Filed 7/21/14 P. v. Ortiz C2/7

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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     SECOND APPELLATE DISTRICT
                                                DIVISION SEVEN


THE PEOPLE,                                                          B246524
         Plaintiff and Respondent,
                                                                     (Los Angeles County
                                                                     Super. Ct. No. KA097689)
         v.
JORGE ALBERTO ORTIZ,
         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of Los Angeles County, George
Genesta, Judge. Affirmed in part; reversed in part and remanded with directions.

         Carlo Andreani, under appointment by the Court of Appeal, for Defendant and
Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Margaret E. Maxwell and Yun K.
Lee, Deputy Attorneys General, for Plaintiff and Respondent.



                                       __________________________
       Jorge Alberto Ortiz sexually molested a six-year-old neighbor girl.1 Following a
court trial he was convicted of six felony sex offenses and sentenced to an indeterminate
state prison term of 95 years to life, plus a determinate term of eight months. On appeal
Ortiz contends he was denied his constitutional right to effective assistance of counsel
because his attorney elected not to present a closing argument. He also argues the trial
court erred in sentencing him to a consecutive term on each count. We reject Ortiz’s
claims but remand the matter for resentencing as to count 3, using a minor as a model for
a sexual act, because the court imposed an unauthorized sentence.
                  FACTUAL AND PROCEDURAL BACKGROUND
       1. The Charges
       Ortiz was charged in an amended information with three counts of oral copulation
or sexual penetration of a child who is 10 years of age or younger (Pen. Code, § 288.7,
subd. (b), counts 1, 2, and 6),2 two counts of sexual intercourse or sodomy with a child
who is 10 years of age or younger (§ 288.7, subd. (a), counts 4 and 5), and one count of
using a minor as a model for sex acts (§ 311.4, subd. (c), count 3). Ortiz pleaded not
guilty. Trial was to the court.
       2. The Trial
       According to the evidence at trial Ivy, then six years old, moved into an apartment
in Pomona with her great uncle, uncle and brother in December 2010. Ortiz, a neighbor,
lived downstairs in the same apartment building. Once when they were alone, Ortiz
photographed Ivy while she was naked.
       In response to a report of child sexual abuse in 2012, Pomona Police Officer
Richard Sprague went to Ivy’s apartment and was given a digital camera by Ortiz’s
grandson, who also pointed out Ortiz to Sprague. The camera contained images of Ortiz
and Ivy; a small girl’s genitals; Ivy pulling up her skirt; and Ivy with her pants lowered,
exposing her genitals. The camera also contained a video recording depicting Ortiz and


1
       The child victim was identified at trial only as “Ivy Doe.”
2
       Statutory references are to the Penal Code.


                                              2
Ivy engaged in sex acts. The photographs were introduced into evidence, and the video
recording was played in court.
       Following the People’s presentation of evidence, defense counsel made a motion
to dismiss (§ 1118.1), which the trial court denied. Ortiz neither testified nor introduced
other evidence in his defense. At the court’s suggestion the prosecutor waived closing
argument. Defense counsel did as well. The court found Ortiz guilty of all charges.
       While discussing scheduling for the sentencing hearing, defense counsel asked the
court to reconsider whether the People had proved the element of penetration beyond a
reasonable doubt as to the three counts of violating section 288.7, subdivision (b).
Counsel argued Ivy never testified there was penetration. Although the video recording
showed some sexual activity, counsel maintained it was questionable whether penetration
had occurred.
       The court explained its findings based on its review of the video recording: “It
was clear to the court. The court could see the defendant’s penis, and his penis was in a
position exposed and presented to her vaginal area where he had her legs up and he was
leaning against her. At different times she indicated that it hurt and that he was engaging
in thrusting motions while he had her in that position, and it was clear as he withdrew at
different times, the court could still see his exposed penis, that he was stroking it at times
after he withdrew and then engaged in the same conduct as he pushed up against her
again. And she made comments about what he was doing, and it was clear based on his
thrusting motions and the position he had her that it was clear that penetration was taking
place.”
       3. The Sentencing Hearing
       At sentencing defense counsel urged the trial court to consider the interaction
between Ortiz and Ivy as “a single occasion” involving one victim during “a short period
of time, maybe about 15, 20 minutes . . . .” The prosecutor argued the video showed at
least five separate sex acts. Ortiz would “start an act. He would get interrupted. He
would start a different act, and that went on throughout the 20 minutes. There was time



                                              3
for reflection between acts. For that reason, your Honor, I believe it is clear that these
[counts] should be sentenced separately.”
       The trial court sentenced Ortiz to an aggregate state prison term of 95 years to life,
consisting of three consecutive terms of 15 years to life for oral copulation or sexual
penetration of a child who is 10 years of age or younger (counts 1, 2 and 6) and two
consecutive terms of 25 years to life for sexual intercourse or sodomy with a child who is
10 years of age or younger (counts 4 and 5); plus a consecutive term of eight months
(one-third the middle term of two years) for using a minor as a model for sex acts
(count 3).3
       Explaining its sentencing decision, the trial court stated, “At the time the court
made its findings and found the defendant guilty beyond a reasonable doubt, the court
also made characterizations from one count or crime to the other. In fact, as one of the
sexual intercourse events were [sic] taking place between the defendant and the six-year-
old, the six-year-old brought to his attention that she believed there was someone outside.
He stopped. They both looked, and they closed the curtains. There was [sic] a lot of
conversations between the minor and the defendant about different sex acts and the
changing of positions. It was clear to this court that – that I would characterize not a
single occasion, but a single time frame in which multiple crimes were committed. The
theory between the multiple crimes or multiple sex acts between one to the other is that
the defendant had reasonable opportunity to reflect on his actions. Nonetheless [he]
resumed his sexual conduct with this six-year-old. The video is the best evidence for that
in terms of the defendant’s acts from one act to the other, the circumstances from one act
to the other, be it interruptions because of fear of detection or interruptions based upon a
change of position or interruptions based upon going from one act to another act, after
discussion or suggestions. This was one of the most egregious events that this court has
experienced in my judicial career. I’m usually presented with graphic testimony, but here

3
        The abstract of judgment omits the consecutive sentence of 15 years to life the
trial court orally pronounced on count 6. Following resentencing on remand as directed
in this opinion, this clerical error should be corrected in the new abstract of judgment.


                                              4
I was presented with graphic videos that left nothing to the imagination or what was
occurring could be in dispute.”
                                        DISCUSSION
       1. Ortiz Has Not Demonstrated His Counsel Was Ineffective
               a. Governing law
       To establish ineffective assistance of counsel under either the federal or state
constitutional guarantee, a defendant must show ““‘that counsel’s representation fell
below an objective standard of reasonableness under prevailing professional norms, and
that counsel’s deficient performance was prejudicial, i.e., that a reasonable probability
exists that, but for counsel’s failings, the result would have been more favorable to the
defendant.””’ (In re Crew (2011) 52 Cal.4th 126, 150; see Strickland v. Washington
(1984) 466 U.S. 668, 694 [104 S.Ct. 2052, 80 L.Ed.2d 674].) “‘The burden of sustaining
a charge of inadequate or ineffective representation is upon the defendant. The proof . . .
must be a demonstrable reality and not a speculative matter.’” (People v. Karis (1988)
46 Cal.3d 612, 656.)
       There is a presumption the challenged action or inaction “‘might be considered
sound trial strategy’” under the circumstances. (Strickland v. Washington, supra,
466 U.S. at pp. 689, 694; accord, People v. Gamache (2010) 48 Cal.4th 347, 391.) On a
direct appeal a conviction will be reversed for ineffective assistance of counsel only when
the record demonstrates there could have been no rational tactical purpose for counsel’s
challenged act or omission. (Gamache, at p. 391; People v. Anderson (2001) 25 Cal.4th
543, 569.)
       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, which
we expect will often be so, that course should be followed.’” (In re Champion (2014)
58 Cal.4th 965, 1007, quoting Strickland v. Washington, supra, 466 U.S. at p. 697; In re
Alvernaz (1992) 2 Cal.4th 924, 945; People v. Mesa (2006) 144 Cal.App.4th 1000, 1008.)


                                                5
It is not sufficient to show the alleged errors may have had some conceivable effect on
the trial’s outcome; the defendant must demonstrate a “reasonable probability” that
absent the errors the result would have been different. (Champion, at p. 1007; Mesa at
p. 1008.)
              b. Ortiz was not prejudiced by his counsel’s waiver of closing argument
       Although closing argument may serve an important function at trial, defense
counsel may waive closing argument as a matter of tactics without that decision
constituting ineffective assistance. (See Bell v. Cone (2002) 535 U.S. 685, 701-702 [122
S.Ct. 1843, 152 L.Ed.2d 914] [waiver of closing argument may be a reasonable tactical
decision about which competent lawyers might disagree]; People v. Diggs (1986)
177 Cal.App.3d 958, 970 [waiver of closing argument in appropriate case is matter of
sound trial strategy].)4 Here, the record is silent on the reasons for counsel’s decision to
waive closing argument. Nonetheless, it is highly plausible that defense counsel
concluded Ortiz would be better served if neither she nor the prosecutor made a closing
argument and that, if she had proceeded to make an argument, the prosecutor would then
have asserted the right to a final rebuttal. That would be a reasonable judgment call
under the circumstances.
       In any event, Ortiz has failed to demonstrate any likelihood, let alone a reasonable
probability, he was prejudiced by his counsel’s decision. This was a one-day court trial.
The factual issues were simple. The evidence consisted of the brief testimony of four
witnesses, several photographs and a 20-minute video recording. The testimony was
straightforward and uncontroverted. There is simply no reason to believe closing
argument would have led it to a different conclusion as to Ortiz’s guilt. Moreover,
counsel did ask the court to reconsider whether the video recording was sufficient

4
       The mischaracterization of the issue by appellate counsel for Ortiz as one
involving denial of Ortiz’s right to counsel at a critical state of the trial, rather than
simply a claim of ineffective assistance, is, at best, a gross distortion of the record. (See
generally Rules Prof. Conduct, rule 5-200(B) [in presenting a matter to a tribunal, a
member of the State Bar shall not seek to mislead the court by an artifice or false
statement of fact or law].)


                                              6
evidence of penetration. In response, the court explained what it saw and how that
evidence proved penetration. Thus, notwithstanding the initial waiver of closing
argument, Ortiz had the full benefit of his counsel’s discussion of the most important
factual issue with the court.
       2. Ortiz Was Properly Sentenced to Consecutive Indeterminate Terms
       Section 288.7, subdivision (a), provides that any person 18 years or older who
engages in sexual intercourse or sodomy with a child who is 10 years of age or younger is
subject to a prison term of 25 years to life. Section 288.7, subdivision (b), provides that
any person who engages in oral copulation or sexual penetration with a child who is
10 years of age or younger is subject to a prison term of 15 years to life. The trial court
has broad discretion in deciding whether to impose sentences for multiple convictions
under section 288.7 concurrently or consecutively. (See § 669; People v. Monge (1997)
16 Cal.4th 826, 850-851.) That discretion is guided by rule 4.424 of the California Rules
of Court, which identifies specific criteria affecting the sentencing decision, including the
presence of circumstances in aggravation or mitigation as identified in other provisions of
the Rules of Court.
       One factor in aggravation may support a series of consecutive sentence. (See
People v. Scott (1994) 9 Cal.4th 331, 350, fn. 12 [“The court cannot rely on the same fact
to impose both the upper term and a consecutive term. [Citations.] However, one
relevant and sustainable fact may explain a series of consecutive sentences.”]; see also
People v. Osband (1996) 13 Cal.4th 622, 728-729.)
       Even though a defendant may have committed multiple violations of section
288.7, however, section 654 prohibits separate punishment for those offenses if they
arose from a series of acts constituting an indivisible course of criminal conduct. (People
v. Rodriguez (2009) 47 Cal.4th 501, 507; People v. Latimer (1993) 5 Cal.4th 1203,
1206.)5 “‘Whether a course of criminal conduct is divisible and therefore gives rise to

5
       Section 654, subdivision (a), provides, “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

                                              7
more than one act within the meaning of section 654 depends on the intent and objective
of the actor. If all the offenses were incident to one objective, the defendant may be
punished for any one of such offenses, but not for more than one.’” (Rodriguez, at
p. 507.)
       The Supreme Court in People v. Perez (1979) 23 Cal.3d 545 held a defendant
could be separately punished for each sex crime committed in a single encounter even
when closely connected in time. “[F]ocus[ing] on the question whether defendant should
be deemed to have entertained single or multiple criminal objectives” (id. at p. 552), the
Court rejected defendant’s argument he had a single objective in committing each sex
offense—to obtain sexual gratification. “Such an intent and objective is much too broad
and amorphous to determine the applicability of section 654. . . . To accept such a broad,
overriding intent and objective to preclude punishment for otherwise clearly separate
offenses would violate the statute’s purpose to insure that a defendant’s punishment will
be commensurate with his culpability.” (Ibid.) Observing a defendant who attempts to
achieve sexual gratification by committing a number of criminal acts is substantially
more culpable than a defendant who commits only one such act, the Court concluded:
“We therefore decline to extend the single intent and objective test of section 654 beyond
its purpose to preclude punishment for each such act.” (Id. at p. 553; see People v.
Harrison (1989) 48 Cal.3d 321, 336, 338 [“Perez itself is the touchstone in determining
how [§ 654’s] general principles are to be applied to sex offenses”; a defendant should
“not be rewarded where, instead of taking advantage of an opportunity to walk away
from the victim, he voluntarily resumed his sexually assaultive behavior”].)
       Oritz’s multiple sexual convictions were not subject to section 654. As the trial
court found, each offense was a distinct act, clearly separated by “interruptions” or points
when Ortiz ceased his sexual activity because he feared detection, changed positions with
Ivy or engaged in a discussion with her.


omission be punished under more than one provision. An acquittal or conviction and
sentence under any one bars a prosecution for the same act or omission under any other.”


                                             8
       Without questioning any of these fundamental sentencing principles or
challenging their application to his case, Ortiz argues the consecutive indeterminate life
sentences imposed in this case were improper because violations of section 288.7,
subdivisions (a) and (b), are not offenses listed in section 667.6, subdivision (e), and
therefore are not subject to section 667.6, subdivision (d)’s requirement that full term,
consecutive offenses be imposed for certain specified sex crimes if they involve the same
victim on separate occasions. Ortiz’s observation about the inapplicability of section
667.6 is correct but wholly irrelevant. Neither the prosecutor in her sentencing
memorandum urging imposition of consecutive life terms for Ortiz nor the trial court in
explaining its sentencing decision referred in any way to section 667.6; and nothing in the
record suggests the court misunderstood the nature of its obligation to sentence Ortiz
under sections 288.7 and 669, subdivision (a), which authorizes imposition of life
sentences, whether with or without the possibility of parole, “to run consecutively with
one another.”
       To be sure, section 667.6, subdivision (d), contains a definition of “separate
occasions”6 that is generally comparable to the test under People v. Perez, supra,
23 Cal.3d 545 and People v. Harrison, supra, 48 Cal.3d 321, to determine whether
multiple punishment for multiple sex crimes is permissible under section 654. Thus, in
discussing its reasons for imposing consecutive sentences, the court referred to many of
the same factors that would be germane to an analysis under that different sentencing
scheme. That similarity standing alone, however, does not indicate the court relied upon




6
      The second paragraph of section 667.6, subdivision (d), provides, “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.”


                                              9
the wrong statute and provides no basis for reversing the court’s proper imposition of
separate consecutive sentences for Ortiz’s convictions.7
       3. The Trial Court’s Sentencing Findings Did Not Violate Ortiz’s Right to a Jury
          Trial
       In Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [120 S.Ct. 2348, 147 L.Ed.2d
435] (Apprendi) the United States Supreme Court held any fact that increases the penalty
for a crime beyond the prescribed statutory maximum, other than a prior conviction, must
be submitted to the jury and proved beyond a reasonable doubt. In Alleyne v. United
States (2013) 570 U.S. ___ [133 S.Ct. 2151, 186 L.Ed.2d. 314] (Alleyne) the Court held
Apprendi applies with equal force to facts increasing the mandatory minimum penalty for
an offense. Based on his mistaken assertion his five consecutive indeterminate life terms
(aggregating 95 years to life) were imposed under section 667.6, subdivision (d), Ortiz
argues the finding of “separate occasions” that is an essential part of that section’s
mandatory sentencing scheme must be made by the jury, rather than determined by the
sentencing judge.
       We seriously doubt whether imposition of mandatory, consecutive full term
sentences under section 667.6 implicates a defendant’s right to a jury trial on facts that
are the functional equivalent of elements of an offense. We need not resolve that
question, however, because it is now well established that the trial court’s exercise of its
discretion to impose consecutive sentences, as occurred in the case at bar, does not fall
within the rule of Apprendi. (See Oregon v. Ice (2009) 555 U.S. 160, 164, 168 [129 S.Ct.
711, 172 L.Ed.2d 517] [Sixth Amendment does not preclude states from assigning to


7
       The penalty prescribed for a felony violation of section 311.4 is 16 months, two
years or three years. (See §§ 311.9, subd. (b), 1170, subd. (h).) The trial court erred in
imposing a consecutive sentence of one third the middle term (eight months) for this
offense, rather than selecting one of the full triad terms (upper, middle or lower) and
deciding whether it should be served consecutively or concurrently, since this was the
single determinate term offense for which Ortiz was convicted. (See, e.g., People v.
Rodriguez (2012) 207 Cal.App.4th 204, 210-211 [trial court separately determines
sentence to be imposed for indeterminate term crimes and determinate term crimes].)
Accordingly, the case must be remanded for resentencing as to count 3 only.


                                             10
judges, rather than to juries, the finding of facts necessary to the imposition of
consecutive, rather than concurrent, sentences for multiple offenses]; People v. McKinzie
(2012) 54 Cal.4th 1302, 1369 [both the United States and California Supreme Courts
have rejected the claim that any factfinding engaged in by the trial court in justifying
consecutive sentences violates the right to a jury trial].)
                                       DISPOSITION
       The consecutive sentence of a determinate term of eight months on count 3, using
a minor as a model for a sexual act (§ 311.4, subd. (c)), is vacated and the matter
remanded for resentencing as to that count only. In all other respects the judgment is
affirmed.


                                              PERLUSS, P. J.


       We concur:



              WOODS, J.



              SEGAL, J.*




*
        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.


                                              11
