NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
GOMES, Acting P.J.
A jury convicted Phillip Vanness of committing sexual penetration and lewd or lascivious acts against a five-year-old girl. He was sentenced to 45 years to life in prison. His appeal concerns two evidentiary rulings and a claim of ineffective assistance of counsel.
Vanness alleges the trial court abused its discretion by admitting evidence of uncharged sexual offenses pursuant to Evidence Code section 1108. Two of his nieces from a prior marriage, both of whom were adult women at the time of trial, were permitted to testify that he molested them when they were prepubescent girls. We conclude the trial court acted within its authority on this issue.
Vanness further contends that the trial court erred by allowing the jury to hear a recorded jail call during which his then-wife expressed doubts about his innocence. This claim has merit. However, it is not reasonably probable that the error affected the jury's verdicts.
The final claim relates to the imposition of consecutive prison terms on three counts that carried mandatory sentences of 15 years to life. The trial court did not explain why it ordered consecutive rather than concurrent terms. Vanness concedes a statement of reasons was not required, but submits that had his defense counsel requested one, the trial court might have reduced the aggregate period of parole ineligibility. The argument is unpersuasive. We therefore affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The Tulare County District Attorney charged Vanness by information with four counts of sexual penetration of a child under the age of 10 years (Pen. Code, § 288.7, subd. (b); counts 1-4) and four counts of lewd or lascivious conduct (Pen. Code, § 288, subd. (a); counts 5-8). The charges were based on two separate incidents, both involving the same victim. Counts 1-3 and 5-7 alleged digital penetration or touching of the vagina. Counts 4 and 8 alleged digital penetration or touching of the anus. It was further alleged that counts 5-8 involved substantial sexual conduct (Pen. Code, § 1203.066, subd. (a)(8)).
The events at issue were alleged to have occurred between July 16, 2010 and May 9, 2012, but the evidence suggested a date in early 2012 for the incident associated with counts 1 and 5, and the evening of May 9, 2012 for the incident associated with counts 2, 3, 4, 6, 7, and 8. Vanness would have been 50 years old during that time period. The victim, hereafter referred to as T.F., would have been 5 years old. Her age at the time of trial was 7 years, 11 months.
Percipient witnesses included Vanness's then-wife, Alicia, and his adult stepdaughters, Yvonne M. and Gracie C.
On May 9, 2012, Vanness spent the late afternoon and early evening doing yard work at a home into which Yvonne and T.F. had recently moved. His wife, stepdaughters, and T.F. were also present. When it began to get dark, Gracie, T.F., and Vanness went into the house. Alicia and Yvonne remained outside to speak with a neighbor.
Once indoors, Vanness sat in a recliner and Gracie lay down in an adjacent room. At some point T.F. climbed onto the recliner and lay in Vanness's lap. Gracie could see Vanness's feet from where she was resting, but paid little attention to him and was unaware of T.F.'s whereabouts. It was quiet in the house until Alicia and Yvonne returned from visiting with the neighbor.
When Yvonne came inside, she saw T.F. lying across Vanness's lap. They both had their eyes closed and appeared to be sleeping. Yvonne picked T.F. up and placed her in bed, but the child apparently woke up; Yvonne testified that she and her daughter said goodbye to Alicia and Vanness when the couple left a short while later. At that point, Yvonne had no reason to believe anything was wrong.
After Vanness had departed, T.F. called her mother into the bathroom and said, "It burns when I pee." Her complaint was not entirely unusual; Yvonne testified that T.F. had experienced painful urination and vaginal itching during the previous month. On this occasion, however, Yvonne noticed that T.F.'s genitalia was "really red." When Yvonne asked about the redness, T.F. allegedly stated, "[It's] because of Grandpa's dirty fingers."
Yvonne called Gracie into the bathroom and relayed what T.F. had told her. Gracie observed that the child's "private area was bright pink." Both women were stunned by T.F.'s accusation and unsure of how to handle the situation. They decided to inform their mother, Alicia, who insisted they contact the police. Vanness was arrested that same night.
The next day, T.F. underwent a Sexual Assault Response Team (SART) examination conducted by Denise Head, RN, a forensic nurse specialist. Nurse Head testified to the procedures and conclusions of her examination, including the abnormal finding of a small tear and abrasion in the posterior fourchette, which is located just in front of the perineum (the area between the genitalia and anus). Contemporaneous photographs of the injury were admitted into evidence. T.F. reported pain in association with the injury and told Nurse Head, "That is from Grandpa." The nurse also testified that T.F. made a spontaneous reference to "Grandpa's dirty fingers" and described Vanness's placement of two fingers inside of her underwear.
On May 11, 2012, T.F. participated in a video-recorded Child Abuse Response Team (CART) interview, which was shown to the jury. In the video, T.F. explains that she was sleeping on Vanness's lap when the molestation occurred. There are verbal descriptions and physical demonstrations of the manner in which he touched her anus, buttocks, and genitalia. She also recalls Vanness licking his index finger in between the acts of abuse. In response to questions from the interviewer on the topic of secrecy, T.F. alleges that Vanness asked her to "pinkie promise" that she would not tell anybody about what he had done.
Later in the interview, T.F. reveals that the events of May 9, 2012 constituted the second of two instances of abuse. She estimates the first incident took place several months earlier, on an occasion when she had spent the night alone with Alicia and Vanness at their home. While lying between her grandparents in their bed, she awoke to the sensation of Vanness touching her "private" area.
T.F. testified at trial. Her testimony was highly generalized in comparison to the statements given during the CART interview. She had forgotten most of what occurred in May 2012 and had even less recall of the earlier incident.
To show Vanness's propensity for committing the charged offenses, the prosecution elicited testimony from Nicole L. (age 30) and Courtney S. (age 28). These witnesses had once been related to Vanness by way of his prior marriage to one of their aunts. Nicole testified to being sexually abused by him on at least ten occasions when she was between the ages of five and ten years old. The incidents occurred when she spent the night with her cousins at Vanness's home and typically involved him rubbing and digitally penetrating her vagina. She described one incident in particular that had caused her to experience a lingering painful, "burning pressure sensation." Courtney also claimed to have been molested "a couple of times," beginning when she was about six years old. She tearfully recounted the experience of Vanness removing her clothing and rubbing her vagina with his fingers.
The prosecution's case-in-chief concluded with an audio recording of a jail call between Vanness and Alicia. The conversation centered around Alicia's reaction to learning of the "scratch" that was discovered during T.F.'s SART exam, i.e., the tear and abrasion on her posterior fourchette. A more detailed summary of this evidence is provided in our Discussion, post.
Vanness took the witness stand and denied all allegations of wrongdoing. He explained that he worked as a concrete finisher and that Alicia often made remarks about his "dirty hands" and "dirty fingers," the implication being that T.F. had simply parroted her grandmother's words. He also testified to his and Alicia's marital problems prior to his arrest, which were exacerbated when Alicia invited Yvonne and T.F. to live with them. His unhappiness about the latter arrangement resulted in Yvonne moving into a rental unit despite her desire to live with Alicia in order to save money.
Gracie and Alicia were called as defense witnesses. Gracie confirmed that Alicia and Vanness had marital problems, and that Alicia had briefly left him and moved in with her approximately two weeks prior to the May 9, 2012 incident. Gracie also admitted that she had not supported her mother's subsequent decision to reconcile with Vanness. Alicia attributed the marital difficulties to Vanness's drinking habits, but testified that he never behaved inappropriately toward any of her ten grandchildren. The defense apparently hoped that Alicia would provide support for the theory that Gracie and Yvonne conspired to falsely accuse their stepfather of a crime, but all questioning along those lines produced unhelpful denials.
When asked about Vanness's interactions with T.F., Alicia said, "[T.F.] loved her grandpa more than me." She could recall only one time when T.F. had slept in their bed, which was "long before" the events of May 9, 2012. Alicia had known of T.F.'s prior issues with vaginal itching and painful urination, and testified that those symptoms persisted for another eight months after Vanness was arrested.
The defense was able to convey the fact that Vanness was never prosecuted for sexually abusing Courtney and Nicole. The jury learned that the women reported their allegations to police in 1997, approximately three years after the alleged abuse had ended, but was not specifically told that the district attorney's office rejected the case. The defense also highlighted a number of discrepancies in the accusations made in 1997 compared to the testimony given at trial, and elicited testimony from Vanness's ex-wife to bolster its attack on Courtney's and Nicole's credibility. Among other favorable testimony, the ex-wife contradicted Nicole's claim that she had complained to her about the inappropriate touching.
Verdicts and Sentencing
The jury deliberated for approximately two hours. During that time, it sought clarification regarding how the charged counts corresponded to the two alleged incidents. Vanness was convicted on count 1 (the earlier incident) of the lesser offense of attempting to commit sexual penetration, and was found guilty as charged on counts 2 through 8. As for the substantial sexual conduct allegations, the jury returned a not true finding on count 5 (the earlier incident) and true findings on counts 6 through 8.
Using count 2 as the base term, the trial court imposed a sentence of 15 years to life in prison, plus additional consecutive terms of 15 years to life for counts 3 and 4. The middle term of seven years was imposed for count 1, to be served concurrently. The middle term of six years was imposed for each of counts 5 through 8, but stayed pursuant to Penal Code section 654. A timely notice of appeal followed.
Admissibility of Prior Sexual Offenses Evidence
One of the deputy district attorneys who handled this case discovered the prior accusations against Vanness after inadvertently using a variation of his last name (Van Ness) while searching for a history of arrests and convictions. This led to the filing of what was originally a 13-count information that included four charges of lewd or lascivious conduct against Nicole and another such charge involving Courtney. The defense successfully moved to dismiss those counts on grounds of undue delay. The motion was partially based on the statute of limitations, but more so on the equitable argument that nearly 16 years had passed since the district attorney's office first learned of the underlying allegations. The judge who ruled on the motion was persuaded that Vanness would be prejudiced by the unavailability of potential impeachment evidence, namely official records of the accusers' CART interviews and SART examinations, which could not be located and were presumed to have been lost or destroyed.
When the case went to trial, Vanness moved in limine to preclude the People from introducing evidence of prior sexual misconduct pursuant to Evidence Code section 1108 (all subsequent undesignated statutory references are to the Evidence Code). Relying heavily on the earlier finding of prejudice in conjunction with the dismissal of charges relating to Courtney and Nicole, and complaining again about the missing CART interviews, the defense argued that admission of such evidence would result in a due process violation. The trial court rejected the due process argument and ruled that (1) Courtney and Nicole could testify and (2) a stipulation regarding the missing CART interviews and SART examinations would be read to the jury.
Vanness now advances two theories of error. First, he claims the trial court neglected its duty to apply a section 352 analysis to the challenged testimony. Second, he argues that even if the court did attempt to balance the probative value against the potential for unfair prejudice, admission of the evidence constituted an abuse of discretion.
"Character evidence, sometimes described as evidence of a propensity or disposition to engage in a type of conduct, is generally inadmissible to prove a person's conduct on a specified occasion." (People v. Villatoro (2012) 54 Cal.4th 1152, 1159 (Villatoro).) This principle is codified at section 1101. An exception is found in section 1108, which supersedes section 1101 in cases involving sex crimes. (People v. Falsetta (1999) 21 Cal.4th 903, 911 (Falsetta); People v. Britt (2002) 104 Cal.App.4th 500, 505 (Britt).)
"In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352." (§ 1108, subd. (a).) The rule applies to charged and uncharged offenses. (Villatoro, supra, 54 Cal.4th at p. 1161-1162.) Since the existence of a prior sexual offense need only be established by a preponderance of the evidence, section 1108 may be invoked even if the defendant was previously acquitted of charges arising from the alleged misconduct. (People v. Avila (2014) 59 Cal.4th 496, 515-516 (Avila).)
A jury may consider evidence of prior sexual offenses "`for any relevant purpose,' subject only to the prejudicial effect versus probative value weighing process required by section 352." (Britt, supra, 104 Cal.App.4th at p. 505, internal citation omitted.) The trial court's discretion to exclude the evidence pursuant to section 352 "saves section 1108 from [a] due process challenge." (Falsetta, supra, 21 Cal.4th at p. 917.) "[T]rial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission. . . ." (Ibid.) "Like any ruling under section 352, the trial court's ruling admitting evidence under section 1108 is subject to review for abuse of discretion." (Avila, supra, 59 Cal.4th at p. 515.)
We reject Vanness's argument that the trial court failed to conduct a prejudice analysis. The admission of testimony pursuant to section 1108 necessarily implies a finding that the evidence "is not inadmissible pursuant to Section 352" (§ 1108, subd. (a)), and, furthermore, "a court need not expressly state for the record [that it has engaged] in a weighing process every time it makes a ruling." (People v. Carpenter (1999) 21 Cal.4th 1016, 1053; accord, People v. Padilla (1995) 11 Cal.4th 891, 924 ["we are willing to infer an implicit weighing by the trial court on the basis of record indications well short of an express statement."].) A trial court is also presumed to have regularly performed its duties. (§ 664.) The defense attorney below made three references to section 352 while arguing his motion, which supports rather than rebuts the presumption. There is no reason to believe the trial court shirked its responsibilities after being specifically reminded of them. Lastly, the record shows that relevant inquiries were made with respect to the ages of the alleged victims (currently and at the time of the abuse), the existence of evidence supporting or refuting their allegations, and the opportunity for cross-examination.
Turning to the second issue, it must be remembered that because "`evidence of uncharged sexual offenses is so uniquely probative in sex crimes prosecutions[,] it is presumed admissible without regard to the limitations of Evidence Code section 1101." (People v. Loy (2011) 52 Cal.4th 46, 63, italics added.) Here, compelling factors supporting the presumption include the victims' gender and age group, which is especially relevant in cases involving pedophilia. There was also a recurring modus operandi of digital penetration, and in every instance Vanness was alleged to have exploited his position of trust as an adult family member.
The opportunity for cross-examination of Courtney and Nicole safeguarded against the danger of undue prejudice. Although the recordings of their CART interviews were missing, those sessions were witnessed by a sheriff's deputy, Jaime Visitacion, who documented his observations in a police report. The defense utilized the contents of that report and another investigating officer's report to cross-examine Courtney and Nicole in front of the jury, pointing out discrepancies in their trial testimony and prior allegations. Deputy Visitacion also testified to the versions of events told to the CART interviewer in 1997.
The circumstances are analogous to those in People v. Frazier (2001) 89 Cal.App.4th 30, 40-41. In that case, a section 1108 ruling was deemed appropriate even though the uncharged crimes were more serious than the current offenses and had occurred 15 or 16 years earlier, and evidence that could have impeached the accuser was no longer available. It has likewise been held that "significant similarities between the prior and the charged offenses may `balance out the remoteness.'" (People v. Branch (2001) 91 Cal.App.4th 274, 285 [30-year gap between offenses not too remote where prior and current offenses were "remarkably similar"]; see People v. Waples (2000) 79 Cal.App.4th 1389, 1395 ["20 years is not too remote"]; People v. Soto (1998) 64 Cal.App.4th 966, 977-978, 991 [interval of 20 to 30 years not a dispositive factor].)
Vanness does raise some valid points. A considerable amount of time was devoted to the prior misconduct allegations, which, as his attorney predicted, essentially resulted in "trying a case within a case." Nevertheless, while the defense arguments might have been strong enough to sway a different trial judge, discretionary rulings often involve matters upon which reasonable minds can differ. All things considered, we cannot say the trial court's ruling was "so irrational or arbitrary that no reasonable person could agree with it." (People v. Carmony (2004) 33 Cal.4th 367, 377.)
Admissibility of the Jail Call
The parties filed competing motions in limine with regard to the aforementioned jail call between Vanness and Alicia. The call begins with Vanness telling Alicia that he just finished reading a letter she wrote to him, the contents of which apparently pertained to T.F.'s SART exam. Alicia had only recently learned of the nurse's findings, and her statements during the call indicate that she was unnerved by the revelations: "I never heard about no freaking scratch. . . . I mean, she had a scratch in her vagina, Phil. In her vagina."
Alicia was mistaken about the location of the injury, and Vanness made repeated attempts to explain this to her. She was not interested in debating those details, preferring instead to focus on how the injury occurred: "[I]s it the same kind of scratch you gave — used to give me? Remember how I used to get scratches? You used to give me scratches and I used to bleed, remember?" Vanness responds with speculation that T.F. might have injured herself while playing in Yvonne's backyard, but Alicia rejects the theory as implausible.
Later in the conversation, Alicia expresses doubts about Vanness's innocence: "I know you've given me scratches. I know that. So when I heard that, I'm going, `What?' And then I asked Yvonne, [s]he goes, `Yeah, Mom, we didn't want to tell you.' I go, `Oh my God,' you know, what else is there? That's why I said in the letter, what other shit is there that I don't know about? . . . You asked me, `Do you believe me or not?' Phil, I don't know. . . . There's a lot of unanswered questions, and you know, [T.F.'s] got all these details and all you say [is] well, `I didn't do it.' . . . Okay, well, I wanna know details. . . . Why are you being accused of all this crap? . . . Any other woman would have [left] you a long time ago. But I stood there. . . . And I'm still standing there and I feel like a fool, Phil."
Vanness maintains his innocence throughout the call, but some of his denials are met with skepticism. The exchanges become tense and heated, especially near the end of the conversation. The following excerpts are illustrative:
The defense contested the relevance of the jail call and further objected to its admission on grounds of spousal privilege and the general hearsay rule. The prosecution argued the evidence was admissible under section 1101, subdivision (b), essentially to establish identity and the mechanism of injury vis-à-vis T.F.'s tear and abrasion. The trial court found the evidence to be admissible, but provided no legal basis for its conclusion. Redactions were ordered to prevent the jury from hearing parts of the recording that contained discussions of a possible plea deal and insinuations that Alicia had suspected Vanness of infidelity (with adult women) earlier in their marriage.
Evidentiary rulings are reviewed for abuse of discretion. (People v. Thompson (2016) 1 Cal.5th 1043, 1120.) However, a trial court has no discretion to admit irrelevant evidence (People v. Alexander (2010) 49 Cal.4th 846, 904) or hearsay not subject to a recognized exception (§ 1200, subd. (b); People v. Chism (2014) 58 Cal.4th 1266, 1288). Relevant evidence is that which tends to "prove or disprove any disputed fact that is of consequence to the determination of the action." (§ 210.) Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. (§ 1200, subd. (a).)
The edited version of the jail call that was used at trial is approximately 11 minutes in length. We have listened to the recording, and find the only arguably relevant content to be Alicia's statements about how Vanness used to give her "scratches" (presumably during sexual encounters), which accounts for less than one minute of their conversation. The remaining dialogue consists of lay opinion on the ultimate issue of guilt or innocence, which is irrelevant and inadmissible. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 77 (Coffman and Marlow).)
Assuming the information concerning Alicia's own scratches had probative value, the evidence was hearsay. The prosecution acknowledged that her out-of-court statements were intended to be considered for their truth, i.e., "to determine whether the injuries inflicted on the victim in this case [were] similar, if not the same as, the injuries that Alicia . . . discussed on the jail call." The prosecution also argued that Vanness's side of the conversation was admissible under statutory exceptions for party statements, but it is obvious his words and responses could not have been construed as express or adoptive admissions. (See §§ 1220, 1221.) To constitute an admission, "`the statement must assert facts which would have a tendency in reason either (1) to prove some portion of the proponent's [case], or (2) to rebut some portion of the party declarant's defense.'" (People v. Hovarter (2008) 44 Cal.4th 983, 1009.) Vanness unequivocally denied all express and implied assertions of wrongdoing.
The recording may also contain multiple levels of hearsay in those instances where Alicia recites statements allegedly made by Yvonne and T.F. Multiple hearsay is admissible "only if each hearsay layer separately meets the requirements of a hearsay exception." (People v. Arias (1996) 13 Cal.4th 92, 149, citing §§ 1200, 1201.) If the third party statements had a nonhearsay purpose of showing their effect on the listener (see People v. Livingston (2012) 53 Cal.4th 1145, 1162), they merely supplied a basis for Alicia's opinion regarding her husband's guilt or innocence, and thus had no relevance. It follows, for all of the reasons discussed, that the trial court erred by admitting the recording into evidence.
The improper admission of evidence is ordinarily reviewed for prejudice under the standard applicable to errors of state law. (Coffman and Marlow, supra, 34 Cal.4th at p. 76 [opinion testimony on the question of guilt]; People v. Duarte (2000) 24 Cal.4th 603, 618-619 [hearsay].) The reviewing court determines if there is a reasonable probability that the defendant would have obtained a more favorable result had the error not occurred. (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).) Vanness submits that allowing jurors to hear the jail call violated his constitutional right to due process, and therefore argues the error was not harmless beyond a reasonable doubt. (See Chapman v. California (1967) 386 U.S. 18, 24 [standard of review for federal constitutional error].)
"[T]he admission of evidence, even if erroneous under state law, results in a due process violation only if it makes the trial fundamentally unfair." (People v. Partida (2005) 37 Cal.4th 428, 439.) "Absent fundamental unfairness, state law error in admitting evidence is subject to the traditional Watson test. . . ." (Ibid.) While disadvantageous insofar as it showed Vanness's own wife questioned his innocence, the jail call was neither inflammatory nor even necessarily incriminating. (See People v. Albarran (2007) 149 Cal.App.4th 214, 229-232 [trial court's admission of "extremely and uniquely inflammatory" gang evidence, which "had no legitimate purpose," constituted one of the "rare and unusual occasions" where admission of certain evidence rendered a defendant's trial fundamentally unfair].) The evidence should have been excluded, but Vanness has not shown that the jury's exposure to it deprived him of the fundamental right to a fair trial. We therefore apply the Watson standard.
The recording can be viewed a couple of different ways, one of which supports the defense case. First, Vanness repeatedly and emphatically denied having engaged in any inappropriate behavior. Second, there were insinuations that people may have falsely accused him to achieve their own objectives. The mentions of a possible conspiracy during candid exchanges between him and his wife support the conclusion that bad faith was a genuine possibility as opposed to an empty theory devised by a defense attorney. Vanness's trial counsel attempted to put a positive spin on the recording during closing argument, reminding jurors of his steadfast denials of guilt and arguing that Alicia's doubts were fostered by a misunderstanding of the SART examination findings.
The relevance of Alicia's scratches is debatable, but one could argue there is a probative element of commonality with respect to the manner in which she and T.F. sustained their respective injuries. Even so, there was no indication of a unique or uncommon modus operandi. At best, the evidence tended to suggest Vanness had poor fingernail hygiene or rough hands, and perhaps a lack of finesse as an intimate partner. However, a reasonably intelligent juror could have deduced that the admissible evidence of Vanness's work as a concrete finisher and Alicia's frequent complaints about his "dirty fingers" tended to suggest he had physical characteristics that might increase the likelihood of skin irritation with digital sexual penetration. Moreover, each juror would have inevitably contemplated the same question that Alicia struggled with and verbalized on the recording: was Vanness lying, or were each of his three accusers lying?
Vanness would have a better argument for reversal were it not for the trial court's separate ruling on the evidence of prior sexual offenses. The devastating effect of section 1108 evidence is a harsh reality in these types of cases. When such evidence is admitted, "`the odds of conviction increase dramatically.'" (Villatoro, supra, 54 Cal.4th at pp. 1165-1166.) Whatever the negative impact of the jail call, the testimony of Courtney and Nicole was exponentially more damaging. Despite those circumstances, the jury convicted Vanness of a lesser offense on count 1 and rejected one of the substantial sexual conduct allegations, which leads us to infer that hearing the jail call did not affect its ability to remain objective and properly afford him the benefit of doubt wherever applicable. On the record before us, it is not reasonably probable that he would have obtained a more favorable outcome at trial but for the erroneous admission of the jail call.
Sentencing/Ineffective Assistance of Counsel
In its presentencing report, the county probation department recommended consecutive terms of 15 years to life on counts 2, 3, and 4. Three purported factual circumstances were cited in support of this recommendation: "The crimes and their objectives were predomina[nt]ly independent of each other. ([Cal. Rules of Court,
The defense filed a sentencing brief and Statement in Mitigation, which argued that the probation department's reliance on rule 4.425(a)(1)-(3) was without evidentiary support. Since counts 2-4 arose from the May 9, 2012 incident that occurred while T.F. was lying on Vanness's lap, the notion of those crimes being "predomina[nt]ly independent of each other" and "committed at different time[s] or separate places" was untenable. The defense further disputed that the offenses involved violence or the threat of violence.
At the sentencing hearing, defense counsel reiterated its position on the mistakes in the probation report and argued for concurrent sentencing. The prosecution advocated for consecutive sentences, not mentioning the probation department's flawed reasoning but arguing that Vanness "had sufficient time to consider his actions" in between the acts of abuse. The trial court ultimately followed the probation department's recommendation of 45 years to life in prison. A statement of reasons for this choice was neither requested by parties nor provided by the judge.
On appeal, Vanness submits that the prosecution's argument impliedly relied on Penal Code section 667.6, which requires consecutive terms for convictions of specified sex crimes that are found to have been committed on "separate occasions." (Pen. Code, § 667.6, subd. (d).) In determining the applicability of this provision, the trial court must consider "whether, between the commission of one sex crime and another, the defendant had a reasonable opportunity to reflect upon his or her actions and nevertheless resumed sexually assaultive behavior." (Ibid.) However, the statute does not apply to violations of Penal Code section 288.7, and thus did not govern the sentencing decision for counts 2-4. (See Pen. Code, § 667.6, subd. (e).)
Vanness faults his trial attorney for not recognizing the purported basis for the prosecution's argument. He further alleges that the attorney rendered constitutionally deficient performance by failing to request a statement of reasons from the trial court. There are several components to this claim: (1) The trial court is alleged to have based its consecutive sentencing decision on inapplicable factors, either those set forth in the probation report or the one offered by the prosecution. (2) Had defense counsel requested a statement of reasons, the trial court's explanation would have confirmed its supposedly misplaced reliance on said factors. (3) A reasonably competent attorney would have recognized the error and brought it to the court's attention. (4) There is a reasonable probability that once apprised of its mistake, the trial court would have changed its mind and elected to impose concurrent sentences, thus resulting in an aggregate term of only 15 years to life.
A conviction under Penal Code section 288.7 for sexual penetration of a child 10 years of age or younger carries a mandatory indeterminate sentence of 15 years to life in prison. (Id., subd. (b).) Penal Code section 1170, subdivision (c), which requires a trial court to "state the reasons for its sentence choice on the record at the time of sentencing," applies only to determinate sentences. Thus, the trial court was not required to state its reasons for imposing consecutive sentences on counts 2, 3, and 4. (Ibid; People v. Felix (2000) 22 Cal.4th 651, 658-659; People v. Arviso (1988) 201 Cal.App.3d 1055, 1058-1059 (Arviso).)
"Where there is no requirement that a trial court state its reasons for the imposition of consecutive sentences, its reasons, if expressed, do not necessarily affect the validity of the sentence." (Arviso, supra, 201 Cal.App.3d at p. 1058.) Even if improper reasons are given, reversal is not required unless the trial court is shown to have abused its discretion. (Ibid.) This undercuts Vanness's theory of deficient performance and prejudice.
The probation report cited a number of aggravating factors (though not specifically in connection with the consecutive sentencing recommendation) which included the age and vulnerability of the victim (rule 4.421(a)(3)) and Vanness's exploitation of a position of trust or confidence to commit the offenses (id., (a)(11)). It was within the trial court's discretion to impose consecutive sentences based on one or both of these considerations. We note further that since the criteria found in the California Rules of Court does not specifically govern indeterminate sentencing choices (rule 4.403), the court could have imposed consecutive sentences for virtually any reason so long as its decision was not arbitrary or irrational. (Arviso, supra, 201 Cal.App.3d at pp. 1058-1059.)
To prevail on a claim of ineffective assistance of counsel, an appellant must show "(1) counsel's performance was deficient because it fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficiencies resulted in prejudice." (People v. Centeno (2014) 60 Cal.4th 659, 674.) "Prejudice requires `a reasonable probability that a more favorable outcome would have resulted . . ., i.e., a probability sufficient to undermine confidence in the outcome.'" (People v. Fairbank (1997) 16 Cal.4th 1223, 1241.) An appellate court may forgo the analysis of counsel's performance if it is easier to dispose of the claim for lack of prejudice, which we choose to do here. (Ibid.)
We are again mindful of certain presumptions. "The general rule is that a trial court is presumed to have been aware of and followed the applicable law. [Citations]. These general rules concerning the presumption of regularity of judicial exercises of discretion apply to sentencing issues." (People v. Mosley (1997) 53 Cal.App.4th 489, 496.) The record does not suggest that the trial court was unaware of its discretion to impose concurrent sentences on counts 2, 3, and 4. The record does show the trial court's inclination to impose consecutive sentences on those counts. Vanness's claim is based on wishful thinking. Had defense counsel requested a statement of reasons, the most likely scenario would have involved the trial court following its original inclination and identifying a valid reason for its sentencing choice (e.g., because Vanness took advantage of a position of trust or confidence to commit the offenses). We therefore reject the claim of ineffective assistance of counsel for lack of demonstrable prejudice.
The judgment is affirmed.
PEÑA, J. and SMITH, J., concurs.