Filed 5/10/16 P. v. Reyes 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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,                                                          H041629
                                                                    (San Benito County
         Plaintiff and Respondent,                                   Super. Ct. No. CR1000425)

             v.

MICHAEL REYES,

         Defendant and Appellant.



                                           STATEMENT OF THE CASE
         A jury convicted defendant Michael Reyes of one count of forcible sexual
penetration by a foreign object (Pen. Code, § 289, subd. (a)(1); count 2),1 five counts of
forcible lewd conduct on a child under the age of 14 (§ 288, subd. (b)(1); counts 3, 5, 7,
9, and 11), 12 counts of forcible rape (§ 261, subd. (a)(2); counts 4, 6, 8, 10, 13, 14, 16,
17, 19, 21, 24, and 26), three counts of forcible oral copulation (§ 288a, subd. (c)(2);
counts 12, 15, and 23), four counts of lewd conduct on a 14-year-old or 15-year-old child
(§ 288, subd. (c)(1); counts 18, 20, 22, and 25), and two counts of aggravated sexual
assault on a child (§ 269, subds. (a)(1) & (a)(5); counts 27 and 28). The trial court
sentenced defendant to a term of 30 years to life plus a consecutive term of 95 years
8 months.


         1
             Subsequent unspecified statutory references are to the Penal Code.
       Defendant appealed from the judgment of conviction. This court concluded that
there was insufficient evidence of force or duress to support counts 2-17, 19, 21, 23, 24,
and 26-28. This court additionally concluded that defendant was denied his right to
discharge retained counsel at the sentencing hearing. Given these conclusions, this court
issued the following disposition order: “The judgment is reversed. We remand to the
trial court with the following directions: (1) strike the aggravated sexual assault on a
child convictions in counts 27 and 28; (2) reduce the forcible lewd conduct convictions in
counts 3, 5, 7, 9 and 11 to non-forcible lewd conduct in violation of section 288,
subdivision (a); (3) reduce the forcible rape convictions in counts 4, 6, 8, 10, 13, 14, 16,
17, 19, 21, and 24 to unlawful sexual intercourse with a minor in violation of
section 261.5, subdivision (d); (4) reduce the forcible rape conviction in count 26 to
unlawful sexual intercourse with a minor in violation of section 261.5, subdivision (c);
(5) reduce the forcible sexual penetration by a foreign object conviction in count 2 to
non-forcible sexual penetration by a foreign object in violation of section 289,
subdivision (j); (6) reduce the forcible oral copulation convictions in counts 12, 15, and
23 to non-forcible oral copulation in violation of section 288a, subdivision (b)(2); (7)
conduct a new sentencing hearing for all counts with defendant afforded the opportunity
to be represented by a new attorney.” (People v. Reyes (Oct. 28, 2013, H036867)
[nonpub. opn.].)
       On remand, the trial court held a resentencing hearing and sentenced defendant to
a total prison term of 30 years 4 months. The trial court calculated this sentence in the
following manner: eight years for the section 289, subdivision (j) conviction in count 2;
11 consecutive one-year terms for the section 261.5, subdivision (d) convictions in counts
4, 6, 8, 10, 13, 14, 16, 17, 19, 21, and 24; four consecutive two-year terms for the section
288, subdivision (a) convictions counts 5, 7, 9 and 11; three consecutive eight-month
terms for the section 288a, subdivision (b)(2) convictions in counts 12, 15, and 23; a

                                              2
consecutive eight-month term for the section 288 subdivision (c)(1) conviction in count
25; and a consecutive eight-month term for the section 261.5, subdivision (c) conviction
in count 26. The trial court stayed the term on count 3 pursuant to section 654, and it
imposed concurrent terms for counts 18, 20, and 22. The trial court imposed a $6,300
restitution fine (§ 1202.4, subd. (b)) and imposed and suspended a $6,300 parole
revocation restitution fine (§ 1202.45).
       Defendant now appeals from the judgment entered following the resentencing
hearing. On appeal, he contends that defense counsel was ineffective in failing to object
to the trial court’s stated reason for imposing consecutive sentences. He additionally
contends that the restitution fine and the parole revocation restitution fine violate double
jeopardy principles. As set forth below, we will reduce the restitution fine and the parole
revocation restitution fine, and we will affirm the judgment as modified.
                            EVIDENCE PRESENTED AT TRIAL2
       Defendant dated Jane Doe’s mother for several years. When Doe was seven or
eight years old, defendant moved in with Doe and her mother. Defendant lived with Doe
and her mother “[o]ff and on” for approximately nine years. Over the course of those
years, they moved frequently and lived together in several different houses.
       Defendant had sexual contact with Doe from the time Doe was nine years old to
the time she was 16 years old.3 Described below are the sex acts that occurred at each of
the houses that defendant shared with Doe and her mother.




       2
         Our recitation of the evidence presented at trial is derived from the statement of
facts presented in our previous opinion, People v. Reyes, supra, H036867 [nonpub. opn.].
       3
          Doe was 18 years old at the time of trial, and defendant was 56 years old at the
time of trial.
                                              3
Counts 2, 3, and 27: San Benito Street in Hollister
        When Doe was nine years old, defendant approached Doe in the hallway of their
house on San Benito Street in Hollister. He placed his finger in her vagina. Doe
“jumped up because it hurt.” Defendant then tried to reinsert his finger into Doe’s
vagina.
        Doe told her mother that defendant had “touched” her. Doe’s mother confronted
defendant with the information, and defendant said that he and Doe had been wrestling
and playing around.
Counts 4-11 and 28: Howard Court in Hollister
        When Doe was 12 years old, she and defendant were in the kitchen at their home
on Howard Court in Hollister, and defendant told her that he “wanted to show [her] how
it was done.” Defendant said that “it was just going to happen that one time.” Defendant
then had sexual intercourse with Doe in her mother’s bedroom. Doe experienced pain
during the intercourse. Defendant was aware that Doe was in pain, and he commented
that “it was too tight.” Doe “felt comfortable” after the intercourse because defendant
assured her that it would happen only that one time.
        On Doe’s 13th birthday, defendant asked Doe if she “wanted to do it.” Doe said
no. Defendant “kept asking.” Doe “just said okay,” and they “ended up” having sexual
intercourse.
        While living at the house on Howard Court, defendant had sexual intercourse with
Doe more than 20 times. The intercourse always occurred while Doe’s mother was at
work.
Counts 12-16: Pinot Noir Court in Los Banos
          When Doe was 14 years old, defendant, Doe, and Doe’s mother moved into a
house on Pinot Noir Court in Los Banos. While living on Pinot Noir Court, defendant
“would want to have sex” with Doe before she went to school. Defendant would call

                                            4
Doe’s name, and Doe “already knew he wanted to have sex.” Defendant would tell Doe
to come into one of the bedrooms, and defendant and Doe “would have sex.”
       Defendant, Doe, and Doe’s mother lived on Pinot Noir Court for seven months.
While living on Pinot Noir Court, defendant and Doe had sexual intercourse
approximately once a week. On one occasion when they had sexual intercourse, Doe put
her mouth on defendant’s “private area.” On other occasions when they had sexual
intercourse, defendant put his mouth on Doe’s “private area.”
       After defendant had sexual intercourse with Doe, Doe would act like it had not
happened. Doe explained that she did not want to think about defendant.
       Doe felt uncomfortable when she was alone with defendant at the house on Pinot
Noir Court. Doe explained that she knew defendant would want to have sexual
intercourse if she was alone with defendant.
Counts 17-26: East First Street in Morgan Hill
       When Doe was 15 years old, defendant, Doe, and Doe’s mother moved into a
house on East First Street in Morgan Hill. They lived in that house for one and a half
years, and defendant and Doe had sexual intercourse one to two times a week while
living there.
       Doe explained that defendant would call her into one of the house’s rooms, and
she and defendant “would have sex.” On many of the occasions when they had sexual
intercourse, defendant would also perform oral sex on Doe. Defendant stopped having
sexual intercourse with Doe around the time she turned 16 years old.
       Doe testified that she did not like being alone with defendant during the time they
lived on East First Street. Doe explained that defendant made her feel uncomfortable
when they were alone together.




                                               5
Facts Pertaining to All Counts
       Before having sexual intercourse with Doe, defendant would always kiss her and
touch her breasts. On some occasions, Doe “would get on top of him” during the
intercourse.
       Doe always refused to have sexual intercourse in her own bedroom. Doe did
everything she could to prevent the intercourse from happening in her bedroom.
       Sometimes Doe told defendant that she did not want to have sexual intercourse
with him. When Doe refused to have sexual intercourse with him, defendant “would get
mad” and would not talk to her for a few days. Doe “cared for” defendant, and she did
not like it when he would not talk to her.
       Doe testified that she and defendant “had good times” together. She explained
that she liked to wrestle with defendant. She also enjoyed going on motorcycle rides with
defendant.
       Doe did not fear defendant. Defendant was protective of Doe, and he told people
that he was her father.
       Defendant’s relationship with Doe’s mother was “[o]ff and on” and “[v]ery
unstable.” Defendant would move out of the houses he shared with Doe and her mother
when he “was caught cheating” with other women.
Doe’s Letter to her Mother and the Police Investigation
       When Doe was 17 years old, Doe’s mother discovered that Doe was involved in a
lesbian relationship. Doe’s mother did not like Doe’s sexual preference, and she did not
talk to Doe for a few days. In order to rehabilitate her relationship with her mother, Doe
wrote her mother a letter. In the letter, Doe stated that she “turned to girls” because
defendant had molested her. After reading the letter, Doe’s mother contacted the police.
       The police arranged for Doe to place a recorded phone call to defendant. A tape
of the call was played for the jury. During the call, Doe told defendant that she was

                                              6
“more comfortable with girls” because of “what happened between” her and defendant.
Defendant responded, “Why? You think all boys and men are like that?” Defendant also
stated, “[I]t happened to me when I was a kid.” Doe asked, “If you knew it hurt so bad,
why—why did you do it to somebody else?” Defendant responded, “I think it was just—
it was just a sexual thing and—that’s exactly what it was.” Defendant continued, “I
know . . . we’ve done some stupid things, but I am sorry. . . . I love you to death. And,
hey, I mean it. When you see me the way I am right now, it’s pure[,] natural[,] just plain,
clean love.”
Expert Testimony
       An expert witness testified regarding Child Sexual Abuse Accommodation
Syndrome (CSAAS). CSAAS is a “description of unexpected conditions and situations
that typically occur in child sexual abuse cases that often are in conflict with many
people’s preconceived ideas about child sexual abuse.” The expert testified that children
who have been victims of sexual abuse often wait to report the crime and continue to
interact with the offender. While children are experiencing sexual abuse, they frequently
“act as if nothing is wrong.” A “triggering event,” such as a “heated family argument,”
will often prompt an abused child to report the molestation.
Defense Evidence
       Defendant’s daughter, Janelle Reyes, testified that she and Doe were very close
friends. Ms. Reyes frequently saw defendant and Doe interact. Ms. Reyes never had the
impression that Doe did not want to be alone with defendant. Doe never told Ms. Reyes
that she was afraid of defendant.
       Defendant’s brother, Frank Reyes, also testified for the defense. Mr. Reyes
testified that he and defendant had remodeled a home owned by defendant and Doe’s
mother.



                                             7
       The defense theory was that Doe fabricated the allegation of child molestation in
response to her mother’s negative reaction to her lesbian relationship, and that Doe’s
mother reported the molestation allegation in order to take advantage of defendant’s
improvements to the house they owned together.
                                         DISCUSSION
I. Defense Counsel’s Failure to Object to the Trial Court’s Stated Reason for
Imposing Consecutive Terms
       Defendant contends that the judgment must be reversed because defense counsel
rendered ineffective assistance in failing to object to the trial court’s stated reason for
imposing consecutive sentences. Specifically, defendant asserts that counsel was
ineffective because the trial court’s stated reason for imposing 20 consecutive terms—the
separate nature of each act—was improper given that “the accusatory pleading sets forth
twelve distinct episodes of criminal conduct.” Defendant emphasizes that the trial court
was required to impose concurrent terms for the offenses within each “episode,” resulting
in one consecutive term for each “episode.”
       A. Background
       At the resentencing hearing, the prosecutor and defense counsel presented
arguments. The prosecutor argued for numerous consecutive sentences. Defense counsel
argued that many of defendant’s offenses were “same occasion” crimes subject to
concurrent sentencing. Defense counsel asserted that there were “11 different instances”
of criminal sexual conduct, which required the trial court to impose concurrent terms for
the offenses within each “instance.”
       Following the parties’ arguments, the trial court noted that it had read “all of the
transcript of the trial.” The trial court then sentenced defendant. The trial court imposed
most of the terms consecutively, including many within each “instance” described by
defense counsel. Count 4 was the first count upon which the trial court imposed a

                                               8
consecutive term. When it imposed the consecutive term for that count, the trial court
explained: “The consecutive imposition is based on the separate nature of the act.”
Thereafter, for each count upon which the trial court imposed a consecutive term, the trial
court explained that the consecutive imposition was based on the “separate nature of the
act,” “the nature of the act being separate,” or the “separate nature of the crime.”
Defense counsel never objected to the trial court’s stated rationale for imposing
consecutive terms.
       B. Legal Principles
              1. Ineffective Assistance of Counsel
       The defendant bears the burden of proving ineffective assistance of counsel.
(People v. Carter (2003) 30 Cal.4th 1166, 1211.) “To prevail on an ineffective assistance
of counsel claim, appellant must prove two elements: (1) trial counsel’s deficient
performance and (2) prejudice as a result of that performance.” (People v. Martinez
(2014) 226 Cal.App.4th 1169, 1189, citing Strickland v. Washington (1984) 466 U.S.
668, 687 (Strickland).)
       Deficient performance is established “if the record demonstrates that counsel’s
performance fell below an objective standard of reasonableness under the prevailing
norms of practice.” (In re Alvernaz (1992) 2 Cal.4th 924, 937.) Prejudice is established
if “there is a reasonable probability that defendant would have obtained a more favorable
result absent counsel’s shortcomings.” (People v. Cunningham (2001) 25 Cal.4th 926,
1003.) “A reasonable probability is a probability sufficient to undermine confidence in
the outcome.” (Strickland, supra, 466 U.S. at p. 694.)
       The United States Supreme Court has explained: “The object of an ineffectiveness
claim is not to grade counsel’s performance. 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.” (Strickland, supra, 466 U.S. at p. 697.)

                                              9
       2. Consecutive Sentences
       “Section 669 grants the trial court broad discretion to impose consecutive
sentences when a person is convicted of two or more crimes.” (People v. Shaw (2004)
122 Cal.App.4th 453, 458.)
       The trial court is required to “state the reasons for its sentence choice on the record
at the time of sentencing.” (§ 1170, subd. (c).) The imposition of a consecutive term
“represents a sentencing choice” for which the trial court must state reasons. (People v.
Coelho (2001) 89 Cal.App.4th 861, 886 (Coelho).)
       Rule 4.425 of the California Rules of Court4 “sets forth the criteria affecting the
decision to impose consecutive rather than concurrent terms.” (Coelho, supra, 89
Cal.App.4th at p. 886.) Those criteria include 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).) Only a single
aggravating factor is required to impose consecutive terms. (People v. Osband (1996)13
Cal.4th 622, 728-729; People v. Coulter (1989) 209 Cal.App.3d 506, 516.) The factors
enumerated in rule 4.425 “reflect a policy that greater culpability warrants consecutive
terms.” (Coelho, supra, 89 Cal.App.4th at p. 888.)
       When a defendant commits multiple sex crimes on a single occasion, a trial court
may properly conclude that those crimes and their objectives were predominately
independent of each other for purposes of rule 4.425. (See Coelho, supra, 89
Cal.App.4th at pp. 886-888.) Although the commission of multiple sex crimes on a
single occasion reflects a general objective of sexual gratification, “we do not believe that



       4
           Subsequent unspecified rule references are to the California Rules of Court.
                                             10
such a broad view of a perpetrator’s objective should invariably determine whether the
objectives of numerous sex crimes were predominantly independent of each other.” (Id.
at p. 887.) Thus, the commission of multiple sex crimes may reflect separate and distinct
objectives, namely “to achieve different forms of sexual gratification.” (Id. at p. 888.)
The “ ‘proper view [is] to recognize that a “defendant who attempts to achieve sexual
gratification by committing a number of base criminal acts on his victim is substantially
more culpable than a defendant who commits only one such act.” ’ ” (Ibid.) Because
different sex acts cause a victim to suffer differing forms of violation, “a defendant who
decides to commit different types of sexual acts—e.g., digital penetration, oral
copulation, and sodomy—may reasonably be deemed more culpable than a person who
repeats one of those acts three times, perhaps in rapid succession without much thought.”
(Ibid.) Where the defendant had “the victim masturbate him and then digitally
penetrat[ed] her,” a trial court properly concluded that the crimes and their objectives
were predominately independent of each other under rule 4.425. (Id. at p. 887.)
       C. Defendant has Failed to Show Ineffective Assistance of Counsel
       Defendant’s claim of ineffective assistance is premised on the theory that the trial
court lacked authority to impose consecutive sentences for sex offenses that occurred on
the same occasion. Contrary to defendant’s claim, the trial court had authority to impose
consecutive sentences for sex offenses committed on the same occasion.
       Under rule 4.425(a)(1), consecutive sentencing is appropriate if the “crimes and
their objectives were predominantly independent of each other,” even if the crimes
occurred on the same occasion. (Rule 4.425(a)(1); see Coelho, supra, 89 Cal.App.4th at
pp. 886-888.) The trial court’s stated reason for sentencing defendant to consecutive
terms—the separate nature of each act—appears to have been a reference to
rule 4.425(a)(1). Moreover, the record shows that defendant’s crimes and their objectives
were in fact predominately independent of each other. As defendant notes, each of the

                                             11
“episodes of criminal conduct” involved “acts of statutory rape and lewd touching, or
various combinations of these acts with oral copulation.” Defendant himself describes
the lewd touching within each “episode” as “separate acts of kissing and touching of the
breasts” that occurred in addition to the statutory rape and oral copulation. Given that
defendant committed separate, distinct sex acts within each “episode,” we do not believe
that it was improper for the trial court to conclude that the crimes within each “episode”
were predominately independent of each other. (See Coelho, supra, 89 Cal.App.4th at
p. 887 [where the defendant committed two different types of sex acts, those acts were
predominately independent of each other].) The trial court also could have properly
concluded that the crimes within each “episode” had predominately different objectives.
Although defendant contends that the crimes within each “episode” all involved “sexual”
intent, we will not accept such a broad view of defendant’s intent. (See id. at p. 887
[rejecting the objective of “sexual gratification” as overly “broad”.) Because defendant
engaged in different types of sexual conduct during each “episode,” the trial court could
have properly concluded that defendant intended to achieve a different form of sexual
gratification for each sex crime committed within each “episode.” Thus, we must
conclude that the trial court had authority to impose consecutive sentences under
rule 4.425(a)(1).
       Because the trial court had authority to impose consecutive sentences under
rule 4.425(a)(1), defendant’s claim of ineffective assistance necessarily fails. To succeed
on his claim, defendant must demonstrate a reasonable probability that he would have
obtained a more favorable result absent counsel’s shortcomings. Given that the trial
court’s stated reason for imposing consecutive terms appears to have been a reference to
its proper authority under rule 4.425(a)(1), there is not a reasonable probability that
defendant would have received a lesser sentence if counsel had objected to the trial



                                             12
court’s stated reason for imposing consecutive terms. We therefore cannot reverse due to
ineffective assistance of counsel.
       We finally note that the trial court’s announcement of its reasoning for consecutive
sentencing was very far from the best practice. We also note that defense counsel’s
argument in support of concurrent sentencing was difficult to understand. Given,
however, that defendant would not have obtained a better result if defense counsel had
objected to the trial court’s stated reason for imposing consecutive sentences, defendant’s
ineffective assistance claim fails.
II. The Restitution Fine and the Parole Revocation Restitution Fine
       Defendant argues that the $6,300 restitution fine and the $6,300 parole revocation
restitution fine violate double jeopardy principles, and he urges this court to reduce them.
He contends that each of the fines must be reduced to $5,400, the amount set for those
fines at his original sentencing hearing. The Attorney General concedes that the fines
may be reduced. (See People v. Hanson (2000) 23 Cal.4th 355, 357 [an increased
restitution fine following a successful appeal violates double jeopardy protections].) We
accept the concession. We will reduce the restitution fine to $5,400, and we will reduce
the parole revocation restitution fine to $5,400.
                                       DISPOSITION
       The $6,300 restitution fine (§ 1202.4, subd. (b)) is reduced to $5,400, and the
$6,300 parole revocation restitution fine (§ 1202.45) is reduced to $5,400. As so
modified, the judgment is affirmed.




                                             13
                                 ______________________________________
                                            RUSHING, P.J.




WE CONCUR:




____________________________________
           MÁRQUEZ, J.




____________________________________
           GROVER, J.




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