Filed 7/24/26 P. v. Ambriz-Tinajero CA1/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent, A172859
v. (Lake County Super. Ct.
JULIO AMBRIZ-TINAJERO, No. CR968840)
Defendant and Appellant.
Defendant Julio Ambriz-Tinajero appeals a judgment following a jury
trial in which he was convicted of multiple sex crimes against his
stepdaughter, K.B.M., who was 14 years old at the time. The trial court
sentenced him to 15 years 4 months in state prison. Ambriz-Tinajero
contends that reversal is warranted because he received ineffective
assistance of counsel based on his trial counsel’s failure to: (1) object to
improper expert testimony regarding child sexual abuse accommodation
syndrome (CSAAS); and (2) raise certain mitigating factors at sentencing.
Ambriz-Tinajero further contends, and the People concede, that he is entitled
to an additional day of presentence conduct credit. We agree that Ambriz-
Tinajero is entitled to an additional day of credit but otherwise affirm.
I. BACKGROUND
A. Procedural History
An information charged Ambriz-Tinajero with the following crimes
1
against K.B.M.: (1) lewd and lascivious acts when K.B.M. was 14 to 15 years
old (Pen. Code,1 § 288, subd. (c)(1); counts I to V); (2) oral copulation with a
minor (§ 287, subd. (b)(1); counts VI and VII); (3) rape by means of force or
fear (§ 261, subd. (a)(2); counts VIII and IX); and (4) sodomy (§ 286; subd.
(c)(2)(A); count X). The information also charged Ambriz-Tinajero with the
following crimes against K.B.M.’s twin sister, K.A.M.: (1) lewd and lascivious
act when K.A.M. was 14 to 15 years old (§ 288, subd. (c)(1); count XI);
(2) battery (§ 242; count XII); and (3) unlawfully annoying and molesting a
minor (§ 647.6, subd. (a)(1); count XIII).
Shortly after trial began, the trial court granted the prosecution’s
motion to dismiss counts III, V, XI, and XIII based on insufficient evidence.
The jury found Ambriz-Tinajero guilty of all remaining counts. Following the
verdict, the court granted the prosecutor’s motion to dismiss count XII
(battery against K.A.M.) due to the statute of limitations. As a result, only
the convictions based on Ambriz-Tinajero’s sexual assaults against K.B.M.
remained.
The trial court thereafter sentenced Ambriz-Tinajero to an aggregate
term of 15 years 4 months in state prison and awarded him 115 days of
presentence custody credits. Ambriz-Tinajero timely appealed.
B. Trial Testimony
1. K.A.M.
Fraternal twin sisters K.A.M. and K.B.M. were born in January 2000.
Their mother, T.A., married Ambriz-Tinajero in 2011, and he became the
twins’ stepfather. Ambriz-Tinajero had a son, G.A., who was almost four
years old when he and T.A. married. The five of them lived in the same
1 All further statutory references are to the Penal Code unless
otherwise specified.
2
house, and Ambriz-Tinajero’s mother stayed with them on and off until 2016
when she permanently moved in. The twins had different personalities:
K.A.M. was “headstrong” and “outgoing” while K.B.M. was “a little more of a
wallflower, more quiet.” Between 2014 and 2018, T.A. worked long hours
and usually got home between 6:00 p.m. and 9:00 p.m. During this same
time period, Ambriz-Tinajero worked as an apartment manager at the
building they lived in and was home “[o]ff and on during the day.” He also
coached the twins in wrestling.
When K.A.M. was between 14 and 16 years old, Ambriz-Tinajero
approached her in the hallway, grabbed her vagina over her pants, and said,
“ ‘You are mine.’ ” K.A.M. was upset and told her mother, T.A., that Ambriz-
Tinajero made her feel uncomfortable. She did not disclose what he did
specifically because she was afraid of him. T.A. pulled both K.A.M. and
Ambriz-Tinajero into a room and asked him what he did to make K.A.M.
uncomfortable. He responded that he was “showing her normal family
affection” and stated, “ ‘Fine, then I won’t be her dad.’ ” After this incident,
Ambriz-Tinajero did not touch K.A.M. like that again. But when K.A.M. was
17 years old, Ambriz-Tinajero came up to her when she was sleeping on the
couch and “whispered something really weird in [her] ear.” She could not
make out what he said but it made her uncomfortable.
Finally, K.A.M. testified that Ambriz-Tinajero started disciplining her
when she was 10 years old. When she was 18 years old, she recalled that
Ambriz-Tinajero pinned her against the wall and choked her for a few
seconds, after she came home from her then-boyfriend’s house. He stopped
disciplining K.A.M. shortly thereafter.
2. K.B.M.
K.B.M. recalled that Ambriz-Tinajero would discipline her when she
3
was younger by either yelling or occasionally spanking her. K.B.M. testified
that she was scared of him and “tried to avoid conflict as much as [she]
could,” which meant going along with what Ambriz-Tinajero asked her to do.
Although Ambriz-Tinajero’s discipline stayed the same for K.A.M. and G.A.,
it changed for K.B.M. as she got older. K.B.M. recalled that when she was
14 years old, Ambriz-Tinajero first touched her: she was in his room and “he
touched [her] vagina and started rubbing it.” She continued that this
happened frequently when she was between 14 and 16 years old and usually
occurred when no one else was home. When K.B.M. was 14 or 15 years old,
Ambriz-Tinajero took her hand and put it on his penis, which made her
uncomfortable. Around this same time, Ambriz-Tinajero also asked K.B.M.
“to perform oral sex on him.” She was very uncomfortable but complied.
K.B.M. recalled Ambriz-Tinajero saying that she “needed to know for [her]
future boyfriends.” He also performed oral sex on her. She felt very
uncomfortable and did not know what to do. Around this same time,
Ambriz-Tinajero gifted K.B.M. a Victoria’s Secret swimsuit.
K.B.M. testified that when she was 17 years old, she lost her virginity
and told her mother about it. Shortly after this, Ambriz-Tinajero
“penetrated [her] with his penis” for the first time. This occurred “a couple
of times” when she was 17 years old. When she was 19 years old, K.B.M.
recalled being asleep in her bedroom when Ambriz-Tinajero came in and
moved the blankets off her. K.B.M. repeated “ ‘No. Stop it,’ ” and pushed his
hands off. Ambriz-Tinajero became angry and yelled at her, which scared
K.B.M. He then “proceeded to rape [her].” Another time when K.B.M. was
19 years old, she made it known that she was menstruating so that Ambriz-
Tinajero would stay away from her. They were in his bedroom with the door
closed, and he responded that “he could just put it in [her] butt.” Ambriz-
4
Tinajero’s mother was home at the time and knocked on the bedroom door.
She walked away after Ambriz-Tinajero said something to her in Spanish.
He then penetrated K.B.M. “in [her] butt.” K.B.M. remembered that it hurt.
Ambriz-Tinajero penetrated K.B.M. anally “a few” more times after this
incident. She did not tell anyone what had occurred because she was afraid
of Ambriz-Tinajero.
3. Pretext Call
In 2023, K.B.M. began experiencing abdominal pain and believed she
was suffering from endometriosis. She realized that her symptoms could
have been caused by what Ambriz-Tinajero did to her. Her boyfriend sensed
something was wrong and asked K.B.M. if she was okay, and she eventually
told him about the sexual abuse. In July, K.B.M. reported the abuse to the
police.
In September 2023, the police and K.B.M. conducted a pretext call with
Ambriz-Tinajero. At the start of the call, K.B.M. told Ambriz-Tinajero that
she was “not doing well” and needed to talk to him in order to get “some
closure and move on.” She continued that her anxiety was “so bad” and
Ambriz-Tinajero replied, “I’m sorry.” K.B.M. asked if he remembered when
he first touched her. Ambriz-Tinajero responded, “No I don’t know what
you’re . . . I don’t remember.” She then asked, “why did you choose to do that
to me?” and Ambriz-Tinajero replied, “I’m sorry, I just don’t know, I don’t
know how to help you.” After K.B.M. pressed that they needed to talk about
it, Ambriz-Tinajero repeated that he could not help her and that she needed
to work things out on her own.
K.B.M. continued that she “can’t have babies” because of what Ambriz-
Tinajero did to her. Ambriz-Tinajero questioned how “being unfertile has to
do with the past” and told her that he believed it was “more genetics.”
5
K.B.M. emphasized that she was in “a lot of pain all the time” due to the
“abuse [her] body has taken” and Ambriz-Tinajero again replied that “not
being able to have babies” had to do with genetics and referenced her
mother’s health. K.B.M. interrupted, “because at my young age, you had
raped me, Dad, you had hurt me.” After a long silence, Ambriz-Tinajero
asked, “Are you sure you want to talk to me about this?” K.B.M. responded,
“yes,” but Ambriz-Tinajero repeated that he did not know how to help her
and that she had “to work that out on [her] own.” K.B.M. countered, “But,
I’m a victim of you sexually assaulting me.” Ambriz-Tinajero again
responded that she needed to work things out on her own and that he did
not know what closure she wanted from him. K.B.M. asked him why he
sexually assaulted her, and he replied, “I don’t know what you’re talking
about . . . . I truly think you need to work that out on your own.” K.B.M.
ended the call at this point and stated to the police, “What the fuck is wrong
with him? I think he knows. Why else would he be pretending. I couldn’t
do it anymore. Sorry.”
4. G.A.
The defense called G.A., Ambriz-Tinajero’s son, at trial. G.A. testified
that his family used to watch television together on a weekly basis in his
parents’ room. Either K.A.M. or K.B.M. would be on top of the bed with
Ambriz-Tinajero and T.A. while he would be further down on the bed. G.A.
also recalled that when he was younger, “there would be some corporal
punishment” by Ambriz-Tinajero like a “hand to the backside or a shoe to
the backside.” He never witnessed Ambriz-Tinajero take either K.A.M. or
K.B.M. into a room alone. G.A. further testified that he did not know the
twins to make up stories.
6
5. Expert Testimony
The prosecution called Angie Wynacht, an expert in child sexual
assault. She did not know anything about the case and testified about child
sexual assault victims in general. Wynacht testified about the many reasons
why a child victim may not report abuse for some time, including shame, a
fear of retaliation or of not being believed, and grooming. Grooming occurs
when “the perpetrator has trained, coerced, [and] manipulated a child . . . in
a way that allows that perpetrator access to the child.” It can take the form
of purchasing gifts for the child or making threats so the child would be
afraid to speak up. “Caregivers are able to groom a child . . . better and faster
than noncaregivers” due to their greater access. In terms of how victims are
chosen, Wynacht explained that a “perpetrator tend[s] to choose the victim
that may be more quiet, shy, [and] have lower self-esteem.”
Wynacht testified that it is common for child victims to wait until they
are adults before disclosing abuse. When asked whether it is common for
victims to lie about being sexually abused, she responded, “no, it’s extremely
rare for a child to make a false allegation to the point that it’s being
investigated. And in my own work experience, I have not had a child disclose
to me and then later found out that they were lying.” This included adults
who experienced sexual abuse as a child. Finally, Wynacht testified that it is
common for child victims not to remember a date or year when the abuse
occurred as they often “try and pretend that it’s not happening to them.”
II. DISCUSSION
A. Forfeiture
Ambriz-Tinajero raises two issues on appeal that were not raised
below. We find that he forfeited both.
First, Ambriz-Tinajero contends that the admission of testimony by
7
Wynacht about the rarity of false allegations of abuse by children was
improper. Ambriz-Tinajero acknowledges that his trial counsel did not object
to this testimony but asks that we reach the merits of this issue in our
discretion. We, however, deem the issue forfeited. (People v. Simon (2016) 1
Cal.5th 98, 139 [party’s failure to object to testimony below forfeits the issue
on appeal].)
Second, Ambriz-Tinajero contends that the trial court failed to consider
two additional factors in mitigation at sentencing. He again acknowledges
that his trial counsel did not raise these factors below but asks that we
nevertheless reach the merits. We deem this issue forfeited as well. (People
v. de Soto (1997) 54 Cal.App.4th 1, 8 [counsel’s failure to object at the time of
sentencing waives any claims of sentencing error].)
Nonetheless, we address the merits of both ineffective assistance of
counsel claims since Ambriz-Tinajero raises them again in his petition for
writ of habeas corpus and reject them.2
B. Ineffective Assistance of Counsel
Ambriz-Tinajero contends that he received deficient representation
because his trial counsel failed to: (1) object to Wynacht’s expert testimony;
and (2) raise certain mitigating factors at sentencing. He further contends
that this deficient performance prejudiced him. We are unpersuaded.
1. Standard
The standard of review for an ineffective assistance of counsel claim is
well-established. “First, the defendant must show that counsel’s
performance was deficient,” meaning that it “fell below [the] objective
standard of reasonableness.” (Strickland v. Washington (1984) 466 U.S. 668,
2 We have denied this petition, filed in case No. A175778, by separate
order filed on this same date.
8
687–688 (Strickland).) “This requires showing that counsel made errors so
serious that counsel was not functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment. Second, the defendant must show that
the deficient performance prejudiced the defense.” (Id. at p. 687.)
In evaluating a claim of deficient performance by counsel, there is a
“strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” (Strickland, supra, 466 U.S. at pp. 689,
694.) “ ‘On direct appeal, a conviction will be reversed for ineffective
assistance only if (1) the record affirmatively discloses counsel had no
rational tactical purpose for the challenged act or omission, (2) counsel was
asked for a reason and failed to provide one, or (3) there simply could be no
satisfactory explanation.’ ” (People v. Guevara (2025) 115 Cal.App.5th 919,
927.)
To prove prejudice, the “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, 466 U.S. at p. 694.) “It is not enough for the defendant to
show that the errors had some conceivable effect on the outcome of the
proceeding,” as “[v]irtually every act or omission of counsel would meet that
test.” (Id. at p. 693.) Rather, the defendant must show that “counsel’s errors
were so serious as to deprive the defendant of a fair trial, a trial whose
result is reliable.” (Id. at p. 687.)
2. Expert Testimony
Ambriz-Tinajero contends that his trial counsel performed deficiently
because he failed to object to Wynacht’s testimony that child sexual abuse
victims rarely make false allegations. Ambriz-Tinajero further contends
9
that this error was prejudicial. He argues that this was a “close” case
“focused almost entirely on K.B.M.’s credibility” and that “the prosecutor
took advantage of the inadmissible [expert] testimony in her closing
argument.” We reject this ineffective assistance of counsel claim for lack of
prejudice.
i. Law on CSAAS
“Expert testimony on CSAAS has long been held admissible in
California for the limited purposes of dispelling commonly held myths or
misconceptions about child sexual abuse and aiding the jury in ‘evaluating
the credibility of an alleged child victim of sexual abuse.’ ” (People v. Sedano
(2023) 88 Cal.App.5th 474, 479 (Sedano), italics added.) It is also admissible
“to rehabilitate [the complainant’s] credibility when the defendant suggests
that the child’s conduct after the incident—e.g., a delay in reporting—is
inconsistent with his or her testimony claiming molestation.” (People v.
McAlpin (1991) 53 Cal.3d 1289, 1300.)
CSAAS testimony, however, may not be used to “affirmatively vouch[ ]
for the truthfulness of a complainant’s allegations against the defendant.”
(Sedano, supra, 88 Cal.App.5th at pp. 479–480.) It is therefore “an abuse of
discretion to permit a CSAAS expert to testify—either qualitatively, or with
specific statistics or percentages—to the infrequency with which children
make false allegations of sexual abuse.” (Id. at p. 480.) “[T]he jury must be
left to evaluate a complaining witness’s testimony, together with all the
other evidence, ‘without statistical evidence placing a thumb on the scale for
guilt.’ ” (Ibid.)
ii. Prejudice
Even assuming defense counsel’s performance was deficient because he
failed to object to Wynacht’s purportedly improper testimony, we find no
10
reasonable probability that the outcome would have been different without
that testimony. (Strickland, supra, 466 U.S. at p. 697 [“a court need not
determine whether counsel’s performance was deficient before examining
the prejudice suffered by the defendant as a result of the alleged
deficiencies”].)
First, ample evidence corroborated K.B.M.’s testimony about Ambriz-
Tinajero’s sexual assaults. (See People v. Lapenias (2021) 67 Cal.App.5th
162, 180 (Lapenias) [holding that erroneously admitted expert testimony
was not prejudicial in part because there was “corroborative evidence of [the
defendant’s] guilt”].)
For example, in the pretext call, K.B.M. made several statements to
Ambriz-Tinajero regarding his sexual assaults of her that he could have but
did not deny. During their call, K.B.M. told Ambriz-Tinajero, “you had
raped me, Dad,” and Ambriz-Tinajero responded by asking her if she was
sure she wanted to talk to him about this. Notably, he did not deny the
statement. K.B.M. also asked Ambriz-Tinajero, “Do you remember when
you first touched me?” Ambriz-Tinajero responded, “No[,] I don’t know what
you’re . . . I don’t remember.” Later on, K.B.M. asked him, “Why did you
sexually assault me?” Ambriz-Tinajero replied, “I don’t know what you’re
talking about [K.B.M.]. I truly think you need to work that out on your
own.” As the People note, “[a]ny person, especially any father,” would have
denied these statements if they thought them to be false. Thus, the jury
likely viewed Ambriz-Tinajero’s failures to deny as adoptive admissions
because he: (1) “heard and understood the statement”; (2) “would, under all
the circumstances, naturally have denied the statement if he thought it was
not true”; and (3) “could have denied it but did not.” (CALCRIM No. 357.)
Likewise, K.A.M.’s testimony that Ambriz-Tinajero grabbed her vagina
11
over her pants when she was between 14 and 16 years old and told her
“ ‘You are mine’ ” bolstered K.B.M.’s testimony. Ambriz-Tinajero counters
that Wynacht’s improper testimony also “infected” K.A.M.’s testimony
because she was “a supposed second victim of [Ambriz-Tinajero’s]
misconduct.” But T.A., the mother of the twins, corroborated K.A.M.’s
testimony. T.A. testified that K.A.M. felt uncomfortable after the incident.
And when T.A. confronted Ambriz-Tinajero about it, he said “that he was
showing her normal family affection.” K.A.M.’s testimony about her sexual
assault also provided independent evidence that Ambriz-Tinajero “was
disposed or inclined to commit sexual offenses,” because the jury only had to
find that it was “more likely than not” that the assault occurred. (CALCRIM
No. 1191A.)
Finally, G.A., Ambriz-Tinajero’s son, testified that he did not know
either of the twins to make up stories. His testimony about the veracity of
the twins further supported their credibility.
Second, Wynacht’s purportedly improper testimony was brief. When
the prosecutor asked her whether child sexual abuse victims commonly
make false allegations, Wynacht responded, “no, it’s extremely rare for a
child to make a false allegation to the point that it’s being investigated. And
in my own work experience, I have not had a child disclose to me and then
later found out that they were lying.” The prosecutor then asked her
whether the same is true of adults who experienced sexual abuse as
children. Wynacht responded, “Yes absolutely. . . . [I]t was all truthful with
my adult victims.”
The brevity of Wynacht’s purportedly improper testimony distinguishes
this case from People v. Julian (2019) 34 Cal.App.5th 878, 888–889, a case
Ambriz-Tinajero relies on. In that case, the CSAAS expert testified at great
12
length about “the statistical percentage of false allegations by child sexual
abuse victims.” (Id. at p. 883.) The expert further used cross-examination
as an “opportunity to repeatedly reassert his claim that statistics show
children do not lie about being abused.” (Id. at pp. 888–889.) In effect, the
expert “bombarded” the jury with statistical evidence that child sexual abuse
victims rarely make false allegations, which “tipped the scales in favor of the
People.” (Id. at p. 888.) The Court of Appeal therefore found that the
testimony was prejudicial. (Id. at p. 889.) By contrast, Wynacht only briefly
mentioned the rarity of false child abuse allegations twice. And those brief
mentions comprised less than half a page of her 19 pages of testimony.
As a result, People v. Melgoza (2025) 115 Cal.App.5th 632 (Melgoza) is
far more instructive. In that case, the CSAAS expert briefly testified that
“ ‘[f]alse allegations of sexual abuse are uncommon, rare, but they do
occur.’ ” (Id. at p. 656.) In finding no prejudice, the Court of Appeal
reasoned that the “expert’s testimony about the rarity of false allegations
was brief.” (Id. at p. 657; see also Lapenias, supra, 67 Cal.App.5th at p. 180
[finding no prejudice in part because the expert’s “testimony about false
allegations of child sexual abuse was brief”].) In doing so, the court
contrasted the expert’s testimony with the expert testimony in Julian,
noting that the “limited nature of the testimony distinguishes this case from
those finding reversible error.” (Melgoza, at p. 657.) The same is true here.
Third, the prosecutor only made two brief references to Wynacht’s
purportedly improper testimony in her closing argument. (See Melgoza,
supra, 115 Cal.App.5th at p. 657 [“The lawyers did not focus on [the expert’s]
testimony during closing argument”]; see also Lapenias, supra, 67
Cal.App.5th at p. 180 [“the mentions of [improper CSAAS] testimony . . .
during closing arguments” were brief].) The prosecutor first told the jury
13
that Wynacht “testified it is rare for a child sex abuse victim to lie about
being abused. It can happen. It is rare.” Later on, the prosecutor again
referenced Wynacht’s testimony that “it’s rare for [child sexual abuse victims]
to lie in her experience.” In between these two references, the prosecutor
highlighted G.A.’s testimony that K.B.M. is “not known to lie.” These brief
references by the prosecutor are insufficient to establish prejudice.
Indeed, these brief references to the rarity of false child sexual abuse
claims are readily distinguishable from the closing argument in Snowden v.
Singletary (11th Cir. 1998) 135 F.3d 732, which Ambriz-Tinajero relies on. In
that case, an expert testified that “99.5% of children tell the truth.” (Id. at
p. 737.) And the prosecutor, in his closing, “stressed the significance of the
expert’s opinion about the credibility of child victims of supposed sexual
abuse.” (Id. at p. 738, italics added; see also Julian, supra, 34 Cal.App.5th at
p. 889 [“the prosecutor asked the jury to rely on [the expert’s] statistical
evidence that ‘children rarely falsify allegations of sexual abuse’ ”].) For
example, the prosecutor told the jury that “ ‘if you don’t remember anything
else about [the expert’s] testimony, just remember . . . that it is his experience
that 99.5 percent of the children who report an incident of sexual abuse are
telling the truth.” (Snowden, at p. 738.) By contrast, the prosecutor in this
case only briefly mentioned Wynacht’s testimony twice in her closing
argument and did not place undue emphasis on it.
Finally, the trial court instructed the jury, “You must consider the
[expert] opinion, but you are not required to accept it as true or correct. The
meaning and importance of any opinion are for you to decide. . . . You may
disregard any opinion that you find . . . unsupported by the evidence.”
(CALCRIM No. 332.) In Lapenias, supra, 67 Cal.App.5th at page 180, the
Court of Appeal found no prejudice from improperly admitted CSAAS
14
testimony in part because the jurors “received the standard evidentiary
instructions that they were not bound by an expert’s opinion.” In making this
finding, the court “presume[d] the jurors understood and followed the
instructions.” (Ibid.) We do the same here.
Accordingly, we find that Ambriz-Tinajero has failed to show any
prejudice from the admission of Wynacht’s purportedly improper testimony.
3. Sentencing
Ambriz-Tinajero next contends that he received deficient
representation that was prejudicial because his trial counsel failed to raise
the following mitigating factors at sentencing: his volunteer work as a coach
and his continuous employment. We find no deficient performance or
prejudice.
i. Relevant Procedural History
At sentencing, the trial court stated that it read and considered the
probation report after the parties stipulated to its admission into evidence.
The report included a written statement by Ambriz-Tinajero, in which he
stated that he volunteered as a coach for G.A.’s sports team and “was always
employed.” K.A.M., K.B.M., and their mother, T.A., then each read their
victim impact statements.
When the trial court asked defense counsel if he had any evidence to
present, he replied, “Submitted, Your Honor.” The court then asked the
parties if they had any argument, and both counsel stated that they did not.
The trial court found the following three circumstances in aggravation:
(1) the victim was particularly vulnerable; (2) the manner in which the
crimes were carried out indicate planning; and (3) Ambriz-Tinajero took
advantage of a position of trust or confidence to commit the offenses. It found
Ambriz-Tinajero’s lack of a prior criminal record as the only circumstance in
15
mitigation. The court ultimately found that the circumstances in aggravation
outweighed those in mitigation and imposed the upper term of eight years on
count X, the principal term.
At the conclusion of sentencing, the trial court commented that Ambriz-
Tinajero had “received the maximum sentence authorized under the law” and
stated to him, “Sir, I know you’re proclaiming your innocence, but I was
present during the trial and heard the phone call. You—by your silence, you
made an admission that you did . . . this to these girls. And the least you
could have done in this case is acknowledge that and given them some
closure.”
ii. Deficient Representation
In addition to the enumerated mitigating factors, the trial court may
consider “additional criteria reasonably related to the decision being made.”
(Cal. Rules of Court, rule 4.408(a).) Ambriz-Tinajero argues that his trial
counsel provided deficient representation because counsel failed to highlight
Ambriz-Tinajero’s volunteer work as a coach and his continuous employment
as mitigating factors at sentencing. We are unpersuaded.
Here, Ambriz-Tinajero’s counsel stipulated to the admission of the
probation report, which included Ambriz-Tinajero’s statement that he was a
volunteer coach and was continuously employed. The trial court “read and
considered” that report. Moreover, T.A., G.A., K.A.M., and K.B.M. all
testified that Ambriz-Tinajero coached G.A., K.A.M., and K.B.M. Thus, the
court was well aware of Ambriz-Tinajero’s volunteer work and continuous
employment. Based on this, we cannot conclude that his counsel’s failure to
raise it again at sentencing constitutes deficient performance.
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iii. Prejudice
Even assuming that trial counsel’s performance was deficient, we
would find no prejudice. Ambriz-Tinajero argues that, had his counsel raised
the additional mitigating factors at sentencing, there was a reasonable
probability he would have received the middle term of six years on count X,
instead of the upper term of eight years. We disagree.
In Strickland, the United States Supreme Court held that the trial
counsel’s failure to offer additional mitigating evidence at sentencing was not
prejudicial because “[g]iven the overwhelming aggravating factors, there
[was] no reasonable probability that the omitted evidence would have
changed the conclusion that the aggravating circumstances outweighed the
mitigating circumstances.” (Strickland, supra, 466 U.S. at p. 700.)
We reach the same conclusion here. The trial court found three
aggravating circumstances and one mitigating circumstance even though it
read and considered Ambriz-Tinajero’s written statement highlighting his
volunteer work and employment. Thus, we cannot conclude that those
factors would have made any difference here.
In any event, there was ample reason for the trial court to discount
Ambriz-Tinajero’s volunteer work and employment as mitigating factors.
First, Ambriz-Tinajero arguably took advantage of his role as K.B.M.’s
volunteer wrestling coach when he committed the sexual assaults. Indeed,
K.B.M. testified that she had to “disassociate [herself] from what would
happen at home” while she was at practice.
Second, Ambriz-Tinajero’s employment arguably made it easier for him
to commit the sexual assaults. From 2014 to 2018, Ambriz-Tinajero worked
as an apartment manager for the apartment that he and his family lived in
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and would be at home “[o]ff and on during the day.” Thus, his job gave him
unfettered access to K.B.M. while her mother was away at work.
Finally, the trial court’s comments about the pretext call confirm that
consideration of Ambriz-Tinajero’s volunteer work and employment would
not have affected his sentence. Citing People v. Key (1984) 153 Cal.App.3d
888, Ambriz-Tinajero counters that we should disregard these comments
because the court improperly faulted him for his lack of remorse since he
never acknowledged guilt. (Id. at p. 900 [lack of remorse can only be an
aggravating factor when the defendant acknowledges guilt].) But the court
did not expressly find lack of remorse to be an aggravating factor here.
Although the court did comment that Ambriz-Tinajero could have
acknowledged what he did and “given [K.B.M. and K.A.M.] some closure,” the
court made that comment after highlighting the adoptive admissions that
Ambriz-Tinajero made during the pretext call. Thus, when its comments are
viewed in context, the court was focused on the strong evidence of guilt,
rather than any lack of remorse.
Accordingly, we find no prejudice at sentencing as well.
C. Custody Credits
Lastly, Ambriz-Tinajero contends and the People concede that he is
entitled to one additional day of presentence conduct credit. We agree. “A
defendant is entitled to actual custody credit for ‘all days of custody’ in
county jail and residential treatment facilities, including partial days.”
(People v. Rajanayagam (2012) 211 Cal.App.4th 42, 48.) He is also entitled
to conduct credits at a rate of 50 percent of actual time served. (People v.
Nunez (2008) 167 Cal.App.4th 761, 764.) “But, if the defendant’s offense is
statutorily defined as ‘violent,’ section 2933.1, subdivision (c) limits the
presentence conduct credit to 15 percent of actual time served before
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sentencing.” (Ibid.)
Here, Ambriz-Tinajero was convicted of rape, a violent felony under
section 667.5, subdivision (c)(3). He is therefore entitled to a 15 percent
presentence conduct credit. The trial court correctly awarded Ambriz-
Tinajero 101 days of actual custody credit (§ 2900.5) but only awarded him
14 days, rather than 15 days, of presentence conduct credit (§ 4019, subds.
(b), (c)). Accordingly, the abstract of judgment should be corrected to reflect
one additional day of conduct credit.
III. DISPOSITION
We remand this matter for the trial court to prepare an amended
abstract of judgment reflecting 116 days of presentence credit. In all other
respects, the judgment is affirmed.
CHOU, J.
WE CONCUR.
JACKSON, P. J.
BURNS, J.
A172859/ P. v. Julio Ambriz-Tinajero
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