Filed 3/27/13 P. v. Agudelo CA2/7
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


THE PEOPLE,                                                          B236696

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. VA114688)
         v.

ASDRUBAL AGUDELO,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County, Lori Ann
Fournier, Judge. Affirmed.
         David M. Thompson, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Mary Sanchez and David
Zarmi, Deputy Attorneys General, for Plaintiff and Respondent
                                           ______________________
       A jury convicted Asdrubal Agudelo of lewd and lascivious conduct with a child
under 14 years old. Evidence at trial included recorded telephone calls between the
victim, Amy D., and Agudelo, which were initiated by police after Amy had reported the
abuse to her mother. Telling Agudelo the police had contacted her to ask questions about
him, Agudelo told her to deny everything. After he became suspicious the calls were
being monitored, Agudelo denied any misconduct had occurred. On appeal Agudelo
contends the trial court erred in instructing the jury regarding adoptive admissions and
abused its discretion in sentencing him to the upper term of eight years. He also contends
he received constitutionally ineffective assistance from his trial counsel. We affirm.
                 FACTUAL AND PROCEDURAL BACKGROUND
       1. The Charges
       Agudelo was charged by amended information with two counts of lewd and
lascivious conduct with a child under 14 years old (Pen. Code, § 288, subd. (a)) (counts 1
       1
and 2), forcible rape (§ 261, subd. (a)(2)) (count 3), lewd and lascivious conduct by force
with a child under 14 (§ 288, subd. (b)(1)) (count 4) and aggravated sexual assault of a
child under 14 years old and seven or more years younger than the perpetrator (§ 269,
subd. (a)(1)) (count 5). After counts 1 and 3 were dismissed in the furtherance of justice
(§ 1385), Agudelo pleaded not guilty to the remaining counts.
       2. Summary of the Evidence Presented at Trial
              a. The People’s evidence
       Fifteen-year-old Amy testified Agudelo began dating her mother when Amy was
five or six years old. Although Agudelo and Amy’s mother stopped dating in early 2007,
they remained friends. Amy continued to see Agudelo and his son, Omar, two to three
times a week. Amy called Agudelo “Pa.”
       In June 2007 Agudelo told Amy’s mother he was going to take Amy, then
10 years old, shopping for a graduation dress. Instead, Agudelo took Amy to his
apartment where he pulled her onto the bed and penetrated her with his penis. Agudelo

1      Statutory references are the Penal Code.

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told Amy not to tell anyone because he would go to jail and she would never see Omar
again. Amy was afraid to tell her mother because she was very strict—she had beaten
and screamed at Amy—and Amy did not think her mother would believe her.
       In late 2008 Omar’s mother told a social worker she should interview Amy to
determine if she had been sexually abused because Amy was drawing pictures of penises
and showing them to Omar. Amy testified she denied being sexually abused at that time
because she was scared and “didn’t feel ready to open up.”
       In June 2009 Agudelo picked Amy up to play with Omar but instead took her to
his apartment. After they smoked marijuana, Omar penetrated her with his penis. He
again told Amy not to tell anyone because he would go to jail and she would never see
Omar again, which saddened Amy because she felt like a sister to him.
       In March 2010 Amy’s mother discovered Amy had marijuana. Amy testified,
after she told her mother Agudelo had given her the marijuana, her mother “pulled
together in her head that if he’s giving me drugs, then most likely he’s doing something
with me. So she asked me if he ever did anything with me, and I told her the truth.”
Amy’s mother took her to the police. After Amy described both incidents to Los Angeles
Police Detective Carlos Fernandez, Fernandez called Agudelo and arranged an interview.
Agudelo subsequently retained an attorney, who rescheduled the interview.
       The day before the interview Detective Fernandez had Amy call Agudelo from the
police station. They spoke three times, and the recorded calls were played for the jury.
The transcript from the first call includes the following exchange:
       “[Amy]: Pa, it’s Amy.
       “[Agudelo]: What’s up?
       “[Amy]: Oh, I don’t know, they came to my school and they were saying they
wanted to ask me something about you. Have you said anything to them?
       “[Agudelo]: No. [Unintelligible.] What’s happening?
       “[Amy]: I don’t know. I’m afraid.
       “[Agudelo]: No, but what happened. You’re not telling me anything, let’s see,
they are going to throw me in jail. What happened?

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       “[Amy]: But why? I didn’t say anything.
       “[Agudelo]: You haven’t said anything?
       “[Amy]: No!
       “[Agudelo]: No, because they are going to throw me in jail.
       “[Amy]: What shall I say if they ask me something?
        [¶] . . . . [¶]
       “[Agudelo]: I’m not going to say anything to your mom, no, not this. Nothing.
You have to deny everything. Or won’t you?
       “[Amy]: But what about if they ask me if I’ve been with you or something.
       “[Agudelo]: No, no. You say no, that I’ve never touched you, never, just that I’ve
kissed you, that I’ve kissed you on the cheek. Or you kiss me, you greet me. Please,
deny everything.
       “[Amy]: What about drugs?
       “[Agudelo]: Not that either . . . .”
       After Amy pressed Agudelo as to what she should do if the authorities gave her a
physical examination—“a sex exam, Pa”—Agudelo responded he had a copy of a letter
Amy had written to Miguel Gomez, her former boyfriend, stating she had lost her
virginity to him: “Everything you wrote that you, you, you gave to Miguel. Everything
you wrote. I have it. Deny it to the very end, deny it. No, you can say, you can say
that.” Later, Amy asked, “What if I tell them that we had sex just once.” Agudelo
responded, “No, no, no. Don’t say that, Amy, don’t ever say that, not on your friggin
life.” “Even if you say it was just once, they’ll throw me in jail for life! At once!” Amy
asked, “Do I have to lie?” Agudelo responded, “Yeah.” Amy confirmed, “Then should I
lie?” Agudelo responded, “I don’t know. I mean, how could you say oh—if—they are
going to tell me—they are going to put me in jail for life if they say that I, I abused a
minor, they’ll put me in jail.” Amy kept asking if she should lie, and Agudelo began to
get suspicious, asking who was with Amy.
       During the second call Amy told Agudelo the police were meeting with her
mother and Amy had told the police she and Agudelo had sex once because Agudelo had

                                              4
not told her what to say. Agudelo exclaimed, “Not that Amy. You can’t Amy.”
Eventually, Agudelo asked if someone was with Amy and whether he was being
recorded. Later he denied having sex with Amy or touching her. During the third call
Amy kept asking Agudelo whether he wanted her to lie, and Agudelo again asked if he
was being recorded. He also denied touching Amy.
              b. The defense evidence
       Agudelo testified he loved Amy and treated her like a daughter, but she would lie
to get what she wanted. In November 2009 Amy was upset Gomez had broken up with
her. She wrote the letter telling Gomez he was her first sexual partner while she was in
Agudelo’s car. Although Amy gave the letter to Gomez, she left a draft in the car.
Agudelo testified he told Amy to “deny everything” because he was worried he had left
Amy unsupervised at various times, especially with Gomez, and had taken her places
without her mother’s consent.
       Agudelo also presented the testimony of several witnesses. Gomez testified Amy
and Agudelo had a father-daughter relationship, Gomez had never observed any sexual
nature to their relationship and Agudelo was careful to allow Amy to be alone with
Gomez only in public. A friend of Amy’s from middle school testified Amy and
Agudelo always interacted like a stepfather and daughter and Amy had a reputation for
lying. Agudelo’s sister testified she never saw Agudelo exhibit lewd intentions toward
children at any of the many family gathering she had attended with him and Agudelo had
a reputation for telling the truth. Dr. Hy Malinek. a clinical psychologist, testified he and
another doctor who administered psychological tests did not find evidence of sexual
deviance or pedophilia: If the alleged conduct had occurred, the incidents appear to have
been isolated, situational and impulsive acts separated by two years.
       3. The Jury Instruction Concerning Adoptive Admissions
       The trial court informed counsel it intended to instruct the jury on adoptive
admissions “because, based on my reading of the law, I have a sua sponte duty to include
it if there is anything . . . the jury could find is an adoptive admission.” Overruling the
prosecutor and defense counsel’s general objections and finding the instruction was

                                              5
warranted “based on the evidence,” the court instructed the jury with CALCRIM
No. 357: “If you conclude that someone made a statement outside of court that accused
the defendant of the crime or tended to connect the defendant with the commission of the
crime and the defendant did not deny it, you must decide whether each of the following is
true: [¶] The statement was made to the defendant or made in his presence. [¶] The
defendant heard and understood the statement. [¶] The defendant would, under all the
circumstances, naturally have denied the statement if he thought it was not true. The
defendant could have denied it but did not. If you decide that all of these requirements
have been met, you may conclude that the defendant admitted the statement was true. If
you decide that any of these requirements has not been met, you must not consider either
the statement or the defendant’s response for any purpose. ”
       4. The Jury’s Verdict and Sentencing
       The jury found Agudelo guilty of lewd and lascivious conduct with a child under
14 years old, but was unable to reach a verdict on the remaining charges of lewd and
lascivious conduct by force and aggravated sexual assault. At the sentencing hearing
defense counsel contended Agudelo should be sentenced to the low term of three years.
(§ 288, subd. (a).) Counsel argued several witnesses had testified Agudelo was a kind
father, there were no other incidents of sexual misconduct and the psychological testing
demonstrated there was a very low risk of future dangerousness.
       In sentencing Agudelo to the upper term of eight years in state prison, the court
explained, “Mr. Agudelo, this young girl looked to you as a father figure. She didn’t
have a father of her own to guide her. She had a life that was filled with turmoil based on
her relationship with her mother. You took advantage of that troubled relationship. And
you gained her trust by allowing her to do things that her mother didn’t allow. . . . I have
considered the statements by your children. It seems that you were a fabulous father to
your own children, but you didn’t think of what would happen based on your actions.
You didn’t show any remorse for your actions. When you were confronted by Amy D.
during that phone call, you tried to convince her to lie to protect you. . . . This was not a



                                              6
mere touching. You had . . . sexual intercourse with a 12-year-old girl who looked to you
and called you Pa, thought of you as her father.”
                                       DISCUSSION
       1. The Trial Court Properly Instructed the Jury on Adoptive Admissions
       A trial court in a criminal case has a duty to instruct on general principles of law
applicable to the case (People v. Blair (2005) 36 Cal.4th 686, 745), that is, “‘“‘those
principles closely and openly connected with the facts before the court, and which are
necessary for the jury’s understanding of the case.’”’” (People v. Valdez (2004)
32 Cal.4th 73, 115.) However, “[i]t is error to give an instruction which, while correctly
stating a principle of law, has no application to the facts of the case.” (People v. Guiton
(1993) 4 Cal.4th 1116, 1129.) “In assessing a claim of instructional error, ‘we must view
a challenged portion “in the context of the instructions as a whole and the trial record” to
determine “‘whether there is a reasonable likelihood that the jury has applied the
challenged instruction in a way’ that violates the Constitution.”’” (People v. Jablonski
(2006) 37 Cal.4th 774, 831; see Guiton, at p. 1130 [error in giving instruction that has no
application to facts reviewed under harmless error standard in People v. Watson (1956)
46 Cal.2d 818].)
       Agudelo contends the trial court has no sua sponte duty to instruct on adoptive
admissions. He further argues the instruction was not supported by substantial evidence
because the record is clear he vehemently denied Amy’s accusations.
       Although it is true the trial court does not have a sua sponte duty to instruct on
adoptive admissions, it “may certainly instruct on the matter if [it] think[s] it best to do
so.” (People v. Carter (2003) 30 Cal.4th 1166, 1198.) Moreover, contrary to Agudelo’s
characterization of the record, the trial court properly determined the instruction was
warranted by the evidence. During the first call with Amy, before he became suspicious
it was being recorded, Agudelo repeatedly told Amy to deny the accusations, but did not
deny them himself. Indeed, at the outset of the conversation, when Amy simply told
Agudelo the police wanted to ask her something about Agudelo, he twice responded he
would be thrown in jail. In addition, when Amy suggested she tell the police she and

                                              7
Agudelo “had sex just once,” his response, far from being a denial of his criminal acts,
was virtually an admission: “Even if you say it was just once, they’ll throw me in jail for
life!” While Agudelo may have later denied the accusations, that initial exchange was
sufficient evidence to warrant the instruction. It was well within the province of the jury
to decide whether Agudelo was telling the truth when he later explained he simply was
afraid he would get in trouble for failing to properly supervise Amy.
       2. Agudelo Has Forfeited His Claim of Sentencing Error
       Courts have broad sentencing discretion, and we review a trial court’s sentencing
choices for abuse of that discretion. We will reverse a sentence only if there is a clear
showing it was arbitrary or irrational. (People v. Sandoval (2007) 41 Cal.4th 825, 847;
People v. Moberly (2009) 176 Cal.App.4th 1191, 1196; People v. Avalos (1996)
47 Cal.App.4th 1569, 1582-1583.) A trial court abuses its discretion if it relies upon
circumstances that are not relevant to, or that otherwise constitute an improper basis for,
the sentencing decision. (Sandoval, at p. 847; Moberly, at p. 1196.)
       Under section 1170, subdivision (b), when a statute specifies three possible terms,
choice of the appropriate term rests within the trial court’s discretion. The court may
consider the record in the case, the probation report, evidence introduced at the
sentencing hearing and “any other factor reasonably related to the sentencing decision”
                                            2
(California Rules of Court, rule 4.420(b)), and “shall select the term which, in the court’s
discretion, best serves the interests of justice” (§ 1170, subd. (b)). The existence of a
single aggravating circumstance is legally sufficient to make the defendant eligible for
imposition of the upper term. (People v. Black (2007) 41 Cal.4th 799, 816; People v.
Osband (1996) 13 Cal.4th 622, 728.)
       Here, the trial court identified as aggravating factors Amy’s vulnerability and the
fact Agudelo took advantage of a position of trust and confidence to commit the offense.
(Rule 4.421(a)(3) and (a)(1).) Agudelo does not contest these factors. Rather, he
contends the very nature of lewd conduct with a child implicates a particularly vulnerable

2      References to rule or rules are to the California Rules of Court.

                                                8
victim and some violation of a position of trust, thus they are not “particularly egregious
factors” that make one form of the offense worse than another. (See People v. Moreno
(1982) 128 Cal.App.3d 103, 110 [“essence of ‘aggravation’ relates to the effect of a
particular fact in making the offense distinctively worse than the ordinary”].) Agudelo
also argues the trial court failed to consider mitigating factors and “additional criteria
reasonably related” to the sentencing choice (rule 4.408), including that he had exercised
caution so no harm was done or threatened against Amy (rule 4.423(a)(6)); he only took
advantage of her twice over a several-year period; he was gainfully employed and
supported his family; one of his son’s testified what an important influence Agudelo had
been on his life; several friends and professional associates vouched for his honesty,
dependability and work ethic; and the psychological reports found him to be low risk for
future offense.
       Agudelo has forfeited his claim of error by failing to object at the time of
sentencing that the court had not fully considered all relevant factors. “Ordinarily, an
appellate court will not consider a claim of error if an objection could have been, but was
not, made in the lower court. [Citation.] The reason for this rule is that ‘[i]t is both
unfair and inefficient to permit a claim of error on appeal that, if timely brought to the
attention of the trial court, could have been easily corrected or avoided.’” (People v.
French (2008) 43 Cal.4th 36, 46.) This forfeiture (waiver) doctrine applies to claims the
trial court failed to properly make a discretionary sentencing choice. (People v. Scott
(1994) 9 Cal.4th 331, 356 [“complaints about the manner in which the trial court
exercises its sentencing discretion and articulates its supporting reasons cannot be raised
for the first time on appeal”]; see People v. Tillman (2000) 22 Cal.4th 300, 303 [People’s
failure to object to trial court’s failure to state on the record its reasons for not imposing a
restitution fine forfeited claim on appeal].) As the Supreme Court explained in Scott,
“[T]he waiver doctrine should apply to claims involving the trial court’s failure to
properly make or articulate its discretionary sentencing choices. Included in this category
are cases in which the stated reasons allegedly do not apply to the particular cases, and
case in which the court purportedly erred because it double-counted a particular

                                               9
sentencing factor, misweighed the various factors, or failed to state any reasons or give a
sufficient number of valid reasons. [¶] . . . Although the court is required to impose
sentence in a lawful manner, counsel is charged with understanding, advocating, and
clarifying permissible sentencing choices at the hearing. Routine defects in the court’s
statement of reasons are easily prevented and corrected if called to the court’s attention.
As in other waiver cases, we hope to reduce the number of errors committed in the first
instance and preserve the judicial resources otherwise used to correct them.” (Scott, at
p. 353.)
       Agudelo contends he did not forfeit his sentencing claim because he presented to
the trial court the factors he believed warranted a low term. To be sure, Agudelo
identified some of those factors—the testimony he had been a good father and the results
of the psychological test indicating he was at low risk for reoffending—but, he did not
argue the aggravating factors found by the court were inherent in any case of lewd
conduct with a child under 14, an argument palpably without merit in any event.
Additionally, he did not identify one of the mitigating factors he now urges on appeal,
which is the basis for his ineffective assistance of counsel claim, that he exercised caution
not to harm Amy and no physical harm was done or threatened (rule 4.423(a)(6)).
Moreover, the court did assess all the factors Agudelo presented to it, stating, “I have
read and considered the probation report filed in this case, the Static 99 assessment
[finding minimal risk of sexual recidivism] and the sentencing memos by both parties.”
       3. Agudelo Has Failed To Demonstrate His Counsel Was Ineffective for Failing
          To Argue Amy Was Not Harmed as a Mitigating Factor
       To escape the forfeiture doctrine, Agudelo contends his counsel was
constitutionally ineffective in failing to argue as a mitigating factor Amy was neither
harmed nor threatened (rule 4.423(a)(6)). To establish ineffective assistance of counsel, a
defendant must demonstrate that “(1) counsel’s representation was deficient in falling
below an objective standard of reasonableness under prevailing professional norms, and
(2) counsel’s deficient representation subjected the petitioner to prejudice, i.e., there is a
reasonable probability that, but for counsel’s failings, the result would have been more


                                              10
favorable to the petitioner.” (In re Neely (1993) 6 Cal.4th 901, 908; accord, Strickland v.
Washington (1984) 466 U.S. 668, 686 [104 S.Ct. 2052, 80 L.Ed.2d 674].) “‘The burden
of sustaining a charge of inadequate or ineffective representation is upon the defendant.
The proof . . . must be a demonstrable reality and not a speculative matter.’” (People v.
Karis (1988) 46 Cal.3d 612, 656.) There is a presumption the challenged action “‘might
be considered sound trial strategy’” under the circumstances. (Strickland, at p. 689;
accord, People v. Dennis (1998) 17 Cal.4th 468, 541.)
       On direct appeal a conviction will be reversed for ineffective assistance of counsel
only when the record demonstrates there could have been no rational tactical purpose for
counsel’s challenged act or omission. (People v. Lucas (1995) 12 Cal.4th 415, 442; see
People v. Mitcham (1992) 1 Cal.4th 1027, 1058 [“‘[i]f 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 contention [that counsel provided ineffective assistance] must
be rejected’”].) Here, the rational tactical purpose for counsel’s failure to argue Agudelo
did not harm or threaten to harm Amy as a mitigating factor is obvious. As the trial court
observed, “This was not a mere touching. [Agudelo] had complete . . . sexual intercourse
with a 12-year-old girl . . . .” Although Amy did not suffer great bodily injury and was
not found to be the victim of forcible acts of sexual abuse, to suggest she was not harmed
by Agudelo is absurd. (See People v. Simpson (1979) 90 Cal.App.3d 919, 926 [fact that
defendant might have inflicted more harm than he did does not mean a circumstance in
mitigation exists]; cf. People v. Thomas (1992) 2 Cal.4th 489, 531 [failure to make
meritless objection does not constitute ineffective assistance of counsel].) Counsel
wisely chose to focus on the evidence suggesting Agudelo’s behavior was aberrational
instead of attempting to minimize the severity of the crime, which would have displayed
a lack of contrition.




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                            DISPOSITION
The judgment is affirmed.




                                     PERLUSS, P. J.


We concur:



      ZELON, J.



      JACKSON, J.




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