Filed 5/16/16 P. v. Tate CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT

THE PEOPLE,                                                          H040063
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. 212169)

         v.

JASON PAUL TATE,

         Defendant and Appellant.


         A jury found defendant Jason Paul Tate guilty of committing two lewd acts on a
child under 14. (Pen. Code, § 288, subd. (a).) Defendant was sentenced to a 10-year
prison term, with execution of that sentence suspended and formal probation imposed.
On appeal, defendant challenges the trial court’s ruling excluding evidence that the
victim’s younger niece had made sexual assault allegations against him, and the
prosecutor’s decision to withdraw those charges from the grand jury’s consideration
based on the niece’s poor and contradicted grand jury testimony. Defendant also claims
ineffective assistance of counsel at sentencing. Finding no error, we will affirm.

                                               I. BACKGROUND
         Olivia Doe1 was molested twice by defendant. The first molestation occurred
when she was six or seven years old. She was in second grade and living in Salinas with
her older sister who was her legal guardian, Grace Doe. She also lived with Grace’s


         1
             We use pseudonyms to protect the victims’ identities from disclosure.
daughter Yvonne Doe, four years her junior, and defendant, who was Grace’s boyfriend.
The second molestation occurred in 2011 when Olivia was 12 and in seventh grade. By
that time the family had grown to include Grace’s and defendant’s two sons, born in 2007
and 2009.
      Olivia disclosed the molestations to Grace on June 23, 2011, after Yvonne told
Olivia that defendant had molested her. Yvonne also told her mother that she had been
sexually molested by defendant. Both girls were interviewed that night by a responding
detective, and both were interviewed by a female detective one week later. The
interviews were recorded and transcribed. Both girls underwent sexual assault
examinations on July 18, 2011.
                        II. TRIAL COURT PROCEEDINGS
A.    GRAND JURY PROCEEDINGS
      In March 2012 the cases were presented to a grand jury. Olivia, then 13, testified
to two instances of lewd conduct by defendant consistent with her statements to the
police, and the grand jury returned a two-count indictment based on her testimony.
      Nine-year-old Yvonne testified that she was touched by defendant in an
uncomfortable way in second grade. When asked to tell the grand jury what happened,
she said “I’ve tried my best to forget. [I]t’s going to be hard for me to remember.” She
said defendant’s hands and lips touched her body but she could not remember what part
of her body. She said “[a]ll I know is it happened when I was in the second grade.” She
remembered both police interviews and said she told the truth both times, but she could
not remember what she said.
      Yvonne testified that defendant touched her in a bad way the day the police came
to her house, but she could not recall anything specific. Defendant had touched her
breasts and butt inside her clothes but not on the day the police came. Defendant had
touched her breasts, butt and front private in the bathroom more than once. That
touching had happened 20 to 25 times, but she either could not recall or could not
                                            2
describe any incident with specificity. She repeatedly said she could no longer recall
events. Defendant “might have” rubbed his front privates all over her body, but she
could not remember. Yvonne denied or could not recall making statements to the police
about kissing or contact with defendant’s genitals, and she denied or could not recall
whether that contact had occurred. She declined to read a statement she had written at
her second interview, stating it was sloppy and she could not see well. She testified that
defendant was always mean and strict, and he was the main reason she always got in
trouble.
       Grace testified that Yvonne told her on June 23, 2011 that defendant had molested
her that day on the couch. He made her get naked on top of him and kiss him on the
mouth, and he rubbed her bottom and her private part. The responding detective testified
that Yvonne told him defendant had reached into her pants and touched her butt and
vagina that day while she was on the computer. Defendant brought her into his bedroom,
where he made her take off her clothes, kissed her, and rubbed his penis all over her.
Yvonne told the responding detective something like that had occurred 50 or 60 times.
She said defendant had made her suck his penis and white stuff would come out, and that
had happened between five and seven times, most recently about a month before the
interview.
       Yvonne told the female detective that she was first molested by defendant when
she was in first grade. She would not verbalize what happened, but she wrote that
defendant made her kiss him and suck his wee-wee in the bathroom. She described
dropping to her knees when defendant grabbed her head, and said defendant told her he
would beat her with a belt if she did not comply. She said this happened again and again
for about four months, then she corrected herself and said four weeks. She said
defendant never touched her butt, but he stuck his hand into her vagina, then she said it
was a finger. She said defendant placed his penis hard against her vagina several times.
The detective told her it was important to be clear, and she said “I just can’t remember
                                             3
that much.” The detective told her if she did not remember, to say she did not remember,
not to make things up. She responded “I can’t remember too much.” She said defendant
had never threatened her, and when pressed she said “none [no threats] that I recall.”
       Yvonne told the SART examiner “He touches me in weird places,” and “He kissed
me and touched me with his hands.”2
       At the close of evidence, the prosecutor decided not to seek a true bill for the
conduct involving Yvonne. She explained her decision to the grand jury: “I have
decided not to seek an indictment for the conduct involving [Yvonne]. And that is based
on the nature and quality of [Yvonne’s] testimony at this hearing and her prior
statements, which you heard in the form of testimony. [¶] The standard at a grand jury is
probable cause. But, in fact, we seek to present cases for which there is evidence and
proof beyond a reasonable doubt. That is our standard for conviction at trial. [¶] So,
based on the state of the evidence, I’m not seeking an indictment -- any indictment for the
conduct testified to by [Yvonne] Doe.”
B.     TRIAL
       1.       The Prosecution’s Case
                a.     Olivia’s testimony
       Olivia testified that defendant entered her bedroom at night when she was in
second grade living in Salinas. She woke up but pretended to be asleep. Defendant
touched her shoulder and she rolled from her back to her stomach. Defendant pulled
down her pajamas and underwear, and he touched, kissed, and licked her bottom. She
did not speak because she was scared. On direct examination Olivia did not remember
telling the female detective that defendant put his finger in her bottom, but on redirect,
presented with her prior statements, she testified that his finger did go inside her bottom.
When she was in the seventh grade, around the time of the earthquake in Japan (March

       2
           The exam revealed no evidence of penetrating contact.

                                              4
11, 2011) she told her best friend Pauline that defendant had touched her when she lived
in Salinas and that he was her biggest fear because she was afraid he would do it again.
She described the touching to Pauline as rape, which at that time she thought was the
same as molestation.
       Defendant touched Olivia again in bed when she was in the seventh grade. She
had just awakened when defendant lay down beside her, touched her chest and stomach
over her T-shirt, and said “[Olivia], I know you are awake.” He said “I’m sorry,” kissed
her mouth, lifted and spread her legs, and kissed her vagina over her underwear. She was
scared, cried, and told him to stop.
       On June 23, 2011, Olivia told Grace that defendant had touched her. Her
disclosure was prompted by a note she had received from Yvonne that afternoon that
scared and upset her. Olivia was still upset when Grace came home, and Olivia was
forthcoming and cried when Grace asked her what was wrong.
              b.       Grace’s testimony
       Grace’s relationship with defendant began in 2003 and ended on June 23, 2011,
when Olivia made her disclosure. The two regularly argued, and at times restraining
orders prevented defendant from contacting Grace. They argued on March 22, 2011 in
defendant’s car on Blossom Hill Road. Defendant eventually pulled over, Grace got out
of the car, and defendant drove away. Grace reported to the police that day that
defendant had hit her.
       The evening of June 23, Grace noticed Olivia was not herself, so she asked Olivia
what was wrong. Olivia started crying. After Grace asked again, Olivia responded,
crying hysterically and telling Grace that defendant had touched her sexually. Grace also
cried. She kept asking Olivia “Is it true[?]” and “Are you sure[?]” But there was nothing
about Olivia that made Grace question her. She loved defendant, had two children with
him, and did not want to believe he would do that. She was scared and called a friend
who came over and called the police.
                                            5
       The family had lived in Salinas for one year—from August 2005 to August 2006,
and Olivia was in the second grade during that time.
              c.     Other prosecution witnesses
       The SART examiner testified that Olivia spoke of two molestations. The first
occurred in Salinas. Olivia said “He thought I was sleeping. He would stick his fingers
and lick it.” Regarding the second time, Olivia said “He lay in my bed and he was
touching my arms and chest, and then he put his lips on mine. He got up and spread my
legs apart and kissed me in my private part.”
       The responding detective testified that Olivia told him that the first time involved
defendant pulling down her underwear in bed, and kissing and touching her bottom. The
second time defendant kissed Olivia on the lips and on her private parts.
       The female detective testified that Olivia told her that defendant touched, kissed,
and licked her bottom, and put his finger in her bottom when she was in the second grade,
and more recently defendant had put his lips on Olivia’s lips, moved his hand on her
chest and stomach, lifted and spread her legs, and kissed her vagina over her underwear.
       Olivia’s classmate Pauline testified that in January or February 2011, when she
and Olivia were in class in seventh grade, Olivia told her that defendant had raped her in
the middle of the night when she lived in Salinas. Pauline did not ask Olivia what she
meant by the word rape. Olivia told Pauline not to tell anyone.
       2.     Defendant’s Case
              a.     Defendant’s testimony
       Defendant and Grace had a love-hate relationship from 2004 to 2011. The couple
argued frequently in front of Olivia, and they broke up several times. Defendant would
move out, then return to the family home upon reconciliation. Grace reported many
domestic incidents to the police to get defendant in trouble, some of which were untrue.
When police responded to a domestic dispute in 2008, Olivia told them she had not seen
anything. That was untrue, and when confronted by defendant after he and Grace had
                                             6
reunited, Olivia explained that she stays with Grace when they fight and break up.
Defendant did not press Olivia about her lack of candor with the police because he
understood her position.
       On March 22, 2011, defendant and Grace argued when he was driving on Blossom
Hill Road. Defendant suggested to Grace that he stay at his brother’s for a while. That
angered Grace, who called the police from the car reporting that defendant was
kidnapping her. Defendant was under a restraining order at that time, so he immediately
called his parole officer. He pulled off the road, and he started walking to his
grandmother’s house because Grace would not get out of the car. His grandparents
retrieved the car later. He denied hitting Grace that day. He acknowledged that the
March 22 police report did not mention kidnapping.
       Defendant never touched Olivia in a sexual way. Olivia was not a problem child,
but she was sensitive and would cry easily. Defendant had a positive relationship with
her. Defendant was home with the children on June 23, 2011, but left at some point to
play poker. His aunt notified him that Grace had made a report against him, and he never
returned home. Defendant admitted to prior felony convictions for stealing a laptop,
selling drugs, and violating a court order related to Grace. He admitted a misdemeanor
conviction for making terrorist threats.
              b.     Defendant’s grandmother’s testimony
       Defendant’s grandmother confirmed that she and her husband picked up her car on
Blossom Hill Road on March 22, 2011.
C.     SENTENCING
       The jury found defendant guilty of two counts of committing lewd acts on Olivia.
Defendant was sentenced on count 1 (based on the earlier offense) to the upper term of
eight years, and to a two-year consecutive term on count 2 (the later offense).
Notwithstanding the probation department’s recommendation that defendant serve the
prison term, the court suspended execution of sentence on the condition that defendant
                                             7
complete five years’ formal probation, including at least one year of sex offender
treatment. The court ordered victim restitution, fines, fees, and probation conditions
which included a one-year county jail sentence, drug and alcohol prohibitions, and
specific restrictions on defendant’s contact with minors.
                                    II. DISCUSSION
A.     EVIDENTIARY ERROR
       Defendant argues that the trial court abused its discretion and denied him due
process “by permitting the jury to be told that [Yvonne] had made allegations of sexual
abuse against appellant but ruling that it was irrelevant that charges based on [Yvonne’s]
allegations had been dropped after her extremely poor testimony before the grand jury.”
According to defendant, the effect of the court’s evidentiary ruling was to create “an
inaccurate and unfairly prejudicial impression that [Yvonne] had made credible
allegations” of sexual abuse against him.
       The trial court is vested with wide discretion to determine relevance and weigh the
prejudicial effect of proffered evidence against its probative value. (People v. Edwards
(1991) 54 Cal.3d 787, 817.) On appeal, its ruling will not be disturbed absent an abuse
of discretion. (Ibid.) Abuse of discretion occurs when “ ‘the court exceeds the bounds
of reason, all of the circumstances being considered.’ ” (People v. Adams (2004)
115 Cal.App.4th 243, 252–253.) A due process violation results when evidentiary error
makes the trial fundamentally unfair. (People v. Partida (2005) 37 Cal.4th 428, 439.)
       1.     The Evidentiary Ruling
       The People’s trial brief asked the court to exclude under Evidence Code
section 352 (1) evidence that defendant was charged with crimes against Yvonne,
(2) evidence that the prosecutor did not seek an indictment for conduct involving
Yvonne, and (3) evidence of Yvonne’s statements, including her testimony before the
grand jury and at trial. According to the brief, “the defense by necessity has to convince
the jury that defendant never molested [Yvonne] in any form or fashion. Thus, there will
                                             8
be for all intents and purposes a trial on those crimes. That litigation will likely become
the predominant issue at trial. Thus, the admission of this evidence will also create
substantial danger of confusing the issues. Presumably, the defense seeks to persuade the
jury [Yvonne] is lying to convince them that [Olivia] is likewise untruthful when there is
no nexus. Thus, the admission of this evidence will also create a danger of undue
prejudice.”
       At the pretrial hearing addressing the prosecution’s request, the court noted
defendant’s position that Olivia fabricated her story because either Grace put her up to it
or it was part of a design by both girls to get defendant in trouble. Defendant argued that
Yvonne’s testimony before the grand jury and the prosecutor’s reaction to that testimony
demonstrated fabrication by Yvonne, and the fact that Olivia disclosed her molestations
only after Yvonne told her what had happened to her showed that Olivia invented her
story to copy her niece. Defendant pressed that “the totality of the evidence with respect
to that sequence of events and the consequences of it” was relevant to judge Olivia’s
credibility—to determine whether Olivia copied Yvonne in a “me-too syndrome.”
       The court ruled that Yvonne’s communication with Olivia was relevant to explain
Olivia’s delayed disclosure: “Clearly it’s relevant if the People are going to be trying to
explain delayed disclosure by [Olivia] Doe that the disclosure arose out of a
communication she had with [Yvonne] asserting misconduct on the part of the
defendant.” The court further ruled that the details of Yvonne’s disclosure, her later
allegations, and her grand jury testimony were not relevant to Olivia’s truthfulness. The
court explained: “However, this is not a final ruling. A lot of things come into play here,
the similarity of the disclosures, the timing, the presence of other persons. All of those
things are relevant to the questions I’ve asked, but absent some proof that the disclosures
made by [Yvonne] are false, this is not going to be a trial of the truth or falsity of
[Yvonne’s] allegations against the defendant.”


                                               9
       The court then clarified what it was deeming admissible: “Counsel, the fact that
[Yvonne] reported sexual molestation to [Olivia] may be inaccurate. I’m simply trying to
paraphrase what I have heard counsel say. My only understanding is that [Yvonne]
passed a note that she said something to [Olivia] and said, I can’t say it, I want to write it,
something to that effect. Yes, that’s admissible.”
       2.     Analysis
              a.      Olivia’s delayed disclosure
       The court’s evidentiary ruling regarding Olivia’s delayed disclosure was not an
abuse of discretion. The ruling was narrow: It allowed Olivia to testify that her
disclosure was prompted by the note Yvonne gave her. Indeed, the court’s exclusion of
the details of Yvonne’s disclosure and its clarification that Yvonne’s passing a note was
admissible dispels any notion that it was allowing Olivia to testify to the girls’
conversation or the hearsay content of Yvonne’s note.
       Olivia testified that Yvonne gave her a note that made her scared and upset, and
that note prompted Olivia to tell Grace what defendant had done to her. Defendant does
not dispute the relevancy of that evidence. Olivia did not testify to any molestations
alleged by Yvonne. She did not testify to her conversation with Yvonne, nor did she
mention the content of the note. Defendant’s characterization of the ruling as “permitting
the jury to be told that [Yvonne] had made allegations of sexual abuse against
[defendant]” is inaccurate. The ruling did not allow evidence of or lend veracity to
Yvonne’s allegations, as defendant contends, because it did not permit evidence of her
disclosure.

              b.      Yvonne’s grand jury appearance and the prosecutor’s decision
                      not to prosecute
       Defendant argues that the trial court abused its discretion by excluding Yvonne’s
testimony before the grand jury and the prosecutor’s consequent decision to forgo
prosecution on the molestation charges involving her. He argues that the ruling was

                                              10
based entirely on relevancy grounds, and it should not be upheld under Evidence Code
section 352, which gives the court discretion to “exclude evidence if its probative value is
substantially outweighed by the probability that its admission will (a) necessitate undue
consumption of time or (b) create substantial danger of undue prejudice, of confusing the
issues, or of misleading the jury.” (Evid. Code, § 352.)
       “ ‘[T]he latitude [Evidence Code] section 352 allows for exclusion of
impeachment evidence in individual cases is broad.’ ” (People v. Ayala (2000)
23 Cal.4th 225, 301.) “ ‘The statute empowers courts to prevent criminal trials from
degenerating into nitpicking wars of attrition over collateral credibility
issues.’ [Citation.]” (Ibid.) Fairly understood, the court’s relevancy observations were
simply components of its ruling under section 352 that it would not permit a collateral
“trial of the truth or falsity of [Yvonne’s] allegations against the defendant.” The court
clearly had a concern with defendant seeking to introduce inconclusive evidence to
establish that Yvonne had fabricated her disclosure to Olivia. Absent some proof of
fabrication, the court was not going to allow the trial to devolve into a mini trial about
Yvonne’s veracity.
       The ruling was not an abuse of discretion. The prosecutor’s trial brief identified
Yvonne’s statements—to Olivia, to her mother, to two police officers, and to the SART
examiner—and the judge met with counsel in chambers to discuss the matter before the
hearing. Yvonne would have to testify before her grand jury testimony could be admitted
(Evid. Code, §§ 1200, 1235, 1236), and the statements she made to Olivia, Grace, the
SART examiner, and the police would be admissible to show that she had never retracted
her disclosure. Presenting Yvonne’s multiple statements to the jury would have shifted
the focus of the trial to Yvonne, not only resulting in an undue consumption of time, but
also creating the danger of confusing the issues.
       Nor did the court abuse its discretion by excluding the prosecutor’s decision to
abandon the charges based on Yvonne’s statements. That decision reflected the
                                             11
prosecutor’s estimation that it would be difficult to prove beyond a reasonable doubt
discrete lewd acts during specific time periods. It did not directly speak to the truth of
Yvonne’s disclosure to Olivia, much less to Olivia’s credibility.
              c.     Due process
       Defendant did not raise a due process claim in the trial court. On appeal, he
claims his trial was rendered fundamentally unfair because the evidentiary ruling
“create[d] an impression both that [Yvonne’s] allegations should be viewed as credible
and that the jury could weigh those allegations in deciding whether to find [defendant]
guilty of the charges related to [Olivia].” Defendant argues that the ruling violated his
due process right to a fair trial because “[t]he jury had been given no reason, after all, to
believe that [Yvonne] was lying, and would consequently have assumed that a young girl
must be telling the truth if she alleged ‘he touches us.’ ” Defendant is referring to
Grace’s direct examination where she was asked whether Olivia had told her that
defendant had touched her. Grace responded, “She said he touches us.” The prosecutor
clarified, “That he touched her?” and Grace responded “Yes.”
       As much as defendant tries to tether his due process argument to the court’s
pretrial evidentiary ruling, the record does not bear out a nexus. As we have detailed, the
evidentiary ruling allowed Olivia to testify that Yvonne gave her a note to explain the
timing of Olivia’s disclosure; it did not permit Olivia to testify to the hearsay content of
Yvonne’s communication with her. The ruling therefore created no specific impression
about Yvonne’s allegations.
       Nor did the ruling, directed at Olivia’s testimony, permit Grace’s “[s]he said he
touches us” testimony—the only reference to any allegation by Yvonne in the entire trial3

       3
         Defendant’s briefing identifies a second reference to Yvonne’s allegations which
we attribute to a misstatement by the prosecutor. In her direct examination of Grace
about Olivia’s disclosure, the prosecutor asked: “Did you tell [defendant’s] grandfather
that [Yvonne] (verbatim) had disclosed some conduct to you?” Grace answered “I did”
                                                                                     (Continued)

                                              12
and the testimony defendant complains actually prejudiced him. On direct examination,
the prosecutor asked Grace if Olivia told her that defendant touched her. Grace
responded, “She said he touches us.” The prosecutor focused the inquiry on Olivia:
“That he touched her?” Grace answered “yes.” Defendant failed to object to that
testimony. Accordingly, his claim is forfeited on appeal. (People v. Poggi (1988)
45 Cal.3d 306, 331 [“ ‘questions relating to admissibility of evidence will not be
reviewed on appeal in the absence of a specific and timely objection in the trial court on
the ground sought to be urged on appeal.’ ”].)
B.     SENTENCING ERROR—INEFFECTIVE ASSISTANCE OF COUNSEL
       The probation report, read and considered by the trial court, recommended that
probation be denied and defendant serve 10 years in prison. In support of the
recommended upper term of eight years for count 1, the report identified eight
aggravating factors: The crime involved a high degree of cruelty, the victim was
particularly vulnerable, defendant took advantage of a position of trust, defendant had
engaged in violent conduct indicating a serious danger to society, defendant’s prior
convictions were of increasing seriousness, defendant had served a prior prison term,
defendant was on parole when the crime was committed, and defendant’s prior
performance on probation and parole was unsatisfactory. The report identified no
mitigating circumstances. The probation report recommended a two-year consecutive
sentence on count 2, representing one-third the middle term of six years.




to that question and to the prosecutor’s follow up question, “That she … told you that
[defendant] had done something sexually to her?” The prosecutor continued to ask
questions about Olivia and the course of events that evening, with no mention of Yvonne.
It appears from the line of questioning—indeed the court reporter’s injection of the
parenthetical “verbatim”—that the single reference to Yvonne was a mistake by the
prosecutor. Defendant did not object to that reference, nor does he argue that it rendered
his trial fundamentally unfair.

                                            13
       A psychological assessment conducted under Penal Code section 288.1 concluded
that defendant had an interest in and willingness to comply with sex offender treatment.
The reporting psychologist noted that defendant met the criteria for a pedophilic disorder
diagnosis, but that the risk of reoffending was low.
       The prosecutor agreed with the probation department’s recommendation,
describing the aggravating factors as “overwhelming.” She pressed that the first offense
occurred when Olivia was very young and defendant was on formal probation for a
controlled substance conviction. She urged consecutive sentences because the offenses
were attenuated by time and distance. She argued that defendant was not amenable to
treatment because he continued to deny his crimes.
       Defendant countered that he was agreeable to counseling, that his criminal history
was not egregious, and that even though he made “miserable choices,” a 10-year prison
sentence was unwarranted. Counsel pleaded that the court “apply a level of mercy, a
level of consideration for the totality of the facts,” and impose a lesser sentence than that
recommended by the probation department.
       Before pronouncing sentence, the court rejected counsel’s characterization of
defendant as “some hapless victim of circumstance in this strange domestic dynamic,”
observing that defendant’s criminal record, including convictions and arrests for
inflicting injury on a child, child endangerment, violating domestic restraining orders,
and making criminal threats in a domestic situation showed a pattern of volitional
conduct. The court also rejected the prosecutor’s argument that defendant was not
amenable to treatment by virtue of his refusal to admit guilt to the psychologist or the
probation officer, in light of defendant’s concern that any admission could undermine his
appeal.
       The court imposed the upper term of eight years on count 1, commenting “I’m
imposing that term on the basis of there being no finding of any mitigating
circumstances,” and a two-year consecutive sentence on count 2, for an aggregate 10-year
                                             14
prison term. The court suspended execution of the sentence conditioned on successful
completion of five years’ formal probation.
       Defendant contends that the trial court erred by imposing the upper term on
count 1 based entirely on the absence of mitigating factors, and by failing to provide a
basis for sentencing the two counts consecutively. Recognizing that he has forfeited
those claims by failing to object in the trial court (People v. Scott (1994) 9 Cal.4th 331,
354), he asserts on appeal that counsel was constitutionally ineffective for not objecting
to the court sentencing him without stating reasons for its sentencing choice.
       Ineffective assistance of counsel requires a showing that counsel’s performance
fell below an objective standard of reasonableness and that defendant was prejudiced by
the deficient performance. (Strickland v. Washington (1984) 466 U.S. 668, 687.) “When
a defendant makes an ineffectiveness claim on appeal, the appellate court must look to
see if the record contains any explanation for the challenged aspects of representation. If
the record sheds no light on why counsel acted or failed to act in the manner challenged,
‘unless counsel was asked for an explanation and failed to provide one, or unless there
simply could be no satisfactory explanation’ [citation], the case is affirmed [citation].”
(People v. Babbitt (1988) 45 Cal.3d 660, 707.) Prejudice requires a showing “that there
is a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” (Strickland, at p. 694.)
       Counsel’s performance was not deficient because the record shows that the court
considered the aggravating factors when it imposed the upper term on count 1. Indeed,
the court read and considered the probation report, invited comment on the report’s
accuracy and content, and listened to the prosecutor’s argument. The court’s stated
reason for imposing the upper term—the absence of mitigating factors—can only be
understood in this larger context. Defendant does not argue that the probation report
identified inapplicable aggravating factors, each of which could support an upper term


                                              15
sentence. In light of this record, it was objectively reasonable for counsel not to seek a
more detailed sentencing pronouncement.
       Similarly, the imposition of a consecutive term for count 2 must be viewed in light
of the probation report and the prosecutor’s argument. As noted by the prosecutor,
consecutive sentences were justified by the fact that the offenses occurred separately,
years apart. (Cal. Rules of Court, rule 4.425(a)(3).) Given that the consecutive sentence
was supportable, counsel’s failure to seek reasons for the consecutive term did not
constitute deficient performance.
       In addition to deficient performance, defendant has failed to show prejudice
resulting from counsel’s not objecting. In light of the record’s ample support for the 10-
year prison sentence, and the court’s showing of leniency by suspending execution of that
sentence, it is not reasonably probable that defendant would have received a more
favorable outcome had counsel objected to the stated reasons (or absence thereof)
supporting his sentence.
                                    III.   DISPOSITION
       The judgment is affirmed.




                                             16
                                  ____________________________________
                                  Grover, J.




I CONCUR:




____________________________
Bamattre-Manoukian, Acting P.J.




I CONCUR IN THE JUDGMENT ONLY:




____________________________
Mihara, J.
