial, F., Va.'s mother, testified she did not remember any such incident. Initially, she denied talking to the police about Va. She then testified that when Va. was nine, F. was lying with Va. in the bed on the floor in the living room. Martinez was lying on the sofa. It was about 1:00 a.m. F. got up to use the restroom. When she returned, Va. was still asleep on the floor and Martinez was still asleep on the sofa. On another occasion, Martinez went into the room when Va. was asleep. He said he was going to the restroom. F. thought Martinez was going to rape Va., but he said he was covering Va. up with the blanket because it was cold. On another occasion, Va. was lying down on the floor. Martinez came into the room and fell to the floor because of a problem with his leg. F. admitted telling Martinez to be careful and not rape Va. She said this because she had seen it on a television show. Martinez said he did not do that, as he respected his children. F. denied that anything inappropriate happened while Va. was sleeping on the floor in the kitchen.
On two occasions, Va. was sleeping in bed when she woke to find the mattress wet and white, slimy stuff — which she now knew was sperm — on the blanket. On one of these occasions, there was a soggy adult-sized T-shirt on the bed. It had not been there when Va. fell asleep that night. The shirt could have belonged to Martinez or to one of Va.'s brothers. Va. was sleeping in pants and a shirt. Her pants were loose but had not been pulled down. Va. never found a bandage on her bed that came from Martinez's prosthetic leg. Sometimes when she woke, she would find her pants on only one leg, whereas they had been on both legs when she went to sleep. This happened when she was in seventh or eighth grade, so she would have been about 11 or 12 years old.
Va. reported to law enforcement that she found a bandage from Martinez's leg in her room. This was not true. Va. also admitted lying when she reported that Martinez picked her up from a soccer game and took her to a motel in Fresno, where he had sex with her. She lied because her brother-in-law told her to make things up so Martinez would stay in jail. She eventually told the detectives on this case that she had lied about those things.
When Va. was in sixth grade to around eighth grade, Rogelio Mata would show her pornography and then take her to his room. He had four bricks near the door to his room to keep people from going in to play with his Xbox, and he would put them against the door. He would then pull down both their pants. Although he did not put his penis inside Va., it would touch her vagina and buttocks. Sometimes he was on top of her, while other times he was behind her as she lay on her side. Other times, she was on her hands and knees on the floor with him behind her. This happened more than five times. He also touched her vagina with his finger and her breasts with his hands. This also happened more than once. He touched his mouth to her breast more than five times. This happened in her room or in his room or on the sofa. Rogelio Mata, who was about six or seven years older than Va. and who had always been bigger than her, would tell her not to tell anyone, or he would tell their parents something. Va. knew he would make something up. He would also tell her that he would hurt her. Although he did not say how, sometimes he would lift up his fist or get the BB rifle that he had in his room. Sometimes he had that gun in his hands, and pointed it at her and threatened to shoot her, when he said not to tell. Va. was scared of him.
The first incident with Rogelio Mata occurred four years after the kitchen incident involving Martinez. During that four-year gap, nobody did anything inappropriate to Va. When Rogelio Mata touched her the first time, she was 11 years old and in sixth grade.
Rogelio Mata stopped sexually abusing Va. when she entered her freshman year in high school. She was 14 years old. In May 2013, Va. finally told her mother what was going on between Va. and Rogelio Mata. Va. first reported it to law enforcement in June 2013. When Rogelio Mata first approached her, she did not realize she could contact law enforcement.
One summer in June, Va., her niece, and her family went to the beach in Santa Monica. Va. was small and in elementary school, although almost in junior high school. She was 11 years old. Armando Mata took Va. and her niece, Vi., into deep water. As the girls held onto him, he put his finger in Va.'s vagina underwater and took it out again. He did this three times. Va. just stared at him. He stared back and smiled. Va. wanted to move away, but he kept holding on and she could not touch bottom.
On redirect examination, Va. testified she did not remember her age at the time of the trip to Santa Monica, which was for her birthday. After her memory was refreshed with the transcript of a statement she gave to one of the detectives, she testified she was 10 years old.
In May of 2013, when Va. was 14 years old, Armando Mata and his wife and child came down from Washington to visit. Va. was asleep in her room when she felt Armando Mata touch her breast and vagina. He tried to unbutton her pants, but she started moving around. When she got up to use the bathroom, her zipper was down. She told her mother, who told her to go back in her room. When Va. refused, her mother let her sleep in her parents' room.
On cross-examination, Va. said this incident took place in 2012 or 2013. She also said she was 12 or 13 years old.
Va.'s sister-in-law and nephew were also sleeping in the bed.
On another occasion, when Va. was 12 or 13 years old, she was in her room when Armando Mata came in and locked the door behind himself. He said he would pay Va. $50 if she orally copulated him. She did not want to and tried unsuccessfully to leave the room. Ultimately, she did as he said so she could get out of the room. After she did it, he put what she thought was money in her pocket, but it turned out to be papers he had torn up. She said she was going to tell her mother, but he told her to go ahead, that their mother would not believe her because he was their mother's favorite. Va. did not tell.
Vi. was born in 1999. Armando Mata was her uncle. When Vi. was eight or nine years old, Armando Mata, his wife, and their son rented a room from Vi.'s mother in the house in which Vi. lived with her mother and brother. Vi. had her own room. The lock on the door did not work right, however, and Armando Mata would come into her room at night and touch her. She did not know how many times this happened or how old she was. Sometimes her clothes would stay on, and sometimes he would take them off. He touched her vagina with his hand more than once. He also put his penis in her vagina. She tried to push him away when he climbed on top of her, but he kept coming back. She told him to stop, but he did not. His body was moving when his penis was inside her vagina. After he finished and left, she locked her door and started crying. A day or so later, he told her to go to her room, that he had a condom. At the time, she did not know what a condom was.
At some point, Vi. went to Washington with Armando Mata and his wife and son. Armando Mata would try to touch Vi.'s vagina, but she would wrap herself tightly in her blanket.
Vi. never called out for help. Eventually, she told Va. what had happened. She did not tell anyone right away or tell Armando Mata's wife when they were home alone together, because she was scared. She did not know why.
On June 6, 2013, Tulare County Sheriff's Detective Garcia was dispatched to Va.'s residence to investigate this case. There, she spoke with Va., who was crying, shaking, and extremely emotional. Garcia also spoke with Vi. at Vi.'s residence in Tulare County. When Garcia told Vi. that she had received some information from Va. about Armando Mata possibly having done something to Vi., Vi. immediately started "bawling" and said yes, it was true. Vi. described him sexually assaulting her when she was eight years old, but she was so emotional that Garcia terminated the interview. Tulare County Sheriff's Detective Skrinde interviewed Va. four times over the course of the investigation. Sometimes Va. was quiet, hesitant, and reluctant to give information. She cried and seemed afraid.
Garcia interviewed Armando Mata. He denied doing anything to either girl. He admitted that the first night, he, his wife, and his son slept in the same bed as Va., but said his wife was between him and Va. He did not know if he touched Va. while he was asleep, but if so, it was an accident. He admitted Va. was sleeping right next to him. From what he remembered, he threw his arm around her, but did not touch her private parts. As for Vi., he sometimes put an arm around her and asked how she was doing, as she was like a daughter to him. He denied ever abusing her, however. Once when he was drunk, he went to bed. Vi. came and asked if she could lie down. He said if she wanted. She lay down, tightly hugged him, and started to "have a relationship." He asked what she was doing and told her it was not right. She asked why, and he again told her it was not right, that he did not want her to have a relationship with him, and it was better for her to wait for a boyfriend who would love her.
Because Armando Mata spoke Spanish and Garcia did not, Garcia had dispatch connect her with the AT&T translation service. The entire conversation among Garcia, Armando Mata, and the translator was recorded, with the translator being on speaker phone. The recording was played for the jury. The parties stipulated that the transcript of the recording, which was admitted into evidence and provided to the jury, was an accurate English translation of the recording, which was in Spanish.
Armando Mata related that about a week later, he got really drunk. His wife was out, and Vi. started touching him little by little. He told her it was not right. He did not know if he touched all of her, but he remembered touching her breasts. When Garcia said he then started touching Vi. on her vagina and they had sex, Armando Mata said he thought so, because when he woke, he was dizzy and only had his shorts and T-shirt on, and Vi. was not there with him anymore. He was drunk and did not know if he had sex with her. She was on top of him. He did not finish to the point of ejaculation, because she got up and left. When he woke, his shorts were wet with sperm. The next day when he got home from work, he asked her how she was, and she said fine. He told her that if something happened, he never wanted to do it with her again, because it was not right. She provoked him and he was really drunk. He believed she was about 10 years old at the time.
Skrinde spoke with Rogelio Mata. The interview with Rogelio Mata, which took place on June 6, 2013, was recorded. Rogelio Mata said he started having sex with Va. about six years earlier, when he was 14 years old and Va. was eight. The first time it happened, they were in Va.'s room. Rogelio Mata was sleeping on the floor. He touched Va.'s vagina with his hands. Va. was asleep at the time. She woke up and told their mother. F. spanked Rogelio Mata and grounded him. It happened again a couple months later. The house was full of people, so Rogelio Mata went into Va.'s room to get some sleep. He was on the floor again. He pulled down Va.'s pants and put his penis in her buttocks. He ejaculated, then apologized to Va. She was crying and said it hurt. She was covering her vagina with her hands, which was why he put his penis in her buttocks. He told her not to tell anyone.
The recording was played for the jury. It was in English.
The next time was about six months later, when Va. was around nine and Rogelio Mata around 15. Someone was again sleeping in his room, so he went to sleep in Va.'s room. Early in the morning, he touched her vagina and breasts. Va. woke, hit him, and then told her mother. F. started hitting him, so he ran outside. On July 6, when he was 15, he went to Va.'s room and put his penis in her vagina. They both had their pants down and started making out and touching each other. He put his penis in her buttocks and then in her vagina, but he ejaculated into his hands. On another occasion when he was 15, Va. spent the night in his room. He touched her and put his fingers inside her vagina. He put his penis in her buttocks. She did not wake up.
Rogelio Mata said he had sex with Va. about 10 times while he was 15. He denied anything happened when he was older than that. Eventually, however, he admitted he had had sex with her the previous November. The time before that, in May, he carried her to the sofa, turned the television up so nobody would hear, and made out with her. They both had their clothes all the way off, and he had sex with her. The same thing happened on August 24. Another time that same day, he put his penis in her buttocks. She told him to stop, but he did not.
Skrinde also interviewed F. F. related that when Va. was approximately nine years old, F. came into the room where Va. was sleeping on the floor. Martinez was under the blanket with her. F. said she pulled the blanket off and observed that both Martinez's and Va.'s pants were pulled down, and F. believed Martinez was trying to rape Va. F. said she was upset with Martinez and yelled at him.
A recording of the pertinent portion of the interview was played for the jury. In it, F. said Martinez was lying on the floor with Va., and pulling down her pants. F. related that Martinez was drunk and said he thought Va. was F. He also said he did not take "it" out and was just arranging the blankets.
Dr. Anthony Urquiza, a psychologist and professor in the Department of Pediatrics at the University of California Davis Medical Center, testified concerning child sexual abuse accommodation syndrome.
We address claims of cumulative error in part V of the Discussion, post.
A. Joint Trial (all defendants)
Although the charges in this case went through a number of changes over the course of proceedings, at no time were multiple defendants charged together in any count. The record does not reflect that any defendant requested severance or objected to a joint trial. There were, however, off-the-record discussions about separate trials. Of particular concern to defendants was the inclusion in the information of a fourth defendant who was alleged to have caused Va. to become pregnant, and the negative influence that might have on jurors. That defendant entered a plea, however, and was no longer before the court. In addition, the trial court informed counsel that it would not be inclined to grant separate trials if requested. No defendant had made statements incriminating any other defendant, defendants and the victim were all family members, and the court did not look favorably on the victim having to testify in three different trials with essentially the same issues.
We granted Martinez's application to obtain a settled statement concerning those discussions.
A package deal was offered to defendants, but Martinez declined to accept the offer.
Defendants all claim it was error to try them jointly. They say the joint trial resulted in such unfairness that each was deprived of his rights to a fair trial and due process. The Attorney General says defendants are precluded from raising this issue on appeal because none moved for severance in the trial court. Defendants disagree, but contend that if we so find, then their trial attorneys were ineffective. We conclude defendants have not shown cause for reversal.
"Our Legislature has expressed a strong preference for joint trials. [Citations.]" (People v. Souza (2012) 54 Cal.4th 90, 109.) Thus, section 1098 provides, in pertinent part: "When two or more defendants are jointly charged with any public offense, . . . they must be tried jointly, unless the court order separate trials." When defendants are charged with having committed " ' " 'common crimes involving common events and victims,' " ' " a " ' "classic case" ' for a joint trial" is presented. (People v. Souza, supra, at p. 110.)
The fact there are common victims and the same class of crimes (see § 954), as in the present case, is not enough, however. In People v. Ortiz (1978) 22 Cal.3d 38 (Ortiz), the California Supreme Court construed section 1098 and concluded: "The requirement of the section that defendants jointly charged be jointly tried — unless in the trial court's discretion separate trials are appropriate — clearly implies that a joint trial is improper if there is no joint charge. Decisions interpreting section 1098 are consistent with this construction. Indeed, cases have consistently held that it is error to try together different defendants for different crimes unless at least one count of the accusatory pleading charges all the defendants with a single crime." (Ortiz, supra, at p. 43, italics added.) The high court reasoned that the proper joinder of counts under section 954 did not change this, since otherwise, everyone charged with a specific crime " 'could be required to stand trial with any number of other defendants charged with independent, unrelated crimes of the same class.' [Citation.]" (Ortiz, supra, at p. 45, fn. omitted.)
Section 954 provides, in pertinent part: "An accusatory pleading may charge two or more different offenses connected together in their commission, or different statements of the same offense or two or more different offenses of the same class of crimes or offenses, under separate counts . . . ."
Pursuant to Ortiz, defendants here should not have been jointly tried. They did not object or move for severance, however. Accordingly, they have forfeited the issue for purposes of appeal. (See People v. Cornejo, supra, 92 Cal.App.3d at p. 659; People v. Kipnis, supra, 5 Cal.App.3d at p. 987.)
Courts have carved an exception to Ortiz for cases in which codefendants committed a series of crimes against the same victim, at the same time and place and as part of the same transaction. (People v. Wickliffe (1986) 183 Cal.App.3d 37, 40-41; People v. Hernandez (1983) 143 Cal.App.3d 936, 939.) In the present case, although all defendants were charged with committing offenses against Va., there was no evidence the offenses were committed at the same time and place, and as part of the same transaction. Accordingly, the exception does not apply.
Some cases, and certain counsel on this appeal, discuss whether the issue has been "waived" on appeal due to trial counsel's failure to object. (See, e.g., People v. Abbaszadeh (2003) 106 Cal.App.4th 642, 648; People v. Cornejo (1979) 92 Cal.App.3d 637, 659; People v. Kipnis (1970) 5 Cal.App.3d 980, 987.) " 'Waiver,' of course, suggests an express relinquishment or abandonment of a known right or privilege. [Citations.] '[T]he terms "waiver" and "forfeiture" have long been used interchangeably. The United States Supreme Court recently observed, however: "Waiver is different from forfeiture. Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the 'intentional relinquishment or abandonment of a known right.' [Citations.]" [Citation.]' [Citations.]" (People v. Mata (2013) 57 Cal.4th 178, 193 (conc. opn. of Werderger, J.).)
We recognize that a party generally will be excused for his or her failure to raise an issue at trial where any such objection would have been futile. (See, e.g., People v. Abbaszadeh, supra, 106 Cal.App.4th at p. 648; People v. O'Connell (1995) 39 Cal.App.4th 1182, 1190.) The record does not demonstrate futility here, however. Although the settled statement makes clear the trial court was not "inclined" to grant separate trials, it is also apparent there was no discussion of Ortiz's separate-trial mandate. We cannot conclude the trial court would have maintained its stance in favor of a joint trial in the face of Ortiz's requirement of separate trials.
Defendants say that if we find the issue was not preserved for appeal, then trial counsels' failure to object to a joint trial or move for severance constituted ineffective assistance of counsel.
The burden of proving ineffective assistance of counsel is on the defendant. (People v. Pope (1979) 23 Cal.3d 412, 425.) "To secure reversal of a conviction upon the ground of ineffective assistance of counsel under either the state or federal Constitution, a defendant must establish (1) that defense counsel's performance fell below an objective standard of reasonableness, i.e., that counsel's performance did not meet the standard to be expected of a reasonably competent attorney, and (2) that there is a reasonable probability that defendant would have obtained a more favorable result absent counsel's shortcomings. [Citations.] 'A reasonable probability is a probability sufficient to undermine confidence in the outcome.' [Citations.]" (People v. Cunningham (2001) 25 Cal.4th 926, 1003; see generally Strickland v. Washington (1984) 466 U.S. 668, 687-694 (Strickland).)
"If the record contains no explanation for the challenged behavior, an appellate court will reject the claim of ineffective assistance 'unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.' [Citation.]" (People v. Kipp (1998) 18 Cal.4th 349, 367.) In other words, "in assessing a Sixth Amendment attack on trial counsel's adequacy mounted on direct appeal, competency is presumed unless the record affirmatively excludes a rational basis for the trial attorney's choice. [Citations.]" (People v. Musselwhite (1998) 17 Cal.4th 1216, 1260, italics omitted.)
"In considering a claim of ineffective assistance of counsel, it is not necessary to determine ' "whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies . . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed." ' [Citation.]" (People v. Mesa (2006) 144 Cal.App.4th 1000, 1008.) In analyzing prejudice on a claim of ineffective assistance of counsel, we apply the Strickland standard even if, for example, we would apply the harmless-beyond-a-reasonable-doubt standard of Chapman v. California (1967) 386 U.S. 18, 24 (Chapman) had the direct claim of error not been forfeited for appeal. (People v. Mesa, supra, 144 Cal.App.4th at pp. 1008-1009.) "This second [(prejudice)] part of the Strickland test 'is not solely one of outcome determination. Instead, the question is "whether counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair." [Citation.]' [Citation.]" (In re Hardy (2007) 41 Cal.4th 977, 1019.)
We conclude defendants have not established prejudice under the Strickland test. We recognize Rogelio Mata and Armando Mata confessed, while Martinez did not. Nevertheless, Va.'s allegations against Martinez were confirmed by F.'s statements to the investigating officers. We also recognize that a small portion of Rogelio Mata's confession implicated Martinez. (See post, at pp. 25-27.) Defendants did not present conflicting defenses, however, nor does the record suggest any possibility that a codefendant would give exonerating testimony at a separate trial. Significantly, we see no likely confusion resulting from evidence on multiple counts, or prejudicial association with codefendants. (See Ortiz, supra, 22 Cal.3d at pp. 46-48 [applying factors set out in People v. Massie (1967) 66 Cal.2d 899, 916-917 in determining prejudice from denial of severance]; accord, e.g., People v. Souza, supra, 54 Cal.4th at p. 110.)
Defendants' suggestion jurors likely would have assumed there was some sort of concerted plan or that all defendants were part of a single, ongoing course of systematic sexual exploitation of underage female family members, is speculative at best and unsupported by the record. (See People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1175, disapproved on another ground in People v. Rangel (2016) 62 Cal.4th 1192, 1216.) The evidence showed no concerted action of any type, or even the presence of more than one defendant while the offenses were being committed. The trial court instructed the jury to "separately consider the evidence as it applies to each defendant" and to "decide each charge for each defendant separately." We have no reason to doubt jurors followed these instructions, which were reinforced by the prosecutor's argument that each defendant was charged with separate crimes, and that the evidence had to be considered against each defendant individually. (See Kansas v. Carr (2016) 577 U.S. ___, ___ [136 S.Ct. 633, 645]; People v. Hajek and Vo, supra, 58 Cal.4th at pp. 1175-1176.) The court also instructed jurors that they could consider Rogelio Mata's and Armando Mata's statements only against the defendant who made the statement. Except for the portion of Rogelio Mata's statement that implicated Martinez (which we discuss post, at pp. 24-30), we presume jurors also followed this instruction. (See People v. Capistrano (2014) 59 Cal.4th 830, 869.) B. Miranda Advisements (Rogelio Mata, Armando Mata)
As previously described, Rogelio Mata was interviewed by Detective Skrinde. After Skrinde verified Rogelio Mata's name and date of birth and obtained his cell phone number, the following took place:
" NS: [Skrinde] All right. Um, Rogelio, before we begin, you've seen the cop shows, right?
" RM: [Rogelio Mata] Yeah.
" NS: You watch TV?
" RM: Not a lot.
" NS: Not a lot? I'm not saying you just sit there every day, but you've seen cop— you've seen television, right?
" RM: I don't watch cops anymore.
" NS: Okay.
" RM: I don't watch them anymore.
" NS: Not anymore, all right. Well, you know that I gotta do the whole read you your rights thing, right?
" RM: Yeah.
" NS: Okay, so I'm just gonna do it, get it out of the way and let's see where we can go from there, okay. You have the right to remain silent, anything you say can and will be used against you in a court of law. You have the right to an attorney, if you cannot afford an attorney, one will be appointed to you at no cost. Do you understand those rights?
" RM: Yes." (Italics added.)
Armando Mata was interviewed by Detective Garcia, who, as previously explained, employed the services of a telephonic interpreter. The interview commenced as follows:
" KG: [Garcia] All right. Let me— come a little close dude, so he'll— she'll be able to hear you. (unintelligible). Um. Can you introduce me as Detective Garcia with the Sheriff's Department and um— that I realize that he's in custody and I'm gonna go ahead and advise him of his Miranda Rights. And then we could talk about things afterwards.
" UF: [interpreter] Hello sir, I am an interpreter that is going to translate for the lady. She is Detective Garcia. You are in custody. I am going to read you your rights.
" AF: [Armando Mata] Uh-huh.
" KG: Okay. So you have the right to remain silent. Anything you say, can and will be used against you in a court of law. You have the right to have an attorney and have him present while you're being questioned. If you can't afford to hire an attorney, one will be appointed to you. Do you understand all that?
" UF: You have the right to remain silent. Any information you say can be used against you. You also have the right to have an
attorney. If you cannot afford one, one will be appointed to you. Are you understanding everything I told you?
" AF: Oh, yeah." (Italics added.)
Rogelio Mata and Armando Mata contend they were given inadequate Miranda advisements, because they were not told they had the right to consult with an attorney and to have that attorney present before and during questioning. Armando Mata says the inadequacy of the advisement was "exponentially exacerbated" by the incomplete translation. Because their trial attorneys did not object to admission, or seek suppression, of their statements to law enforcement, they claim they received constitutionally inadequate assistance of counsel.
The Attorney General does not directly address this assertion. For purposes of our analysis, we attribute the interpreter's statements to Garcia, and deem Armando Mata to have been told (as was Rogelio Mata) only that he had the right to have an attorney, and not also, as Garcia stated, that he had the right to have the attorney present while he was being questioned. (Cf. Correa v. Superior Court (2002) 27 Cal.4th 444, 454, 456, 457.)
In Miranda, supra, 384 U.S. at page 479, the United States Supreme Court held that in order to protect an individual's privilege against self-incrimination during custodial interrogation, "the following measures are required. [The person] must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. . . . [U]nless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him." (Fn. omitted; see People v. Linton (2013) 56 Cal.4th 1146, 1170-1171.)
The warnings need not be given in the exact form set out in Miranda. (Duckworth v. Eagan (1989) 492 U.S. 195, 202.) The United States Supreme Court "has never indicated that the 'rigidity' of Miranda extends to the precise formulation of the warnings given a criminal defendant. . . . [¶] Quite the contrary, Miranda itself indicated that no talismanic incantation was required to satisfy its strictures." (California v. Prysock (1981) 453 U.S. 355, 359.) "The prophylactic Miranda warnings are 'not themselves rights protected by the Constitution but [are] instead measures to insure that the right against compulsory self-incrimination [is] protected.' [Citation.] Reviewing courts therefore need not examine Miranda warnings as if construing a will or defining the terms of an easement. The inquiry is simply whether the warnings reasonably 'convey to [a suspect] his rights as required by Miranda' " (Duckworth v. Eagan, supra, 492 U.S. at p. 203), including the right to consult with an attorney and to have the attorney with him during questioning (Florida v. Powell (2010) 559 U.S. 50, 53; People v. Wash (1993) 6 Cal.4th 215, 236).
Because neither Armando Mata nor Rogelio Mata objected to admission of, or moved to suppress, his statement on the ground sought to be raised on appeal, the issue has been forfeited as to each defendant. (People v. Seaton (2001) 26 Cal.4th 598, 656; People v. Polk (2010) 190 Cal.App.4th 1183, 1194.) Both defendants recognize this, and seek review of the asserted Miranda violation by claiming ineffective assistance of counsel.
The legal principles applicable to such a claim are set out in part I A. of the Discussion, ante, at pages 15 through 16. Where the claim is premised on a failure to object to or to seek suppression of evidence, the defendant must show, inter alia, the motion or objection would have been meritorious. (People v. Coddington (2000) 23 Cal.4th 529, 652, overruled on another ground in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13; People v. Scaffidi (1992) 11 Cal.App.4th 145, 151, 155.)
We do not believe the requisite showing has been made here. Rogelio Mata and Armando Mata each expressly was told he had the right to an attorney. In the context of the advisements as a whole, the only reasonable interpretation is that the right to have an attorney existed then and there, i.e., during questioning, as did the right to remain silent. Although the warnings did not expressly state that either defendant had the right to consult with an attorney prior to questioning, we do not believe the language was so ambiguous or confusing — particularly in light of the stated right to remain silent — as to lead either defendant to believe an attorney would not be provided upon request, whenever that request was made. (See People v. Wash, supra, 6 Cal.4th at p. 236.) Significantly, the warnings neither suggested any limitation on the right to the presence of counsel nor linked the appointment of counsel to a point in time after police interrogation. (Cf. Duckworth v. Eagan, supra, 492 U.S. at p. 198; California v. Prysock, supra, 453 U.S. at pp. 360-361.) The advisements did not " 'entirely omi[t] . . .' . . . any information Miranda required [the detectives] to impart." (Florida v. Powell, supra, 559 U.S. at p. 62; see People v. Lujan (2001) 92 Cal.App.4th 1389, 1397.)
No doubt, the right to have counsel present before and during questioning could have been more explicitly stated. The "essential inquiry," however, "is simply whether the warnings reasonably ' "[c]onvey to [a suspect] his rights as required by Miranda." ' [Citation.] We are satisfied that the warnings given [each] defendant here 'reasonably conveyed' his right to have an attorney present during questioning." (People v. Wash, supra, 6 Cal.4th at pp. 236-237, quoting Duckworth v. Eagan, supra, 492 U.S. at p. 203; see People v. Lujan, supra, 92 Cal.App.4th at p. 1400; but see People v. Diaz (1983) 140 Cal.App.3d 813, 823-824 .)
This being the case, neither Rogelio Mata nor Armando Mata has established, by a preponderance of the evidence, that trial counsel's performance was deficient for failing to object to or seek suppression of his statement to detectives. Similarly, neither has established there is a reasonable probability he would have obtained a more favorable result had such an objection or motion been made. Accordingly, neither has established a successful claim of ineffective assistance of counsel.
ISSUES RAISED SOLELY BY MARTINEZ
A. Conviction on Count 3 as Ex Post Facto Violation
Martinez was charged, in count 3 of the information, with an attempted violation of section 288.7, subdivision (a), on Va. The offense originally was alleged to have occurred between Va.'s birthday in 2007 and the day before her birthday in 2009. Apparently in response to Va.'s testimony that the incident with Martinez took place when she was "like about six, nine, around there," or "[l]ike around six or nine," the information was amended, at the prosecutor's request, to allege a date range from Va.'s birthday in 2004 (when Va. turned six) to the day before her birthday in 2008 (when she turned 10).
Subdivision (a) of section 288.7 provides: "Any person 18 years of age or older who engages in sexual intercourse or sodomy with a child who is 10 years of age or younger is guilty of a felony and shall be punished by imprisonment in the state prison for a term of 25 years to life."
Martinez now contends his conviction on count 3 must be reversed because it violates the ex post facto clauses of the federal and state Constitutions. We dealt with a similar situation in People v. Rojas (2015) 237 Cal.App.4th 1298, in which we stated:
"Our state and federal Constitutions prohibit ex post facto laws. [Citations.] Any law that applies to events occurring before its enactment and which disadvantages the offender either by altering the definition of criminal conduct or increasing the punishment for the crime is prohibited as ex post facto. [Citation.] Section 288.7 was enacted in 2006 and became effective on September 20 of that year. [Citation.] The statute created a new offense which imposes an indeterminate life sentence for sexual intercourse, sodomy, oral copulation, or sexual penetration of a child who is 10 years of age or younger. [Citations.] Therefore, any application of section 288.7 to conduct that occurred prior to September 20, 2006, is a violation of the state and federal ex post facto clauses.
" '[I]t is the prosecution's responsibility to prove to the jury that the charged offenses occurred on or after the effective date of the statute providing for the defendant's punishment.' [Citation.] Although Rojas did not make an ex post facto challenge below, respondent concedes that the claim may be raised for the first time on appeal and should be reviewed under the harmless error standard described in Chapman[, supra,] 386 U.S. [at page] 24. [Citations.] Since the jury was not asked to make a finding that Count 2 occurred after the effective date of section 288.7, its verdict 'cannot be deemed sufficient to establish the date of the offense unless the evidence leaves no reasonable doubt' that the conviction was based on an incident that occurred on or after September 20, 2006. [Citation.]" (People v. Rojas, supra, 237 Cal.App.4th at p. 1306; see People v. Hiscox (2006) 136 Cal.App.4th 253, 256, 261; see also People v. Farley (1996) 45 Cal.App.4th 1697, 1710.)
Likewise in the present case, the jury was not asked to make a finding that count 3 occurred after the effective date of section 288.7. Martinez did not make an ex post facto challenge in the trial court, but the Attorney General concedes the claim can be raised for the first time on appeal and is reviewed under the Chapman standard. The Attorney General also concedes the fact Martinez was convicted of an attempt, rather than the completed crime, does not change the analysis. One cannot attempt a crime if the offense attempted is not a crime. (See § 21a.) Accordingly, we must determine whether the evidence leaves any reasonable doubt the incident in which Martinez molested Va. took place on or after September 20, 2006. (People v. Rojas, supra, 237 Cal.App.4th at p. 1306.)
We have carefully examined the evidence, and conclude there is no reasonable doubt that any juror who found the incident happened would have further found it occurred when Va. was approximately nine years old, and therefore after the effective date of section 288.7. Va. was unsure of her age, and testified there was a four-year gap between the incident with Martinez and the next time someone — Rogelio Mata — inappropriately touched her. She also testified the first touching by Rogelio Mata occurred when she was in sixth grade and 11 years old. Va.'s testimony as to dates, ages, and time frames was often uncertain, however, particularly as to events in the more distant past, despite her attestation that her memory was better at the time of trial than when she first talked to detectives almost a year and a half earlier. In contrast, the record shows F. had a clear memory of Va. being nine years old when the incident occurred. Although at trial, F. disavowed that anything inappropriate happened, her denial lacked credibility in light of her recorded statement to Skrinde and her trial testimony that she thought Martinez was going to rape Va., she told him to be careful and not rape her, and she asked him if he pulled Va.'s pants down.
Martinez argues that to F., " 'approximately' " nine years old could have meant within a couple of years of Va.'s ninth birthday, i.e., when Va. was seven or eight. We reject this assertion, which is nothing more than speculation and is not supported by anything in the record.
This entire issue could have been avoided had the court or counsel recognized the problem created by the amendment to count 3's time frame, and had the jury then been instructed it could not convict Martinez on that count unless it found the offense was committed on or after September 20, 2006. (See People v. Hiscox, supra, 136 Cal.App.4th at p. 258.) Nevertheless, our examination of the record convinces us the evidence left no reasonable doubt the conviction was based on an incident that took place on or after that date. Accordingly, the conviction stands. (See People v. Rojas, supra, 237 Cal.App.4th at pp. 1306-1307.) B. Admission of Rogelio Mata's Statement
During the hearing on in limine motions, the prosecutor announced her intent to introduce the statements Rogelio Mata and Armando Mata gave to law enforcement. When the trial court asked if there were any Bruton/Aranda issues calling for sanitation or redaction of statements implicating a codefendant, the prosecutor responded that the only mention of codefendants was Rogelio Mata's denial that he witnessed any conduct involving Martinez, but there was nothing inculpatory. The court ordered that if any defendant's statement was introduced, there be no incriminating statements as to codefendants. The prosecutor stated she would have transcripts of the statements for defense counsel to review, and she was willing to redact anything they found objectionable.
The following portion of Skrinde's interview with Rogelio Mata was included, without objection from Martinez's trial attorney, when the recording was played for the jury:
" NS: [Skrinde] All right. What can you tell me about your father having sex with [Va.]?
" RM: [Rogelio Mata] Um, I wasn't even there.
" NS: But you know something about it?
" RM: My mom— the — she told me, but I (unintelligible) just walked away.
" NS: You don't think you're [sic] father has ever had sex with [Va.]?
" RM: No.
" NS: That's not true. I can see it right on your face.
" RM: Just one time, but— 'cause it— it was in my mom's room.
" NS: Okay, tell me about that.
" RM: I wa— I wasn't even sleeping in my mom's room, I was in my own room.
" NS: Right, but you know about it?
" RM: Because she told me.
" NS: Who told you?
" RM: My sister.
" NS: Mm-hmm, what'd she say.
" RM: And I didn't believe her. [¶] . . . [¶]
" NS: It's a hard thing to try and believe. What'd she say?
" RM: She told me that my dad touched me and my mom was there. My mom— my mom hit my dad. (unintelligible) I don't remember the day (unintelligible) [¶] . . . [¶]
" NS: Okay. How long ago did she tell you this?
" RM: 6 years ago. Or s— um, 7 or 6. Uh, she was in— she was in 6th grade.
" NS: Okay.
" RM: Or I can't remember, 6th or 5th.
" NS: Really?
" RM: Yeah.
" NS: Do you believe her now?
" RM: Yeah, I believe her now, 'cause—
" NS: Do you think your dad did that?
" RM: Yeah. (unintelligible) earlier they told me. [¶] . . . [¶]
" NS: Mm-hmm.
" RM: And that's why I believe them, I told my mom— I told my mom kick out my father but she didn't wanna listen to me.
" NS: What do you think about your dad?
" RM: I dunno, like right now she has—
" NS: She does?
" RM: Yeah.
" NS: Okay. You don't know?
" RM: No.
" NS: Not anymore?
" RM: No.
" NS: Did you see it before?
" RM: No."
At the conclusion of the playing of the recording, the trial court told the jury: "I need to admonish you that the statement can be only considered as to the person making the statement. Nothing in Rogelio[ Mata]'s statements are to be considered against either of the other two defendants."
The recording of Armando Mata's statement had already been played for the jury with a similar admonition from the court.
During jury instructions, the trial court told the jurors: "I have instructed you that during the trial certain evidence was admitted only against a specific defendant, you must not consider that evidence against any other defendant. [¶] You have heard evidence that the defendant Rogelio Mata Junior made a statement. You may consider that evidence only against him not any other defendant. [¶] The same is true as to Armando Mata who made a statement. You may consider that evidence only against him, not against any other defendant."
During her summation, the prosecutor told the jury: "[Va.] told you that she didn't tell anybody about [the incident with Martinez]. She didn't feel safe. She didn't feel that her mom was protecting her, she felt that her mom was blaming her. And that is exactly what was happening when she was 9 and that is exactly what was happening last week [when F. testified]. [¶] [Va.] didn't make this up. She told her brother when she was in 6th grade. You heard in Rogelio[ Mata]'s statement that [Va.] told me when she was in 6th grade about what my dad did, I didn't tell her but she told me. Now I believe her. This isn't something that she fabricated at the age of 13 or 14 or 15, or when she walked into court and testified in front of a bunch of strangers. It is something that she finally was able to tell because she felt that she had a little bit of safety."
Martinez now contends his trial attorney was ineffective for failing to object to admission of the portion of Rogelio Mata's statement that facially incriminated Martinez. While we agree counsel's performance was deficient, as he could have had no reasonable tactical purpose for failing to object, we conclude Martinez was not prejudiced by the omission.
"The Confrontation Clause of the Sixth Amendment, extended against the States by the Fourteenth Amendment, guarantees the right of a criminal defendant 'to be confronted with the witnesses against him.' The right of confrontation includes the right to cross-examine witnesses. [Citation.]" (Richardson v. Marsh (1987) 481 U.S. 200, 206.) Thus, "[t]he admission of testimonial statements offered against a defendant violates the Sixth Amendment confrontation clause unless the witness who made the statement is unavailable at trial and the defendant had a prior opportunity for cross-examination. [Citation.]" (People v. Lucas (2014) 60 Cal.4th 153, 249, disapproved on another ground in People v. Romero and Self (2015) 62 Cal.4th 1, 53-54, fn. 19; see Crawford v. Washington (2004) 541 U.S. 36, 68 (Crawford).) Statements made during police interrogations are "testimonial" for this purpose (Crawford, supra, at p. 68), and there seems little doubt that if called as a witness by Martinez, Rogelio Mata would have exercised his privilege against self-incrimination and so been rendered legally unavailable at trial (Evid. Code, § 240, subd. (a)(1); see, e.g., People v. Hollinquest (2010) 190 Cal.App.4th 1534, 1547).
"Ordinarily, a witness whose testimony is introduced at a joint trial is not considered to be a witness 'against' a defendant if the jury is instructed to consider that testimony only against a codefendant. This accords with the almost invariable assumption of the law that jurors follow their instructions . . . ." (Richardson v. Marsh, supra, 481 U.S. at p. 206.) However, " '[a] defendant is deprived of his Sixth Amendment right of confrontation when the facially incriminating confession of a nontestifying codefendant is introduced at their joint trial, even if the jury is instructed to consider the confession only against the codefendant.' [Citation.]" (People v. Montes (2014) 58 Cal.4th 809, 867; see Bruton, supra, 391 U.S. at pp. 135-136.) "A limiting instruction does not cure Aranda-Bruton error because courts have repudiated the premise that it is reasonably possible for a jury to follow an instruction to disregard evidence that expressly incriminates the defendant. [Citation.] A limiting instruction is not a substitute for defendant's constitutional right of cross-examination. [Citation.]" (People v. Song (2004) 124 Cal.App.4th 973, 982-983.)
In Aranda, supra, 63 Cal.2d at pages 528 through 530, the California Supreme Court reached the same conclusion as did the United States Supreme Court in Bruton, only on nonconstitutional grounds. (People v. Fletcher (1996) 13 Cal.4th 451, 455.)
"The class of inferentially incriminating statements under Bruton is limited to 'obvious' ones, 'inferences that a jury ordinarily could make immediately, even were the confession the very first item introduced at trial.' [Citation.]" (People v. Montes, supra, 58 Cal.4th at p. 867.) Rogelio Mata's extrajudicial statements concerning Martinez met this standard, and were also testimonial. The Attorney General appropriately concedes their admission into evidence violated Martinez's Sixth Amendment confrontation rights. Because Martinez's trial attorney failed to object, however, Martinez's confrontation claim — whether based on Crawford or Bruton — has not been preserved for appeal. (People v. Melendez (2016) 2 Cal.5th 1, 26; People v. Lopez (2013) 56 Cal.4th 1028, 1065, disapproved on another ground in People v. Rangel, supra, 62 Cal.4th at p. 1216; People v. Hajek and Vo, supra, 58 Cal.4th at p. 1206.)
Recognizing this, Martinez claims trial counsel was ineffective. Because we agree counsel could not have had any reasonable tactical purpose for failing to object or seek redaction of Rogelio Mata's statement, Martinez has established the first prong of such a claim. (See People v. Cunningham, supra, 25 Cal.4th at p. 1003; People v. Kipp, supra, 18 Cal.4th at p. 367.) We conclude, however, he has not shown the requisite reasonable probability of a more favorable outcome. (See People v. Cunningham, supra, at p. 1003.) First, the statement did not relate anything Rogelio Mata actually witnessed. Second, it merely corroborated Va.'s testimony, which was amply corroborated by F.'s statements to Skrinde. The prosecutor's allusion to the objectionable portion of the statement was in the context of her argument concerning why Va. should be believed, and was brief. Finally, although it has been held that where there is both Aranda-Bruton and Crawford error, a limiting instruction is insufficient to eliminate either (People v. Song, supra, 124 Cal.App.4th at p. 984), we are concerned with prejudice not under Chapman, but under Strickland. We feel it appropriate to take into account the fact the trial court gave multiple forceful limiting admonishments. Considering the totality of the circumstances, we conclude counsel's deficient performance did not render Martinez's convictions unreliable or his trial fundamentally unfair. (See In re Hardy, supra, 41 Cal.4th at p. 1019.) C. Va.'s Irrelevant Testimony
During her examination of Va., the prosecutor asked what Va. told Garcia and Skrinde when first reporting the sexual abuse. This took place:
"Q. [prosecutor] And the first time that you talked to [Garcia], how did you feel about talking to a police officer about these things?
"A. [Va.] Well, I thought it was gonna be like another story again and more people in jail now 'cause, I mean, like every year, like I would see my dad in jail or somebody in jail, and there was like always violence and physical abuse — well —
"Q. Were you scared to talk to the police at first about what happened to you?
Martinez now contends his right to a fair trial was violated by Va.'s interjection of this "irrelevant and highly inflammatory" information into her testimony. He argues the issue should not be deemed forfeited due to trial counsel's failure to object and request an admonition, but if we disagree, he claims ineffective assistance of counsel.
He does not claim prosecutorial misconduct, as he recognizes the record does not suggest the prosecutor intentionally elicited the testimony.
Only relevant evidence is admissible. (Evid. Code, § 350.) Evidence Code section 210 defines relevant evidence as "evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." "The test of relevance is whether the evidence tends 'logically, naturally, and by reasonable inference' to establish material facts such as identity, intent, or motive. [Citations.]" (People v. Garceau (1993) 6 Cal.4th 140, 177, overruled on another ground in People v. Yeoman (2003) 31 Cal.4th 93, 117-118.)
The Attorney General concedes the challenged portion of Va.'s testimony was irrelevant. Regardless of any potential for prejudice (see, e.g., People v. Williams (1997) 16 Cal.4th 153, 211; People v. Harris (1994) 22 Cal.App.4th 1575, 1580), Martinez's failure to object at trial precludes him from asserting this claim on appeal (People v. Maciel (2013) 57 Cal.4th 482, 528; People v. Kennedy (2005) 36 Cal.4th 595, 615, disapproved on another ground in People v. Williams (2010) 49 Cal.4th 405, 459; People v. Combs (2004) 34 Cal.4th 821, 847; People v. Hayes (1999) 21 Cal.4th 1211, 1261; see Evid. Code, § 353, subd. (a)).
Martinez's claim of ineffective assistance of counsel fares no better. The California Supreme Court has "long recognized that counsel's decision whether or not to object to inadmissible evidence is a matter of trial tactics. [Citation.] Because . . . great deference [is accorded to] trial counsel's tactical decisions, counsel's failure to object rarely provides a basis for finding incompetence of counsel. [Citations.] Here, nothing in the record suggests defense counsel lacked a rational tactical reason for not objecting to [the challenged] testimony. [Citation.]" (People v. Lewis (2001) 25 Cal.4th 610, 661.) For example, counsel reasonably could have preferred not to draw jurors' attention to Va.'s statement. (People v. Huggins (2006) 38 Cal.4th 175, 206; see People v. Bentley (1955) 131 Cal.App.2d 687, 690-691, disapproved on another ground in People v. White (1958) 50 Cal.2d 428, 430-431.) Because "the appellate record sheds no light on why trial counsel acted as he did; he was not asked to explain his performance; [and] although we may doubt that a satisfactory explanation could be provided, we are unable to conclude that it could not . . . we must reject defendant's point." (People v. Bell (1989) 49 Cal.3d 502, 546, fn. omitted.)
Martinez says the Attorney General is attempting to "have it both ways," and that either it was reasonable for counsel not to object — in which case the lack of objection should be excused — or, if counsel should have objected, it was unreasonable for him not to do so and he therefore was ineffective. Either way, Martinez says, we should reach the merits of the issue. The California Supreme Court has directly addressed — and rejected — Martinez's claim: "In response to the Attorney General's arguing both that some contentions are not cognizable because counsel failed to object, and that counsel [was] not ineffective, defendant states that the Attorney General 'cannot have it both ways.' We must either find the issue cognizable, he argues, or find counsel acted ineffectively. Defendant is incorrect. It is he who seeks to have it 'both ways.' He cannot fail to object at trial, where the issue could have been litigated and any error avoided, and also claim error on appeal. If counsel were truly ineffective, defendant can assert that ineffectiveness and obtain appropriate relief on that basis. But he cannot automatically obtain merit review of a noncognizable issue by talismanically asserting ineffective assistance of counsel." (People v. Riel (2000) 22 Cal.4th 1153, 1202.) D. Purported Sentencing Errors
The probation officer's report recommended imposition of the upper term on counts 2 (lewd act/penis to body) and 3 (attempted sodomy), with count 2 stayed pursuant to section 654. Imposition of a consecutive term on count 1 (lewd act/pulling down pants) was also recommended, on the ground that, although the act occurred during the same general incident as count 2, Martinez had a reasonable opportunity to desist from further action. Martinez's counsel requested imposition of the middle term, and argued that sentence on count 1 had to be stayed pursuant to section 654, as it was one continuous act and not a separate incident.
The trial court denied probation for Martinez, citing the following factors: (1) Martinez's actions precipitated the subsequent attacks on Va. by other family members; (2) Martinez showed no remorse; (3) Martinez's prior record of criminal conduct indicated a pattern of regular, increasingly serious criminal conduct; (4) Martinez's prior performance on probation was "awful"; (5) the likely effect of imprisonment on Martinez and his dependents was minimal; (6) Martinez took advantage of a position of trust; (7) there was a likelihood that if not in prison, Martinez would be a danger to others; (8) Martinez had a substantial criminal record; (9) the crime involved threats of great bodily harm; (10) the victim was particularly vulnerable; and (11) Martinez was a danger to society. The court designated count 3 as the principal term, and imposed the nine-year upper term for the reasons stated for denying probation. It found count 1 to be a "distinct and separate" act, and imposed a consecutive term of two years (one-third the midterm). It imposed the upper term of eight years on count 2, but stayed sentence pursuant to section 654. Accordingly, Martinez's total term was 11 years in prison.
1. Failure to Stay Sentence on Count 1
Martinez says the trial court erred by failing to stay sentence on count 1 pursuant to section 654. He argues the act underlying that conviction was merely the means for committing the lewd act charged in count 2 and attempted sodomy charged in count 3. His claim has merit.
We need not decide whether defendant's argument at sentencing encompasses the argument he makes on appeal. Because the erroneous failure to stay execution of a sentence under section 654 results in an unauthorized sentence, it can be raised for the first time on appeal. (People v. Scott (1994) 9 Cal.4th 331, 354 & fn. 17.)
Section 654, subdivision (a) provides in pertinent part: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." This statute "prohibits punishment for two crimes arising from a single, indivisible course of conduct. [Citation.]" (People v. Islas (2012) 210 Cal.App.4th 116, 129, citing People v. Latimer (1993) 5 Cal.4th 1203, 1208.) "Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor" (Neal v. State of California (1960) 55 Cal.2d 11, 19, disapproved on another ground in People v. Correa (2012) 54 Cal.4th 331, 334), not the temporal proximity of his or her offenses (People v. Capistrano, supra, 59 Cal.4th at p. 886). Whether a defendant harbored a separate intent and objective for each offense is a factual determination for the trial court, and its conclusion will be sustained on appeal if supported by any substantial evidence. (People v. Osband (1996) 13 Cal.4th 622, 730.) On review of this issue, we consider the evidence in the light most favorable to the judgment. (People v. Williamson (1979) 90 Cal.App.3d 164, 172.) On the other hand, "[a]lthough the question of whether defendant harbored a 'single intent' within the meaning of section 654 is generally a factual one, the applicability of the statute to conceded facts is a question of law. [Citation.]" (People v. Harrison (1989) 48 Cal.3d 321, 335 (Harrison).)
In Harrison, the California Supreme Court considered the application of section 654 to multiple sex offenses arising from a single course of criminal conduct. The court stated: "As we observed in People v. Perez (1979) 23 Cal.3d 545, 552-553 [(Perez)], section 654 does not bar multiple punishment simply because numerous sex offenses are rapidly committed against a victim with the 'sole' aim of achieving sexual gratification." (Harrison, supra, 48 Cal.3d at p. 325.) Perez explained: "To accept such a broad, overriding intent and objective to preclude punishment for otherwise clearly separate offenses would violate [section 654's] purpose to insure that a defendant's punishment will be commensurate with his culpability. . . . [¶] A defendant who attempts to achieve sexual gratification by committing a number of base criminal acts on his victim is substantially more culpable than a defendant who commits only one such act." (Perez, supra, 23 Cal.3d at pp. 552-553.)
While clarifying this point with respect to sex offenses, and finding no reason to distinguish, for purposes of section 654, "between defendants based solely upon the type or sequence of their offenses" (Harrison, supra, 48 Cal.3d at p. 337, italics omitted), the Harrison court reiterated the traditional statement of section 654 analysis: "[I]f all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once. [Citation.] [¶] If, on the other hand, defendant harbored 'multiple criminal objectives,' which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, 'even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.' [Citation.]" (Harrison, supra, at p. 335, italics added.)
Here, Martinez's act of pulling down Va.'s pants clearly was the means of accomplishing or facilitating his objective of committing sodomy. The evidence simply does not permit any other rational conclusion. (See Perez, supra, 23 Cal.3d at p. 553; compare People v. Alvarez (2009) 178 Cal.App.4th 999, 1006-1007 with People v. Laster (1971) 18 Cal.App.3d 381, 394.) Accordingly, Martinez could not be punished separately for pulling down Va.'s pants and for attempting to sodomize her.
This court's opinion in People v. Madera (1991) 231 Cal.App.3d 845 (Madera) is instructive. There, the issue was whether the defendant could be punished separately for rubbing the victim's penis, when that act was followed shortly by oral copulation and/or sodomy. (Id. at pp. 848, 854.) After reviewing Harrison and other pertinent cases, we stated:
"In our view, section 654 applies where the undefined sex act [charged as a violation of section 288] directly facilitates or is merely incidental to the commission of a defined lewd act. [Citation.] For example, section 654 would bar separate punishment for applying lubricant to the area to be copulated. In such a situation, the commission of the undefined act would have directly facilitated the commission of the defined act. In contrast, section 654 does not apply where, as [in Madera], the undefined act is 'preparatory' only in the general sense that it may be intended to sexually arouse either the perpetrator or the victim.
"Otherwise stated, the probability that an undefined sex act may occur in the same transaction as a defined sex act does not render it 'incidental,' nor does it insulate the undefined sex act from separate punishment. The distinction for punishment purposes between undefined acts designed generally to arouse and those intended directly to facilitate defined sex acts recognizes the relatively greater culpability of the defendant who commits the former. The reason for the distinction is readily evident. The undefined act is a separate insult to the body — and the spirit — of an unwilling victim or a victim who is statutorily protected by law because of his or her minority, or both." (Madera, supra, 231 Cal.App.3d at p. 855.)
The probation officer believed multiple punishment was permitted because Martinez had a "reasonable opportunity to desist from further action" between the time he pulled down Va.'s pants and his attempting to sodomize her. There are cases that hold multiple crimes are not one transaction — hence, section 654 does not apply — "where the defendant had a chance to reflect between offenses and each offense created a new risk of harm. [Citations.]" (People v. Felix (2001) 92 Cal.App.4th 905, 915; see, e.g., People v. Catelli (1991) 227 Cal.App.3d 1434, 1446-1447.) This exception does not override section 654's application where, as here, the act of pulling down pants was merely the means of accomplishing or facilitating the objective of sodomy, and the trial evidence does not show any appreciable separation — however brief — between acts. (See, e.g., People v. Catelli, supra, 227 Cal.App.3d at pp. 1446-1447; People v. Bright (1991) 227 Cal.App.3d 105, 110.)
The Attorney General cites People v. Siko (1988) 45 Cal.3d 820, 822-823, 825-826 for the proposition that section 654 precludes multiple punishment where defined crimes of which the defendant was convicted were the basis for a section 288 conviction. Siko does so hold. From this, however, the Attorney General appears to conclude the present case is different because the amended information identified a different basis for the lewd act charged in count 1 than the conduct that formed the basis for counts 2 and 3.
"Each individual act that meets the requirements of section 288 can result in a 'new and separate' statutory violation. [Citation.]" (People v. Scott, supra, 9 Cal.4th at pp. 346-347.) Thus, Martinez was permissibly charged with, and convicted of, multiple crimes arising from a single incident, and he does not contend otherwise. That multiple convictions can stand does not automatically mean separate punishment can be imposed for each of them, however. (See Harrison, supra, 48 Cal.3d at pp. 334-335; People v. Bright, supra, 227 Cal.App.3d at pp. 109-110.) The Attorney General's argument that it can be concluded Martinez pulled down Va.'s pants for the purpose of his own arousal, and not to facilitate any other form of sexual contact, is simply not reasonable in light of the evidence presented at trial concerning the incident.
Martinez's case must be remanded for resentencing, at which time sentence on count 1 must be stayed pursuant to section 654.
2. Reliance on Unsupported Aggravating Factors
"When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court. . . . The court shall select the term which, in the court's discretion, best serves the interests of justice. The court shall set forth on the record the reasons for imposing the term selected . . . ." (§ 1170, subd. (b).) Insofar as imposition of the upper term is concerned, "[a]n aggravating circumstance is a fact that makes the offense 'distinctively worse than the ordinary.' [Citations.] Aggravating circumstances include those listed in the sentencing rules, as well as any facts 'statutorily declared to be circumstances in aggravation' [citation] and any other facts that are 'reasonably related to the decision being made.' [Citation.]" (People v. Black (2007) 41 Cal.4th 799, 817; see Cal. Rules of Court, rules 4.408(a), 4.421.)
A trial court's sentencing decision is subject to review for abuse of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847.) "[A] trial court will abuse its discretion . . . if it relies upon circumstances that are not relevant to the decision or that otherwise constitute an improper basis for decision. [Citations.]" (Ibid.) " 'The circumstances utilized by the trial court to support its sentencing choice need only be established by a preponderance of the evidence. [Citations.]' [Citation.] Accordingly, in determining whether a trial court abused its discretion . . . , we consider, in part, whether there is sufficient, or substantial, evidence to support the court's finding that a particular factor was applicable. [Citation.]" (People v. Weaver (2007) 149 Cal.App.4th 1301, 1313, disapproved on another ground in People v. Cook (2015) 60 Cal.4th 922, 939; see People v. Searle (1989) 213 Cal.App.3d 1091, 1096.)
Martinez contends two of the factors in aggravation relied on by the court — Martinez's actions precipitated the subsequent attacks on Va. by other family members, and the crime involved threats of great bodily harm — were not supported by the record. As Martinez acknowledges, however, defense counsel failed to object to the trial court's reliance on these factors, and such claims cannot be raised for the first time on appeal. (People v. Scott, supra, 9 Cal.4th at p. 356.) Not surprisingly, Martinez says the failure to object constituted ineffective assistance of counsel.
Strickland applies to the alleged deficient performance of defense counsel at a sentencing hearing. (People v. Jacobs (2013) 220 Cal.App.4th 67, 77.) We find no prejudice under that standard, because Martinez has failed to demonstrate a reasonable probability he would have received a lesser sentence had defense counsel objected to the two challenged factors. In imposing the upper term, the trial court cited a multitude of other factors in aggravation that are not challenged by Martinez. Those reasons amply support the trial court's sentencing choice. (See People v. Price (1991) 1 Cal.4th 324, 492; People v. Wilson (2008) 164 Cal.App.4th 988, 992; People v. Jones (1981) 126 Cal.App.3d 308, 318; cf. People v. Flores (1981) 115 Cal.App.3d 924, 927.) Moreover, at one point during sentencing, the trial court stated: "What was interesting during the trial, watching [Va.] testify and the others, it's — he shows no remorse whatsoever. I wish I could give him more time than I will. I just — he's a predator. He's a bad man." Clearly, a remand for resentencing would be a waste of judicial resources. The trial court determined imposition of the upper term was appropriate, and stated ample valid reasons to support its sentence choice. We have no doubt it would again impose the same term, even absent consideration of the two invalid factors.
ISSUES RAISED SOLELY BY ROGELIO MATA
A. Sufficiency of the Evidence
Rogelio Mata contends there was insufficient evidence his offenses were accomplished by means of force, violence, duress, menace, or threat; hence, his convictions for violating subdivision (b) of section 288 should be modified to violations of subdivision (a) of that statute, and he should be resentenced accordingly. The Attorney General says there was substantial evidence the lewd acts were accomplished by duress.
The applicable legal principles are settled. The test of sufficiency of the evidence is whether, reviewing the whole record in the light most favorable to the judgment below, substantial evidence is disclosed such that a reasonable trier of fact could find the essential elements of the crime beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578; accord, Jackson v. Virginia (1979) 443 U.S. 307, 319.) Substantial evidence is that evidence which is "reasonable, credible, and of solid value." (People v. Johnson, supra, 26 Cal.3d 557 at p. 578.) An appellate court must "presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Reilly (1970) 3 Cal.3d 421, 425.) An appellate court must not reweigh the evidence (People v. Culver (1973) 10 Cal.3d 542, 548), reappraise the credibility of the witnesses, or resolve factual conflicts, as these are functions reserved for the trier of fact (In re Frederick G. (1979) 96 Cal.App.3d 353, 367). Furthermore, an appellate court can only reject evidence accepted by the trier of fact when the evidence is inherently improbable and impossible of belief. (People v. Maxwell (1979) 94 Cal.App.3d 562, 577.) "If the circumstances reasonably justify the [trier of fact's] findings, reversal is not warranted merely because the circumstances might also be reasonably reconciled with a contrary finding. [Citations.]" (People v. Redmond (1969) 71 Cal.2d 745, 755.) Instead, reversal is warranted only if "it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' [Citation.]" (People v. Bolin (1998) 18 Cal.4th 297, 331.)
Section 288, subdivision (b)(1) specifies the punishment for any person who commits a lewd or lascivious act on a child under 14 "by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person . . . ." The level of force necessary to support a conviction under this section must "be 'substantially different from or substantially greater than that necessary to accomplish the lewd act itself.' " (People v. Soto (2011) 51 Cal.4th 229, 242.)
The Attorney General impliedly concedes there was no substantial evidence Rogelio Mata used force against Va. We agree. Accordingly, we look for evidence of duress.
"[D]uress," as used in the context of section 288, subdivision (b)(1), means " 'a direct or implied threat of force, violence, danger, hardship or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to (1) perform an act which otherwise would not have been performed or, (2) acquiesce in an act to which one otherwise would not have submitted.' [Citation.]" (People v. Leal (2004) 33 Cal.4th 999, 1004, italics omitted.) This definition "is objective in nature and not dependent on the response exhibited by a particular victim." (People v. Soto, supra, 51 Cal.4th at p. 246.) "Because duress is measured by a purely objective standard, a jury could find that the defendant used threats or intimidation to commit a lewd act without resolving how the victim subjectively perceived or responded to this behavior. Consistent with the language of section 288 and the clear intent of the Legislature, the focus must be on the defendant's wrongful act, not the victim's response to it." (Ibid., fn. omitted.)
Here, Va. testified Rogelio Mata, who was six or seven years older than her and larger physically, blocked her exit from his room with bricks, threatened to tell their parents something if Va. told about the molestations, threatened to hurt Va., and would lift his fist or point a BB rifle at her and threaten to shoot. She testified she was scared of him. Considering, as we must, all the attendant circumstances (People v. Veale (2008) 160 Cal.App.4th 40, 46; People v. Cardenas (1994) 21 Cal.App.4th 927, 940; People v. Pitmon (1985) 170 Cal.App.3d 38, 51, disapproved on another ground in People v. Soto, supra, 51 Cal.4th at p. 248, fn. 12), we conclude ample evidence supports a finding of duress (see, e.g., People v. Garcia (2016) 247 Cal.App.4th 1013, 1024; People v. Veale, supra, 160 Cal.App.4th at pp. 46-47; People v. Senior (1992) 3 Cal.App.4th 765, 775- 776; People v. Schulz (1992) 2 Cal.App.4th 999, 1005; People v. Superior Court (Kneip) (1990) 219 Cal.App.3d 235, 238-239).
Rogelio Mata admits there was evidence of duress "as a general proposition," but says the prosecution "failed in its burden to link or even suggest that a particular act of duress accompanied each of the ten specifically charged offenses." He suggests the failure to do so amounted to a failure to prove each element of the offense beyond a reasonable doubt.
Rogelio Mata has cited no authority for the proposition a particular act of duress must be specifically linked to each charged offense, and we have found none. This makes sense: It is not the law. (See, e.g., People v. Garcia, supra, 247 Cal.App.4th at p. 1024 [after the defendant repeatedly threatened to harm the victim's mother during earliest acts of abuse, all subsequent acts of abuse were facilitated by duress engendered by said threats]; People v. Senior, supra, 3 Cal.App.4th at p. 776 [first molestation involved threat to hit the victim if she resisted and to break up family unit if she told; such threats, underlined by physical control during later molestations, constituted ample evidence later molestations accomplished by duress].) B. Imposition of Full Consecutive Sentences
In People v. Hecker (1990) 219 Cal.App.3d 1238, 1250, the appellate court rejected the notion that the accomplishment of some acts by means of force meant the defendant accomplished all acts by means of force. Force, however, is not the same as duress.
Without factual analysis, the probation officer's report asserted the imposition of full and consecutive terms for each count was mandatory pursuant to section 667.6, subdivision (d). Finding in part that Rogelio Mata "continually molested and abused his younger sister with force," the trial court imposed a consecutive aggravated term of eight years on each count, for a total term of 80 years in prison. Rogelio Mata now contends there was insufficient evidence the offenses were committed on separate occasions, as required for sentencing under subdivision (d) of section 667.6; hence, he says, the matter must be remanded so the trial court can exercise its discretion whether to sentence him pursuant to subdivision (c) of that statute.
Section 667.6 provides, in pertinent part:
"(c) In lieu of the term provided in Section 1170.1, a full, separate, and consecutive term may be imposed for each violation of an offense specified in subdivision (e) if the crimes involve the same victim on the same occasion. . . .
"(d) A full, separate, and consecutive term shall be imposed for each violation of an offense specified in subdivision (e) if the crimes involve separate victims or involve the same victim on separate occasions.
"In determining whether crimes against a single victim were committed on separate occasions under this subdivision, the court shall consider whether, between the commission of one sex crime and another, the defendant had a reasonable opportunity to reflect upon his or her actions and nevertheless resumed sexually assaultive behavior. Neither the duration of time between crimes, nor whether or not the defendant lost or abandoned his or her opportunity to attack, shall be, in and of itself, determinative on the issue of whether the crimes in question occurred on separate occasions. [¶] . . . [¶]
"(e) This section shall apply to the following offenses: [¶] . . . [¶]
"(5) Lewd or lascivious act, in violation of subdivision (b) of Section 288."
Section 667.6, subdivision (d) was amended, in 1986, to add the test for determining whether crimes were committed on separate occasions. (Stats. 1986, ch. 1431, § 2.) The express purpose of the amendment was to abrogate the California Supreme Court's decision in People v. Craft (1986) 41 Cal.3d 554, 562, which held that crimes were committed on separate occasions only when they were separated by a period in which the defendant lost or abandoned his opportunity to continue his attack. (People v. Jones (2001) 25 Cal.4th 98, 112; People v. Deloza (1998) 18 Cal.4th 585, 597.)
The record here does not reveal why the trial court concluded Rogelio Mata's offenses all took place on separate occasions. We surmise it was following the recommendation contained in the probation officer's report, which likewise did not reveal reasons for the conclusion sentencing under subdivision (d) of section 667.6 was mandatory. It is clear, however, that the trial court intended to impose sentence under subdivision (d), not subdivision (c), of the statute. That being the case, it did not need to give a statement of reasons. (People v. Craft, supra, 41 Cal.3d at p. 559; but see People v. Irvin (1996) 43 Cal.App.4th 1063, 1070, 1072 [statement by trial court did not provide sufficient analysis of facts to allow appellate court to determine why trial court concluded all sex offenses occurred on separate occasions; on remand, if trial court decided to sentence under § 667.6, subd. (d), factual explanation supporting finding of separate occasions for each count sentenced under said subdivision was required].) If Rogelio Mata is correct that the evidence is insufficient to establish the offenses of which he was convicted were committed on separate occasions, the sentence was unauthorized, and the issue is reviewable on appeal despite his lack of objection below. (People v. Garza (2003) 107 Cal.App.4th 1081, 1091.)
"By statute, the trial court at sentencing is empowered to make the determination whether multiple sexual offenses occurred on separate occasions for purposes of imposing full consecutive terms. [Citations.] These findings are typically based on burden of proof by a preponderance of the evidence. [Citation.]" (People v. Groves (2003) 107 Cal.App.4th 1227, 1230.) Under the substantial evidence test applicable to an appellate court's review of findings made under the preponderance of the evidence standard, the appellate court reviews the record in the light most favorable to the challenged finding to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could make the finding by a preponderance of the evidence. The appellate court "resolve[s] all conflicts in the evidence and questions of credibility in favor of the [finding], and . . . indulge[s] every reasonable inference the [trier of fact] could draw from the evidence. [Citation.]" (People v. Wong (2010) 186 Cal.App.4th 1433, 1444.)
The preponderance of the evidence standard means more likely than not. (People v. Gregerson (2011) 202 Cal.App.4th 306, 319.) --------
"Once a trial judge has found under section 667.6, subdivision (d), that a defendant committed offenses on separate occasions, we may reverse only if no reasonable trier of fact could have decided the defendant had a reasonable opportunity for reflection after completing an offense before resuming his assaultive behavior. [Citations.]" (People v. Garza, supra, 107 Cal.App.4th at p. 1092; accord, People v. King (2010) 183 Cal.App.4th 1281, 1325.) A finding the defendant committed the sex offenses on separate occasions "does not require a change in location or an obvious break in the perpetrator's behavior." (People v. Jones, supra, 25 Cal.4th at p. 104; accord, People v. Irvin, supra, 43 Cal.App.4th at p. 1070.)
In the present case, Va. clearly testified to enough separate occurrences to support a finding of separate occasions. As Rogelio Mata points out, however, there had to be sufficient evidence to support a finding that each of the charged acts of which he was convicted was committed on a separate occasion within the meaning of section 667.6, subdivision (d). As he also points out, Va.'s testimony was quite vague in this respect. We must take into account not just her testimony, however, but also Rogelio Mata's statement to law enforcement, which was much more detailed.
Having considered all the evidence, we conclude it is sufficient to support a finding of separate occasions with regard to some, but not all, of the charged counts. In this regard, what we said in People v. Irvin, supra, 43 Cal.App.4th at page 1071, is instructive: "A [forcible] sexual assault cannot and should not be considered in the same light as sexual acts shared between willing participants. Consensual sex may include times when the participants go back and forth between varied sex acts, which they consider to be one sexual encounter. By contrast, a forcible . . . sexual assault made up of varied types of sex acts committed over time against a victim, is not necessarily one sexual encounter. . . . Sexual acts, such as those committed by defendant, are the antithesis of a consensual sexual encounter and should not be viewed the same way. Therefore, at sentencing a trial court could find a defendant had a 'reasonable opportunity to reflect upon his or her actions' even though the parties never changed physical locations and the parties 'merely' changed positions."
Based in large part on Rogelio Mata's statement, we conclude the evidence is sufficient to support the trial court's implied finding count 4 (penis to vagina), count 5 (penis to vagina), and count 7 (penis to buttocks) were committed on separate occasions within the meaning of section 667.6, subdivision (d). Rogelio Mata described such offenses as occurring on different occasions. We further conclude the evidence was sufficient to support the finding count 6 (penis to vagina) and count 8 (penis to buttocks) were committed on separate occasions. In his statement Rogelio Mata described an occasion on which he put his penis in Va.'s buttocks and then in her vagina. Va. testified that when Rogelio Mata put his penis to her vagina, she would be lying on her back with him on top of her. When he put his penis to her buttocks, either she would be lying on her side with him behind her, or she would be on her hands and knees with him behind her. A rational trier of fact could conclude Rogelio Mata had a reasonable opportunity to reflect on his actions between sex acts, since he and Va. changed positions.
Although the evidence is sufficient to show count 9 (penis to buttocks) and count 13 (finger to vagina) occurred on a different occasion than the other charged acts, it is insufficient to show they were committed on separate occasions from each other. Rogelio Mata described an occasion on which Va. spent the night in his room. While she was on her stomach, he touched her, put his fingers inside her vagina, and put his penis in her buttocks. Without further evidence concerning any break between acts or change of position or the like, no rational trier of fact could conclude it is more likely than not that Rogelio Mata had a reasonable opportunity to reflect on his actions between acts.
Similarly, the evidence is insufficient to show counts 10, 11, and 12 (all of which alleged mouth to breast as the basis for the charged forcible lewd act) were committed on separate occasions from all the other counts. Rogelio Mata did not mention these acts in his statement, and Va.'s testimony on the issue is simply insufficient to permit a conclusion one way or the other. Accordingly, no rational trier of fact could conclude it is more likely than not that the acts that formed the basis for counts 10 through 12 were committed on separate occasions, within the meaning of section 667.6, subdivision (d), from all the other charged acts.
In light of the foregoing, we are constrained to vacate the sentence on counts 9 through 13 and remand the matter for resentencing on those counts. As Rogelio Mata recognizes, upon remand, the trial court will be permitted to exercise its discretion whether to impose sentence on those counts pursuant to subdivision (c) of section 667.6. If the trial court decides to impose full, separate, and consecutive terms for the counts that the evidence does not show occurred on a separate occasion, it must provide a statement of reasons for this sentencing choice that is separate from, but may repeat, the reasons given for imposing consecutive sentences. (Cal. Rules of Court, rule 4.426(b); see People v. Irvin, supra, 43 Cal.App.4th at p. 1072.)
ISSUE RAISED SOLELY BY ARMANDO MATA
Armando Mata was convicted, in counts 14 and 15, of violating section 288.7, subdivision (b). Insofar as is relevant here, that statute provides: "(b) Any person 18 years of age or older who engages in . . . sexual penetration . . . with a child who is 10 years of age or younger is guilty of a felony . . . ." The statute applies to child victims "younger than 10 years of age and children who have reached their 10th birthday but who have not yet reached their 11th birthday," i.e., children " 'under 11 years of age.' " (People v. Cornett (2012) 53 Cal.4th 1261, 1264.)
Armando Mata now contends the convictions must be reversed because there was insufficient evidence Va. was 10 years old or younger at the time of the offenses. We disagree.
Counts 14 and 15 were based on Armando Mata penetrating Va.'s vagina multiple times with his finger during the trip to the beach in Santa Monica. On direct examination, Va. testified she was small and still in elementary school. Asked how old she was at the time, she responded: "I would — 11." On cross-examination, she testified she was 12 when Armando Mata first "confront[ed]" her. Asked if that was when she was in Santa Monica, she said, "No, 'cause, I mean, like that's when he started touching me more." When Armando Mata's attorney asked if she was telling the jury Armando Mata had touched her before, Va. responded: "Yes, 'cause, I mean, like when I was at Santa Monica, that's when we were at the beach, and that was like the first time he did that to me and then more things occurred." During cross-examination about another incident involving Armando Mata, Va. was asked if she remembered the year the other incident took place. She answered, "2013." Asked if she was sure, she replied, "Like 2012, 2013." She then agreed she was not sure.
During redirect examination, the following took place:
"Q. [prosecutor] Okay. And I want to ask you about Santa Monica. [¶] You said that you were elementary school age?
"A. [Va.] Yes.
"Q. When you were in Santa Monica. [¶] Do you remember about which grade you were in at that time?
"A. Almost like high school, junior but — I mean, sorry —
"Q. Junior high school?
"A. Like mid, yeah, I'm not really sure.
"Q. Okay. So do you remember about how old you were at that time when you went down for your birthday in Santa Monica?
Va. then stated she thought it would help her remember how old she was if she looked at a transcript of the recorded statement she gave to Garcia. After she reviewed the transcript, this took place:
"Q. Does that help you remember how old you were?
"Q. When you were in Santa Monica and Armando put his fingers in your vagina —
"Q. — how old were you?
"A. Ten." (Italics added.)
The legal principals applicable to a challenge to the sufficiency of the evidence to sustain a conviction are set out ante, at pages 39 through 40. While a jury may not rely on unreasonable inferences, and an inference is unreasonable if it is based only on speculation (People v. Hughes (2002) 27 Cal.4th 287, 365), " '[c]onflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence.' [Citation.]" (People v. Lee (2011) 51 Cal.4th 620, 632.)
As demonstrated by the exchanges quoted above, Va.'s testimony was not a model of clarity. Moreover, she often gave definite numbers — whether for age, grade, or year — even when in reality she was not sure. Nevertheless — and contrary to Armando Mata's representation of the record — she testified not that she recalled telling the detective she was 10 at the time of the incident, but rather she testified the transcript of her statement helped her remember how old she was; she was 10. It was for the jury to resolve the various inconsistencies and conflicts in Va.'s testimony, including her statement that she had a better memory at trial than a couple years earlier.
As we previously observed, reversal of a judgment for insufficient evidence is warranted only if "it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' [Citation.]" (People v. Bolin, supra, 18 Cal.4th at p. 331.) This court can only reject evidence accepted by the jury when the evidence is inherently improbable and impossible of belief. (People v. Maxwell, supra, 94 Cal.App.3d at p. 577.) Va.'s testimony "was not as a whole incapable of being believed. It was the [jury's] function to resolve the inconsistencies and contradictions in her testimony, and, as noted, on appeal we resolve all inferences and inconsistencies in favor of the [jury's] findings. [Citations.]" (People v. Cortes (1999) 71 Cal.App.4th 62, 73-74.) "If the circumstances reasonably justify the [trier of fact's] findings, reversal is not warranted merely because the circumstances might also be reasonably reconciled with a contrary finding. [Citations.]" (People v. Redmond, supra, 71 Cal.2d at p. 755.)
We have examined the evidence as a whole. We conclude substantial evidence supports the challenged convictions.
Martinez and Armando Mata contend they were deprived of their rights to a fair trial and due process by the cumulative effect of multiple errors. Few, if any, trial errors were preserved for appeal. We have examined those errors and the instances in which trial counsels' performances arguably were deficient, and find that none increased the impact of any other, nor did their cumulative effect deprive either defendant of a fair trial or due process of law. (See, e.g., People v. Zaragoza (2016) 1 Cal.5th 21, 60; People v. Abel (2012) 53 Cal.4th 891, 936.)
With respect to Rogelio Mata Martinez, the judgment of conviction is affirmed. The sentence is vacated and the matter is remanded to the trial court with directions to resentence Rogelio Mata Martinez in accord with part II D. 1. of the Discussion, ante.
With respect to Rogelio Mata, the sentence on counts 9 through 13 is vacated, and the matter is remanded to the trial court with directions to resentence Rogelio Mata in accord with part III B. of the Discussion, ante. In all other respects, the judgment is affirmed.
With respect to Armando Mata, the judgment is affirmed in its entirety.
DETJEN, J. WE CONCUR: /s/_________
HILL, P.J. /s/_________