Filed 7/31/14 P. v. Garcia CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H039212
                                                                    (Monterey County
         Plaintiff and Respondent,                                   Super. Ct. No. SS120091A)

         v.

ELI ESCOBAR GARCIA,

         Defendant and Appellant.


                                           I.        INTRODUCTION
         Defendant Eli Escobar Garcia appeals after a jury convicted him of 15 counts of
committing a lewd act on a child under the age of 14 (Pen. Code, § 288, subd. (a)1) and
six counts of contacting or communicating with a minor with the intent to commit a sex
offense (§ 288.3, subd. (a)). The jury found that in committing seven of the lewd acts,
defendant engaged in substantial sexual conduct. (§ 1203.066, subd. (a)(8).) Defendant
was sentenced to a 17-year prison term.
         On appeal, defendant contends: (1) there was insufficient evidence to support his
convictions of contacting or communicating with a minor with the intent to commit a sex
offense; (2) the trial court erred by permitting the prosecutor to cross-examine defendant
about matters that went beyond the scope of his direct examination; (3) the prosecutor


         1
             All further statutory references are to the Penal Code unless otherwise indicated.
committed misconduct by referring to a fact not in evidence during argument to the jury;
(4) the trial court erred at sentencing by failing to state reasons for imposing consecutive
terms for certain counts, by relying on the victim’s age as a sentencing factor, by not
imposing an individualized sentence, by failing to consider all relevant factors, and by
imposing the middle term instead of the low term on certain counts. Defendant also
contends that the cumulative effect of the trial errors requires reversal. We will affirm
the judgment.
       Defendant has also filed a petition for writ of habeas corpus, which this court
ordered considered with the appeal. We have disposed of the habeas petition by separate
order filed this day. (See Cal. Rules of Court, rule 8.387(b)(2)(B).)2

                                   II.     BACKGROUND
       In October of 2011, 12-year-old Jane Doe met 18-year-old defendant at her
friend’s birthday party, which was held in a park in Seaside. They began texting each
other and soon began a dating relationship that included kissing and sexual intercourse.
Doe, who lived with her grandparents, would initially sneak out of her house to see
defendant. Later in the relationship, defendant would sneak into Doe’s bedroom to see
her.
       A.       Late November 2011 (Counts 1-3)
       Before Thanksgiving in 2011, Doe snuck out of her house to meet up with
defendant. She drove her grandmother’s van to a market where defendant was waiting
for her. Doe and defendant then drove around together. Nothing physical happened.
       One or two weeks later, after Thanksgiving, Doe and defendant texted to make
arrangements to meet again. They also texted about what they would do physically,
which included Doe giving defendant “blow jobs and stuff.” Doe again took her
grandmother’s van and drove around with defendant. They stopped and “got physical.”

       2
           All further rule references are to the California Rules of Court.

                                                2
They touched each other and kissed, then took their clothes off and had sexual
intercourse. Sometime afterwards, Doe told defendant that she was 12 years old.
       Based on the above, defendant was charged with one count of contacting or
communicating with a minor with the intent to commit a sex offense (count 1; § 288.3,
subd. (a)) and two counts of committing a lewd act on a child under the age of 14
(counts 2 & 3; § 288, subd. (a)). Count 2 was based on the kissing; count 3 was based on
the sexual intercourse. A substantial sexual conduct allegation was attached to count 3.
(§ 1203.066, subd. (a)(8).)
       B.     Mid-December 2011 (Counts 4 & 5)
       In the middle of December 2011, Doe and defendant got together again after
exchanging text messages. They walked together, held hands, and kissed.
       Based on the above, defendant was charged with one count of contacting or
communicating with a minor with the intent to commit a sex offense (count 4; § 288.3,
subd. (a)) and one count of committing a lewd act on a child under the age of 14 (count 5;
§ 288, subd. (a)).
       C.     Before Christmas 2011 (Counts 6 & 7)
       Right before Christmas of 2011, Doe and defendant met up again after making
arrangements via text messages. They went to defendant’s friend’s house, where they
stayed overnight. Doe and defendant kissed while in the car.
       Based on the above, defendant was charged with one count of contacting or
communicating with a minor with the intent to commit a sex offense (count 6; § 288.3,
subd. (a)) and one count of committing a lewd act on a child under the age of 14 (count 7;
§ 288, subd. (a)).
       D.     After Christmas 2011 (Counts 8-10)
       After Christmas of 2011, Doe called defendant and made arrangements to meet up
with him. They drove to the beach in defendant’s friend’s car. They kissed and had
sexual intercourse in the car.

                                            3
       Based on the above, defendant was charged with one count of contacting or
communicating with a minor with the intent to commit a sex offense (count 8; § 288.3,
subd. (a)) and two counts of committing a lewd act on a child under the age of 14
(counts 9 & 10; § 288, subd. (a)). Count 9 was based on the kissing; count 10 was
based on the sexual intercourse. A substantial sexual conduct allegation was attached
to count 10. (§ 1203.066, subd. (a)(8).)
       E.        November 20, 2011 Through January 20, 2012 (Counts 11-21)
       Following the incident after Christmas, Doe and defendant saw each other on a
daily basis. Defendant would sneak into Doe’s bedroom through a window. Doe would
call defendant from school to find out if he was coming over. They always kissed when
defendant came over, and they had sex on three or four different occasions. Doe took
photographs of defendant kissing her and of defendant’s hand on her breast.
       Based on the above, defendant was charged with four counts of contacting or
communicating with a minor with the intent to commit a sex offense (counts 11, 14, 17,
& 21; § 288.3, subd. (a)) and seven counts of committing a lewd act on a child under the
age of 14 (counts 12, 13, 15, 16, 18-20; § 288, subd. (a)). Counts 12 and 13 were based
on the first time Doe and defendant kissed and had sex in the bedroom. Counts 15 and 16
were based on the second time Doe and defendant kissed and had sex in the bedroom.
Counts 18 and 19 were based on the third time Doe and defendant kissed and had sex in
the bedroom. Count 20 was based on defendant touching Doe’s breast. Substantial
sexual conduct allegations were attached to counts 13, 16, and 19. (§ 1203.066,
subd. (a)(8).)
       F.        Los Angeles (Counts 22 & 23)
       In January of 2012, Doe’s grandmother found a photograph of Doe and defendant.
Doe’s grandmother said she was going to send Doe away to a boarding school. Doe was
taken to the police station. She informed defendant that the police were looking for him.
Defendant said he planned to go to Los Angeles. Doe asked defendant to take her with

                                            4
him. Defendant agreed, then said no, because he did not want to get into trouble. Doe
then said, “[I]f you love me you’ll take me.” She called him from school and arranged to
meet him. Some of defendant’s friends then drove them both to an apartment in Los
Angeles.
       The day that they arrived in Los Angeles, Doe and defendant had sexual
intercourse. Defendant also orally copulated Doe. After they went to sleep that night,
defendant’s uncle woke them up and handed them a phone. Doe spoke to a police officer
and her mother. At about 2:00 a.m., police broke down the apartment door.
       Based on the above, defendant was charged with two counts of committing a lewd
act on a child under the age of 14 (counts 22 & 23; § 288, subd. (a)). Substantial sexual
conduct allegations were attached to both counts. (§ 1203.066, subd. (a)(8).)
       G.     Defendant’s Interview and Testimony
       Defendant was interviewed by the police after the Los Angeles incident. He
acknowledged being in a dating relationship with Doe. He claimed he had engaged in
sexual intercourse with Doe only three times, beginning 30 days earlier. He denied orally
copulating her and denied having sex with her in Los Angeles. He admitted Doe told him
she was 12 years old. Doe told him she had sex with someone else before him.
       At trial, defendant admitted meeting Doe in October 2011 and texting with her
afterwards. He admitted continuing to see Doe after finding out that she was 12 years
old, but he claimed he did not find out her true age until after they had sex “a couple of
times.” Defendant admitting sneaking into Doe’s house, going to Los Angeles with Doe,
and having sex with her in Los Angeles. Defendant testified that he and Doe “love each
other very much” and that their relationship was about more than just sex. He claimed he
did not want to have sex with Doe after finding out her true age. He admitted telling
“some lies” during his police interview.




                                             5
       H.     Verdicts and Sentencing
       The jury found defendant not guilty of two counts of contacting or communicating
with a minor with the intent to commit a sex offense (counts 1 & 21; § 288.3, subd. (a)),
but it found him guilty of all the other counts. The jury found true all seven substantial
sexual conduct allegations. (§ 1203.066, subd. (a)(8).) The trial court sentenced
defendant to a 17-year prison term.

                                  III.    DISCUSSION
       A.     Sufficiency of the Evidence: Contacting or Communicating with a Minor
              with the Intent to Commit a Sex Offense
       Defendant contends there was insufficient evidence to support his six convictions
of contacting or communicating with a minor with the intent to commit a sex offense.
(§ 288.3, subd. (a); counts 4, 6, 8, 11, 14 & 17.) Specifically, defendant contends there
was insufficient evidence that he “initiate[d] communication” with Doe, and insufficient
evidence that he had “the intent to commit lewd or lascivious acts at the time of the
communication.”
              1.     Standard of Review
       Under the federal Constitution’s due process clause, there is sufficient evidence to
support a conviction if, viewing the evidence in the light most favorable to the
prosecution, a rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 319.) In
addressing a claim of insufficient evidence, “the court must review the whole record in
the light most favorable to the judgment below to determine whether it discloses
substantial evidence—that is, evidence which is reasonable, credible, and of solid
value—such that a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578 (Johnson).)




                                             6
              2.     Legal Background
       Section 288.3, subdivision (a) provides: “Every person who contacts or
communicates with a minor, or attempts to contact or communicate with a minor, who
knows or reasonably should know that the person is a minor, with intent to commit an
offense specified in Section . . . 288 . . . involving the minor shall be punished by
imprisonment in the state prison for the term prescribed for an attempt to commit the
intended offense.”
       Section 288.3, subdivision (b) provides: “As used in this section, ‘contacts or
communicates with’ shall include direct and indirect contact or communication that may
be achieved personally or by use of an agent or agency, any print medium, any postal
service, a common carrier or communication common carrier, any electronic
communications system, or any telecommunications, wire, computer, or radio
communications device or system.”
       Section 288.3 was added by an initiative measure in 2006. (Prop. 83, § 6, as
approved by voters, Gen. Elec. (Nov. 7, 2006), eff. Nov. 8, 2006.) The “findings and
declarations” section of the initiative (id., § 2) includes the following statement: “[S]ex
offenders . . . prey on the most innocent members of our society.” (Id., subd. (b).) The
findings and declarations also state that the changes brought about by the initiative will
put Californians “in a better position to keep themselves, their children, and their
communities safe from the threat posed by sex offenders.” (Id., subd. (e).) The stated
intent of the electorate in enacting the initiative was “to help Californians better protect
themselves, their children, and their communities.” (Id., subd. (f).)
              3.     Analysis
       We first address defendant’s contention that there was insufficient evidence that
he “initiate[d] communication” with Doe. Defendant acknowledges that nothing in
section 288.3 explicitly requires that the defendant initiate communication with a minor,



                                              7
but he argues that such a requirement should be read into the statute “[b]ased on the
stated purposes of the passage of Proposition 83.”
       “ ‘In interpreting a voter initiative . . . , we apply the same principles that govern
statutory construction. [Citation.] Thus, [1] “we turn first to the language of the statute,
giving the words their ordinary meaning.” [Citation.] [2] The statutory language must
also be construed in the context of the statute as a whole and the overall statutory scheme
[in light of the electorate’s intent]. [Citation.] [3] When the language is ambiguous, “we
refer to other indicia of the voters’ intent, particularly the analyses and arguments
contained in the official ballot pamphlet.” [Citation.]’ [Citation.]” (Robert L. v.
Superior Court (2003) 30 Cal.4th 894, 900-901.)
       Thus, we begin by examining the plain language of the statute, which criminalizes
“contact[] or communicat[ion] with a minor” when such contact or communication is
done with the intent to commit a specified sex offense involving that minor. (§ 288.3,
subd. (a).) Although the word “contact” can mean “to make contact” (see Merriam-
Webster’s Collegiate Dict. (10th ed. 1999) p. 249), it also means to “be in contact with”
(ibid.). Moreover, the statute also applies to a person who “communicates” with a minor
with the intent to commit a specified sex offense (§ 288.3, subd. (a)). The word
“communicate” means “to convey knowledge of or information about : make known.”
(Merriam-Webster’s Collegiate Dict. (10th ed. 1999) p. 232.) A person can
“communicate[]” with a minor without initiating the communication. (§ 288.3,
subd. (a).)
       Moreover, the phrase “contacts or communicates with” (§ 288.3, subd. (a)) is
explicitly defined in the statute, which does not specify that the perpetrator must initiate
the contact or communication. Section 288.3, subdivision (b) states that “ ‘contacts or
communicates with’ shall include direct and indirect contact or communication that may
be achieved personally or by use of an agent or agency, any print medium, any postal
service, a common carrier or communication common carrier, any electronic

                                              8
communications system, or any telecommunications, wire, computer, or radio
communications device or system.” Nothing in the foregoing definition indicates that the
electorate intended the phrase “contacts or communicates with” to mean that the
perpetrator must initiate the contact or communication.
       Even if we were to find the plain language of the statute ambiguous, nothing in the
stated intent of the electorate suggests that section 288.3 was intended to apply only
where the perpetrator initiates communication with a minor. The summary of
Proposition 83 provided to voters specified that “the common purpose of the provisions
of Proposition 83 [was] to protect Californians from the threat posed by sex offenders.”
(People v. Keister (2011) 198 Cal.App.4th 442, 451 (Keister).) “[T]he provisions of
Proposition 83 were summarized for voters as follows: (1) ‘Increases penalties for violent
and habitual sex offenders and child molesters’; (2) ‘Prohibits registered sex offenders
from residing within 2,000 feet of any school or park’; (3) ‘Requires lifetime Global
Positioning System monitoring of felony registered sex offenders’; (4) ‘Expands
definition of a sexually violent predator’; and (5) ‘Changes current two-year involuntary
civil commitment for a sexually violent predator . . . and subsequent ability of sexually
violent predator to petition court for sexually violent predator’s conditional release or
unconditional discharge.’ (Voter Information Pamp., Gen. Elec. (Nov. 7, 2006) official
title and summary of Prop. 83, p. 42.)” (Ibid.)
       Defendant appears to be arguing that since the intent of the electorate was to
“protect Californians from the threat posed by sex offenders” (Keister, supra, 198
Cal.App.4th at p. 451), the electorate must have intended section 288.3 to apply only to
sex offenders who initiate contact or communication with a minor. We disagree.
Section 288.3 bars a person from contacting or communicating with a minor with the
intent to commit a sex offense on that particular minor. The focus of the statute is the
specific intent behind the contact or communication, not how the contact or
communication begins. Thus, we effectuate the electorate’s intent to protect Californians

                                              9
from sex offenders by interpreting the statute to apply to all contact or communication
with a minor that is accompanied by the intent to commit a sex offense on the minor. It
was not necessary for the prosecution to prove that defendant initiated the contact or
communication with Doe, only that he had the intent to commit a sex offense on Doe
when he contacted or communicated with her.
       We next address defendant’s contention that there was insufficient evidence that
he had “the intent to commit lewd or lascivious acts at the time of the communication.”
Defendant asserts there was no evidence regarding the content of his communications
with Doe and thus no direct evidence of his intent. He acknowledges that he and Doe
always communicated before meeting up, but he points out that they did not always have
sexual intercourse. Thus, defendant claims, it was not reasonable to infer that he
intended to commit a lewd act at the time of those communications.
       Doe testified that she and defendant would always communicate before getting
together. They exchanged text messages before the incident in the middle of December
of 2011, when they held hands and kissed. They made arrangements to meet via text
messages prior to the incident before Christmas of 2011, when they kissed in a car. They
communicated by telephone call before the incident after Christmas of 2011, when they
kissed and had sexual intercourse in a car. They always communicated by telephone
before defendant came over to her house. Although they did not always engage in sexual
intercourse when he came over, they always kissed. Thus, it was reasonable to infer that
defendant intended to engage in lewd acts with Doe when he communicated with her
prior to coming over.
       Because it was unnecessary for the prosecution to prove that defendant initiated
communication with Doe and because a reasonable trier of fact could find that defendant
intended to engage in lewd acts with Doe at the time of the communications, substantial
evidence supports defendant’s convictions of contacting or communicating with a minor



                                            10
with the intent to commit lewd acts (§ 288.3, subd. (a)), as charged in counts 4, 6, 8, 11,
14, and 17. (See Johnson, supra, 26 Cal.3d at p. 578.)
       B.     Cross-Examination of Defendant
       Defendant contends the trial court erred by permitting the prosecutor to cross-
examine him about matters beyond the scope of his direct examination.
              1.     Proceedings Below
       On direct examination, defendant admitted meeting Doe in October 2011 and
texting with her afterwards. He admitted seeing Doe after knowing that she was 12 years
old. He admitting going to Los Angeles with Doe. Defendant was not asked whether he
had engaged in sexual intercourse with Doe or about any of the specific incidents
underlying the charges.
       On cross examination, the prosecutor asked, “Would it be fair to say that you
knew [Doe] was 12 years old before you had sexual intercourse with her?” Defendant
objected to the question as “beyond the scope of direct.” The trial court overruled the
objection. Defendant answered, “No, afterwards,” and explained that he thought Doe
was 15 or 16 years old.
       The prosecutor then asked, “And how many times had you had sex with her before
you found out she was 12?” Defendant again objected to the question as “beyond the
scope of direct.” The trial court again overruled the objection. Defendant answered that
he had sex with Doe “a couple of times” before finding out her true age.
       The prosecutor later asked defendant about the time he and Doe had sex in her
grandmother’s van. Defendant again objected to the question as “beyond the scope of
direct.” After a sidebar conference, the trial court overruled the objection. Defendant
answered that he did not know Doe was 12 years old at the time they had sex in the van.
       The prosecutor then asked, “When you were having sex with her, did you think
what you did was okay?” Defendant again objected to the question as “beyond the scope
of direct.” The trial court overruled the objection and defendant asked the prosecutor to

                                             11
clarify the question. The prosecutor then asked whether defendant felt that he had to hide
the fact he had sex with Doe in the van from other people, such as Doe’s family.
Defendant responded that he “didn’t really want to hide it but most people don’t reveal
all that stuff.”
        The prosecutor later asked, “How many times did you have sex with [Doe] at her
house say in December and January?” Defendant again objected to the question as
“beyond the scope of direct.” The trial court overruled the objection and defendant
answered that he did not know, but it might have been four to six times.
                   2.   Legal Background
        It is a “familiar rule that cross-examination must be ‘within the scope of the direct
examination.’ [Citations.]” (People v. Lynn (1971) 16 Cal.App.3d 259, 271 (Lynn); see
Evid. Code, § 761.) “The permissible scope of cross-examination of a defendant is
generally broad. ‘When a defendant voluntarily testifies, the district attorney may fully
amplify his testimony by inquiring into the facts and circumstances surrounding his
assertions.’ ” (People v. Chatman (2006) 38 Cal.4th 344, 382.) “Once a defendant takes
the stand and testifies to the circumstances of the charged offenses, the prosecutor on
cross-examination is permitted ‘to explore the identical subject matter in much greater
detail.’ [Citations.]” (People v. Mayfield (1997) 14 Cal.4th 668, 754 (Mayfield).) A
defendant “cannot artificially limit that scope by limiting his direct testimony [citation].”
(Lynn, supra, at pp. 271, 272 [although defendant testified only about offenses committed
on a particular date, cross-examination about earlier offenses was “relevant and
permissible”].)
        We review the trial court’s rulings on defendant’s objections for an abuse of
discretion. (See People v. Farley (2009) 46 Cal.4th 1053, 1109-1110; People v.
Rodriguez (1999) 20 Cal.4th 1, 9-10.)




                                              12
              3.     Analysis
       Defendant contends the trial court should have sustained the objections he made
below and barred the prosecution from asking him specific questions about his sexual
activities with Doe. Defendant contends that on direct examination, he never “testifie[d]
to the circumstances of the charged offenses” (Mayfield, supra, 14 Cal.4th at p. 754) and
thus he did not “invite the prosecutor’s cross-examination regarding specifics of the
alleged crimes.” He claims the improper cross-examination was prejudicial because
Doe’s testimony was “confusing and conflicting,” and thus his testimony served to
“bolster” the prosecution’s case.
       Although defendant did not directly deny committing the charged offenses on
direct examination, the record indicates he testified in order to persuade the jury that he
should not be found guilty because he was involved in a consensual relationship with
Doe. Despite his attempt to limit the scope of cross-examination by offering only vague
and abbreviated testimony about the relationship, the prosecution was entitled to explore
the topic in greater detail. (See Mayfield, supra, 14 Cal.4th at p. 754; Lynn, supra, 16
Cal.App.3d at p. 272.) For instance, after defendant admitted, on direct examination, that
he continued to see Doe after knowing that she was 12 years old, the prosecutor was
permitted to ask whether defendant found out Doe was 12 years old before or after he had
sexual intercourse with her. The prosecutor could also ask defendant how many times he
had sexual intercourse with Doe after finding out that she was 12 years old. Also, since
the import of defendant’s testimony was that his conduct was not criminal, the prosecutor
was permitted to ask him whether he thought it was “okay” when he was having sexual
intercourse with Doe.
       In sum, the trial court did not abuse its discretion by overruling defendant’s
objections when he asserted that the prosecutor was cross-examining him about matters
that went beyond the scope of his direct examination.



                                             13
       C.     Prosecutorial Misconduct
       Defendant contends the prosecutor committed misconduct by referring to a fact
not in evidence during argument to the jury: Doe’s lack of prior sexual experiences.
              1.      Proceedings Below
       During argument to the jury, the prosecutor noted there was a jury instruction
stating that the jury should not “use sympathy.”3 The prosecutor then stated, “[T]he
People really don’t have any sympathy for [defendant] because of the fact that he’s 18
and she’s 12 years old. His acts as far as what he did with [Doe] are reprehensible. [¶]
The fact that he was aware that she was young. The fact that he was aware that she was
living with her parents. The fact that []he encouraged her to drive her grandmother’s
vehicle at substantial risk to her own safety, her own life. The fact that he kept her out all
night a number of times when she’s in school. The fact that her first sexual experiences
are with this 18-year-old man. This is something that will stay with her forever. That’s
why these crimes are so horrific is because you never have another first time. This is
part of [Doe’s] sexual history for the rest of her life.” (Italics added.)
              2.      Legal Background
       As the California Supreme Court explained in People v. Hill (1998) 17 Cal.4th
800 (Hill), it is misconduct for a prosecutor to argue facts not in evidence “because such
statements ‘tend[ ] to make the prosecutor his [or her] own witness—offering unsworn
testimony not subject to cross-examination. It has been recognized that such testimony,
“although worthless as a matter of law, can be ‘dynamite’ to the jury because of the
special regard the jury has for the prosecutor, thereby effectively circumventing the rules
of evidence.” [Citations.]’ [Citations.] ‘Statements of supposed facts not in evidence . . .




       3
        Pursuant to CALCRIM No. 200, the trial court instructed the jury, “Do not let
bias, sympathy, prejudice or public opinion influence your decision.”

                                              14
are a highly prejudicial form of misconduct, and a frequent basis for reversal.’ ” (Id. at
p. 828.)
       Defendant acknowledges that generally, “trial counsel’s failure to object in a
timely manner to asserted prosecutorial misconduct . . . results in the forfeiture of the
claim on appeal. [Citation.]” (People v. Dykes (2009) 46 Cal.4th 731, 757.) Defendant
suggests this court can exercise discretion to review his claim because the prosecutorial
misconduct violated his constitutional rights to due process and a fair trial. Defendant
also asserts that trial counsel was ineffective for failing to object to the misconduct.
       To prevail on an ineffective assistance of counsel claim, the defendant must show
that (1) “counsel’s performance fell below a standard of reasonable competence” and
(2) “prejudice resulted.” (People v. Anderson (2001) 25 Cal.4th 543, 569; Strickland v.
Washington (1984) 466 U.S. 668, 687-688 (Strickland).) To show prejudice, “[t]he
defendant must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” (Strickland, supra, at p. 694.)
              3.     Analysis
       Defendant contends there was no evidence that Doe’s “first sexual experience[]”
was with him and thus that the prosecutor committed misconduct by referring to a fact
not in evidence. Defendant contends that the misconduct was prejudicial because the
prosecutor’s argument “suggested that [defendant] was the corrupting influence in the
relationship, when in fact, much of the evidence showed that Jane Doe was the initiator in
the relationship.”
       The Attorney General argues there was no prosecutorial misconduct because
“Doe’s testimony gave rise to the inference that she had not previously had sexual
intercourse” and although defendant told the police that Doe said she had previously
engaged in sexual intercourse, defendant admitted he had lied to the police.

                                              15
       Whether we address defendant’s prosecutorial misconduct claim directly or
through the prism of his claim of ineffective assistance of counsel, reversal is not
required. Even if the prosecutor committed misconduct and even if trial counsel should
have objected, defendant has not demonstrated prejudice. He has not shown “a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” (Strickland, supra, 466 U.S. at p. 694; see
People v. Milner (1988) 45 Cal.3d 227, 245 (Milner) [“Prosecutorial misconduct is cause
for reversal only when it is ‘reasonably probable that a result more favorable to the
defendant would have occurred had the district attorney refrained from the comment
attacked by the defendant.’ ”].)
       First, the jury was instructed that the attorney’s statements were not evidence and
that it should decide the case based only on the evidence presented at trial. At the
beginning of trial, the jury was instructed, “You must decide what the facts are in this
case. You must use only the evidence that is presented in the courtroom. Evidence is the
sworn testimony of witnesses, the exhibits admitted into evidence and anything else I tell
you to consider as evidence. [¶] . . . [¶] Nothing that the attorneys say is evidence.”
(See CALCRIM No. 104.) At the end of trial, the jury was instructed, “You must decide
what the facts are. It is up to all of you and you alone to decide what happened based
only on the evidence that has been presented to you in this trial.” (See CALCRIM
No. 200.) The jury was also instructed, “Nothing that the attorneys say is evidence.”
(See CALCRIM No. 222.) “In the absence of evidence to the contrary, we presume the
jury understood and followed the court’s instructions” and did not base its verdicts on any
misstatement by the prosecutor. (People v. Williams (2009) 170 Cal.App.4th 587, 635.)
       Second, any misstatement by the prosecutor did not bear directly on the issue of
whether defendant committed the charged offenses, and the evidence of the charged
offenses was overwhelming. Doe testified that she engaged in consensual sexual
intercourse with defendant as well as other acts such as kissing and holding hands.

                                             16
Defendant admitted having sexual intercourse with Doe and being in a romantic
relationship with her despite her age. Doe testified that she and defendant would meet up
after communicating by text message or phone calls, and defendant acknowledged
exchanging text messages with her. On this record, there is no reasonable probability that
“the result of the proceeding would have been different” if trial counsel had objected to
the prosecutor’s statement about Doe’s lack of prior sexual experience. (See Strickland,
supra, 466 U.S. at p. 694.) Likewise, it is not “ ‘reasonably probable that a result more
favorable to the defendant would have occurred had the district attorney refrained from
the comment attacked by the defendant.’ ” (See Milner, supra, 45 Cal.3d at p. 245.)
       D.     Cumulative Error
       Defendant contends that the cumulative effect of the trial errors requires reversal.
(See Hill, supra, 17 Cal.4th at p. 844 [“a series of trial errors, though independently
harmless, may in some circumstances rise by accretion to the level of reversible and
prejudicial error”].) We have concluded that the trial court did not err by overruling
defendant’s objections when he asserted that the prosecutor was cross-examining
defendant about matters that went beyond the scope of his direct examination, and that
any prosecutorial misconduct was not prejudicial. As we have not found multiple trial
errors, there is no cumulative prejudice.
       E.     Sentencing Error
       Defendant contends the trial court made numerous errors at the sentencing
hearing. He claims the trial court failed to state reasons for imposing consecutive terms
for seven of the lewd act counts, improperly relied on Doe’s age as a sentencing factor,
failed to impose an individualized sentence, failed to find certain factors in mitigation,
and erroneously imposed the middle term instead of the low term on certain counts.
              1.     Proceedings Below
       The sentencing hearing was held on January 9, 2013. The probation report
prepared for the sentencing hearing identified two possible factors in aggravation and

                                             17
three possible factors in mitigation. The suggested factors in aggravation included Doe’s
vulnerability due to her age and the fact that the crimes indicated planning. The
suggested factors in mitigation included the fact that Doe “was an initiator of, and a
willing participant in” the offenses, the fact that defendant had no prior record, and the
fact that defendant “voluntarily acknowledged wrongdoing before arrest or at an early
stage of the criminal process.”
       Before imposing sentence, the trial court made some comments about the “social
implications” of an adult having a sexual relationship with a minor. The court noted that
“under the laws we have, a 12 year old is simply not old enough, mature enough,
intelligent enough . . . to make the decisions to engage in sexual relations with someone
18 years of age or older.” The court also noted that when defendant took Doe to Los
Angeles with him, “anything” could have happened. The court noted that in similar
situations, people had turned to drug use or prostitution. The court also noted that “this
type of behavior can lead to pregnancy.” However, the court acknowledged, those things
“didn’t happen in this case.”
       In explaining how it calculated the 17-year sentence, the trial court stated, “I broke
down the counts [not by] act but by incident.”
       The trial court selected count 3 (the lewd act count based on the first time
defendant had sexual intercourse with Doe) as the principal term. The trial court imposed
the low term of three years for count 3, noting “that the victim was vulnerable based on
her age, but that is an aspect of the charges.” The court found that “the manner the crime
was carried out indicated some planning and sophistication,” but that defendant’s lack of
a prior criminal record was a factor in mitigation.
       The court imposed consecutive two-year sentences (one-third of the middle term)
for seven of the other lewd act counts (counts 5, 7, 10, 13, 16, 19, and 23). (See
§ 1170.1, subd. (a) [“The subordinate term for each consecutive offense shall consist of
one-third of the middle term of imprisonment prescribed for each other felony conviction

                                             18
for which a consecutive term of imprisonment is imposed.”].) The court imposed
concurrent terms of six years (the middle term) for all of the other lewd act counts
(counts 2, 9, 12, 15, 18, 20, and 22), and concurrent terms of three years (the middle
term) for all of the counts of contacting or communicating with a minor with the intent to
commit a sex offense (counts 4, 6, 8, 11, 14, and 17). The trial court did not specify its
reasons for imposing the middle term as to any of these counts.
              2.     Failure to State Reasons For Consecutive Terms
       Defendant contends the trial court erred by failing to state its reasons for imposing
consecutive sentences for counts 5, 7, 10, 13, 16, 19, and 23 (seven of the lewd act
counts) and that the failure of his attorney to object at sentencing constituted ineffective
assistance of counsel.
       The trial court must state its reasons for its sentencing choices, including the
choice to impose consecutive subordinate terms. (See § 1170, subd. (c); rule 4.406(b)(4)
& (5); People v. Powell (2011) 194 Cal.App.4th 1268, 1297.) Criteria affecting the
decision to impose consecutive rather than concurrent sentences include “[f]acts relating
to the crimes, including whether or not: [¶] (1) The crimes and their objectives were
predominantly independent of each other; [¶] (2) The crimes involved separate acts of
violence or threats of violence; or [¶] (3) The crimes were committed at different times
or separate places, rather than being committed so closely in time and place as to indicate
a single period of aberrant behavior.” (Rule 4.425(a).) In addition, “[a]ny circumstances
in aggravation or mitigation may be considered in deciding whether to impose
consecutive rather than concurrent sentences, except: [¶] (1) A fact used to impose the
upper term; [¶] (2) A fact used to otherwise enhance the defendant’s prison sentence; and
[¶] (3) A fact that is an element of the crime may not be used to impose consecutive
sentences.” (Rule 4.425(b).)
       Defendant acknowledges that trial counsel’s failure to request that the court state
its reasons waives the issue on appeal. (See People v. Scott (1994) 9 Cal.4th 331, 356

                                             19
(Scott).) Defendant contends there is no satisfactory explanation for trial counsel’s
failure to object. We disagree. Although the trial court did not explicitly state that it was
imposing consecutive terms because “[t]he crimes were committed at different times or
separate places” (rule 4.425(a)(3)), the court did state that in determining defendant’s
sentence, it “broke down the counts . . . by incident.” Taken in context, the court’s
statement appears to be an explanation of why it chose to impose consecutive terms for
seven of the lewd act counts—i.e., because defendant committed those lewd acts at
different times. (See People v. Sanchez (1994) 23 Cal.App.4th 1680, 1688.) Given the
court’s statement about calculating defendant’s sentence by incident, trial counsel could
reasonably have considered it unnecessary to request an express statement of reasons for
the imposition of consecutive sentences. (See People v. Alvarado (2001) 87 Cal.App.4th
178, 194; People v. Gopal (1985) 171 Cal.App.3d 524, 549 [trial court sufficiently stated
reasons for consecutive terms where it described offenses as occurring during “two
courses of conduct”].) Moreover, in light of the trial court’s statement, there is no
reasonable probability that “the result of the proceeding would have been different” if
trial counsel had objected. (See Strickland, supra, 466 U.S. at p. 694.)
              3.     Victim’s Age
       Defendant contends the trial court erred by basing its consecutive sentencing
decision on Doe’s age. Referring to the trial court’s comments about “the social
implications” of a 12 year old engaging in sexual intercourse, defendant points out that
“[a] fact that is an element of the crime may not be used to impose consecutive
sentences” (rule 4.425(b)(3)) and that Doe’s age was an element of the lewd act counts.
(See § 288, subd. (a).) Defendant again acknowledges that trial counsel’s failure to
object at sentencing waived this issue for appeal (see Scott, supra, 9 Cal.4th at p. 353),
and thus he contends that trial counsel’s failure to object constituted ineffective assistance
of counsel.



                                             20
       The record does not support defendant’s claim that the trial court found Doe’s age
to be a factor supporting the imposition of consecutive sentences. First, as noted above,
the trial court indicated it was imposing consecutive sentences for seven of the lewd act
counts because those counts occurred during separate incidents. The trial court’s
reference to Doe’s age came during its comments about “the social implications” of an
adult having a sexual relationship with a minor and the fact that the law precluded the
court from finding that a 12-year-old can be mature enough to make the decision to have
sexual intercourse with someone 18 years old. These comments were not made with
reference to the court’s decision to impose consecutive sentences. Rather, the court’s
comments appear to have been directed at the pleas for leniency made by defendant and
Doe’s family.4 Further, the trial court explicitly acknowledged that it could not use Doe’s
age as a sentencing factor because “that is an aspect of the charges.” Although the trial
court made the latter comment when explaining why it was imposing the low term for
count 3, nothing in the record indicates the trial court did not understand that the same
principle applied to the decision whether to impose consecutive terms. (See People v.
Mosley (1997) 53 Cal.App.4th 489, 496 (Mosley) [“a trial court is presumed to have been
aware of and followed the applicable law”].) And, because nothing in the record
indicates that the trial court found Doe’s age to be a factor supporting the imposition of
consecutive sentences, trial counsel was not ineffective for failing to object on that basis.
              4.     Individualized Sentence
       Defendant contends the trial court erred by referring to the consequences of other
similar crimes rather than focusing on the specific consequences and circumstances of his
crimes. Defendant again argues that trial counsel’s failure to object on this ground at
sentencing constituted ineffective assistance of counsel.

       4
        Doe’s mother spoke at the sentencing hearing. She expressed that she believed
her daughter was partly responsible and asked the trial court “for a reasonable sentence”
that would not take defendant’s “young adult life away from him.”

                                             21
       Citing Williams v. New York (1949) 337 U.S. 241 at page 247, defendant claims
the trial court’s reliance on other crimes “violates the principle that ‘the punishment
should fit the offender and not merely the crime.’ ” Defendant also cites to rule 4.410(a),
which lists seven “[g]eneral objectives of sentencing”: “(1) Protecting society; [¶]
(2) Punishing the defendant; [¶] (3) Encouraging the defendant to lead a law-abiding life
in the future and deterring him or her from future offenses; [¶] (4) Deterring others from
criminal conduct by demonstrating its consequences; [¶] (5) Preventing the defendant
from committing new crimes by isolating him or her for the period of incarceration; [¶]
(6) Securing restitution for the victims of crime; and [¶] (7) Achieving uniformity in
sentencing.” According to defendant, his sentence “is not supported by any of the stated
objectives.”
       To the extent the trial court’s sentencing decisions were influenced by its views on
the consequences of similar criminal conduct in other cases, we find no error and thus
that trial counsel was not ineffective for failing to object. The trial court’s comments
about the serious consequences that could have occurred due to defendant’s criminal
were appropriately focused on the objectives of deterring defendant and others from
engaging in similar conduct in the future. (See rule 4.410(a)(3) & (4).)
               5.    Failure to Consider Relevant Factors
       Defendant contends the trial court conducted “a flawed consideration of the
relevant factors” when imposing consecutive sentences. According to defendant, if the
trial court had reviewed all of the factors in rules 4.425 and 4.423, it would not have
imposed consecutive sentences. Defendant contends that trial counsel should have
objected.
       Defendant emphasizes that all of his offenses stemmed from his relationship with
Doe, who engaged in sexual intercourse consensually and claimed to love defendant.
Defendant suggests that multiple consensual sex acts, committed on different dates but
with the same victim, cannot support a finding that the offenses were committed “at

                                             22
different times or separate places, rather than being committed so closely in time and
place as to indicate a single period of aberrant behavior.” (Rule 4.425(a)(3).) However,
defendant cites no authority supporting this proposition. Defendant also argues that
consecutive sentences were unwarranted because his crimes do not meet the other two
criteria in rule 4.425(a): independent crimes and objectives, and separate acts of
violence. Defendant fails to recognize that “[o]nly one criterion . . . is necessary to
support a consecutive sentence. [Citation.]” (People v. Davis (1995) 10 Cal.4th 463, 552
(Davis).)
       Defendant also contends the evidence supports a number of “unenumerated”
circumstances in mitigation, which “warrant the imposition of concurrent sentences.”
First, citing to People v. Leon (2010) 181 Cal.App.4th 452 at pages 467 to 468, defendant
suggests that if consecutive sentences may be imposed where there are multiple victims,
concurrent terms should be imposed where there is only one victim. We find no support
for this claim in the cited case, rule 4.425, or any other authority. Second, defendant
contends concurrent terms were warranted because Doe’s mother requested the court
impose a lenient sentence, because of his youth, because he did not initially know Doe’s
age, because he attempted to break off the relationship, and because he “did not seek to
conceal the relationship.” However, defendant cites no authority to support his claim that
these factors may be considered when a trial court determines whether to impose
consecutive or concurrent sentences. While rule 4.425(b) allows the trial court to
consider “[a]ny circumstances in aggravation or mitigation,” the foregoing factors are not
among the factors in mitigation listed in rule 4.423.
       Citing to the enumerated factors in mitigation listed in the probation report,
defendant contends that if trial counsel had objected and asked the trial court to consider
all of the factors in mitigation (including defendant’s early admission of responsibility
and Doe’s role as an initiator of the crimes), the court would not have imposed
consecutive sentences. The gist of defendant’s claim is that the trial court was unaware

                                             23
that it could consider mitigating factors listed in rule 4.423 as well as the criterion listed
in rule 4.425. Nothing in the record indicates the trial court was unaware that it could
consider factors in mitigation, as expressly provided by rule 4.425(b). As stated above,
“a trial court is presumed to have been aware of and followed the applicable law.”
(Mosley, supra, 53 Cal.App.4th at p. 496.) And, again, “[o]nly one criterion . . . is
necessary to support a consecutive sentence. [Citation.]” (Davis, supra, 10 Cal.4th at
p. 552.) The record indicates that the trial court imposed consecutive sentences based on
one of the enumerated criteria: “[t]he crimes were committed at different times or
separate places.” (Rule 4.425(a)(3).) The trial court was not required to consider any
factors in mitigation. (Rule 4.425(b).) Thus, even if trial counsel had objected below and
argued that the trial court should consider the mitigating factors listed in the probation
report, there is no reasonable probability that “the result of the proceeding would have
been different.” (See Strickland, supra, 466 U.S. at p. 694.)
              6.      Imposition of Concurrent Middle Terms
       Defendant contends the trial court erred by imposing the middle term on counts 2,
9, 12, 15, 18, 20, and 22 (the lewd act counts for which the court imposed concurrent
terms). Defendant notes that the trial court imposed the low term for count 3 after
weighed the factors in aggravation and the factors in mitigation but imposed the middle
term for these counts despite the fact that the same reasoning applied.
       Defendant fails to acknowledge that the waiver doctrine applies to a claim that the
trial court “misweighed the various factors” relevant to a sentencing choice. (See Scott,
supra, 9 Cal.4th at p. 353.) Defendant does not claim that trial counsel was ineffective
for failing to object on this basis and thus we need not consider this claim.
       Even if we were to consider defendant’s claim, we would find no abuse of
discretion. “Generally, determination of the appropriate term is within the trial court’s
broad discretion [citation] and must be affirmed unless there is a clear showing the
sentence choice was arbitrary or irrational [citation]. ‘Sentencing courts have wide

                                              24
discretion in weighing aggravating and mitigating factors [citations], and may balance
them against each other in qualitative as well as quantitative terms.’ [Citation.]” (People
v. Lamb (1988) 206 Cal.App.3d 397, 401 (Lamb).)
       Here, the probation report suggested three factors in mitigation and two factors in
aggravation, one of which (Doe’s vulnerability due to her age) the trial court rejected.
The trial court expressly found one factor in mitigation (defendant’s lack of a prior
record) and one factor in aggravation (the crime indicated planning). The trial court also
indicated it agreed that Doe was an initiator in the criminal offenses, but the court made
no specific finding as to whether defendant “voluntarily acknowledged wrongdoing
before arrest or at an early stage of the criminal process.” Since defendant admitted he
was not entirely truthful with the police during his interview, the trial court could have
found that this was not a factor in mitigation. And even if there were quantitatively more
factors in mitigation than factors in aggravation, the trial court was not required to find
that the factors in mitigation qualitatively outweighed the factors in aggravation. (Lamb,
supra, 206 Cal.App.3d at p. 401.) The court could rationally have found that the
aggravating factor of planning “counterbalance[d]” the mitigating factors. (People v.
Jones (1985) 164 Cal.App.3d 1173, 1181.) We cannot say that the trial court made an
“arbitrary or irrational” decision when it imposed the middle term for counts 2, 9, 12, 15,
18, 20, and 22. (See ibid.)




                                             25
                                 IV.   DISPOSITION
     The judgment is affirmed.




                                  ___________________________________________
                                  BAMATTRE-MANOUKIAN, ACTING P.J.




WE CONCUR:




__________________________
MÁRQUEZ, J.




__________________________
GROVER, J.




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