Filed 7/27/22 P. v. Arevalo CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kern County. Michael E. Dellostritto, Judge.

Janet J. Gray, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary, and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Defendant raped a young woman and committed lewd acts upon two separate children. He raises several challenges to the judgment, including a claim that his aggregate sentence of 65 years to life in prison is cruel and unusual. We reject his contentions and affirm.

BACKGROUND

In an information filed February 6, 2017, the Kern County District Attorney charged defendant with the rape of Jane Doe 1 in 2009 (count 1; Pen. Code, § 261, subd. (a)(2)),[1] the rape of Jane Doe 2 on or about April 8, 2009 (count 2; ibid., the rape of Jane Doe 2 while she was unconscious on or about April 8, 2009 (count 3; id. at subd. (a)(4)), sexual battery on Jane Doe 2 (count 4; § 243.4, subd. (a)), committing a lewd and lascivious act upon Jane Doe 3, a child under the age of 14, between June 1, 2015, and July 25, 2015 (count 5; § 288, subd. (a)), and committing a lewd and lascivious act upon Jane Doe 4, a child under the age of 14, between November 1, 2015, and November 9, 2016 (count 6; ibid.) A multiple victim enhancement (§ 667.61, subd. (e)) was alleged as to counts 1, 2, 5, and 6.

The prosecutor moved to dismiss count 4, which the court granted. A jury found defendant not guilty of count 1, and convicted him on counts 2, 3, 5, and 6, and found true all of the multiple victim enhancements.

The court sentenced defendant to a term of 15 years to life on count 2; a consecutive term of 25 years to life on count 5; a consecutive term of 25 years to life on count 6; and a stayed (§ 654) term of six years on count 3.

FACTS

Jane Doe 1’s Testimony[2]

Jane Doe 1 was “around 18 or 19 years old” in 2009. She had two children with defendant’s son, Arturo Arevalo, Jr.

When she was 15, she moved in with Arevalo, Jr., defendant, and defendant’s wife. Defendant was like a father figure to her.

By 2009, defendant had gotten divorced and moved out. Jane Doe 1 continued to live with Arevalo, Jr., and his mother. Defendant would still come to the house often and give Jane Doe 1 rides places.

At one point, after giving Jane Doe 1 a ride, defendant “sexually abused” her. When asked to clarify how defendant sexually abused her, Jane Doe 1 explained he had intercourse with her. Jane Doe 1 asked defendant to stop. Jane Doe 1’s hands were behind her back so she could not push defendant off of her. Jane Doe 1 was in shock because she had known defendant for many years and had trusted him.

A month after this incident, Jane Doe 1 called law enforcement to report it. Defendant’s ex-wife was accusing Jane Doe 1 of having an affair with defendant. Jane Doe 1 told Arturo, Jr. about the incident the same day she called law enforcement, but he did not believe her initially. She did not tell law enforcement right away because she was scared.

Law enforcement conducted a recorded interview of Jane Doe 1in 2009, but the recording was destroyed in 2016 pursuant to a records-retention policy.

Jane Doe 2

When Jane Doe 2 was about 24 years old, she had issues with her mother causing her to move out of the home they shared. Thereafter, Jane Doe 2 “stayed here and there … wherever I could lay my head.”

Defendant knew Jane Doe 2’s mother and told Jane Doe 2 she could stay in one of his rooms. Jane Doe 2 stayed the night at defendant’s place on perhaps two occasions. One of those times, she arrived at defendant’s home at nighttime. She went to a room, closed the door most of the way, and went to sleep. Later, she woke up because defendant was having rough sex with her. Jane Doe 2 screamed. Defendant grabbed her tighter and was moaning.

Jane Doe 2 quickly put on her shorts and ran to the home of her child’s father. She told him what had happened and called law enforcement.

On April 8, 2009, Sheriff’s Deputy Barron was dispatched to defendant’s address, after defendant had called to report that someone was banging on his door and making death threats. Defendant did not open the door for the person and did not see who it was. Defendant suspected it was the father of Jane Doe 2’s child. Defendant claimed that Jane Doe 2 was his girlfriend.

Later that day, at about 8:50 a.m., Deputy Barron learned that another deputy was investigating Jane Doe 2’s rape allegation. Jane Doe 2 told Deputy Barron the suspect’s name, and it was the person he had met earlier that day (i.e., defendant). Deputy Barron returned to defendant’s residence to get additional statements.

During this conversation, defendant “clarified himself” and said that Jane Doe 2 was not his girlfriend, but rather just someone he was interested in. Defendant said she had been living with him for two weeks. Defendant said that the night before, he had told Jane Doe 2 he wanted to bring over another woman to have sex. Jane Doe 2 became jealous and the two had an argument. Defendant claimed two other people were at his home that night.

Defendant said that that night, he entered Jane Doe 2’s bedroom, pulled down her pants and underwear, and began having intercourse with her. Defendant said Jane Doe 2 did not say anything. Defendant said that “[t]here was no action from her.” Defendant said he did not obtain her permission. However, he believed the encounter was consensual because the door was open, and he took that as a sign to enter. As far as Deputy Barron could recall, defendant said Jane Doe 2 was asleep, but eventually woke up and said something. Jane Doe 2 shouted, “What are you doing?” She then got up and ran out of the house.

Defendant was cooperative during Deputy Barron’s interview.

Jane Doe 3

Jane Doe 3 was born in May 2006. In 2015, defendant had a girlfriend named Alicia G. Alicia’s daughter and Jane Doe 3 were best friends and would go to a nearby pool. Users were charged money to access the pool.

Alicia’s daughter asked Jane Doe 3 to ask defendant for money to take to the pool. Jane Doe 3 went upstairs into defendant’s room and asked him for a few dollars. Defendant said something Jane Doe 3 could not understand and got close to her. Defendant began touching and rubbing her “private parts”[3] over her clothes. She ran downstairs and went to her house. Jane Doe 3 did not go to the pool.

A couple days later, Jane Doe 3 told her friend what had happened. Jane Doe 3 did not initially tell her mother what had happened.

Deputy Sanchez submitted a report to the district attorney’s office. When asked what happened with the case, Deputy Sanchez testified that from what he could recall, “it wasn’t enough” to go forward with a prosecution at the time.

Jane Doe 4

Jane Doe 4 was seven years old when she testified at trial. Jane Doe 4 testified that her “third grandma” was “Grandma Alicia.” Defendant was Grandma Alicia’s boyfriend.

When Jane Doe 4 was four or five years old, something bad happened at defendant’s house. Her grandmother went to get pizza, but Jane Doe 4 stayed behind because she was watching her favorite movie. Jane Doe 4 was laying on a bed watching the movie when defendant began touching her “butt” under her clothes. Defendant told her to turn around, and then began touching her “boobs” under her clothing. He also began rubbing her vagina – which she referred to as her “cookie” – under her clothes.[4] Jane Doe 4 told defendant to stop. After a little while, defendant stopped. Jane Doe 4 told her grandmother and mother what happened.

Jane Doe 4 subsequently told law enforcement about the incident in an interview on November 9, 2016. Jane Doe 4 told Deputy Sanchez that she did not like “Tigre,” her grandmother’s boyfriend, because he touched her butt. Tigre also touched her “cookie,” while telling her to look at the movie. Jane Doe 4 could not push him away because he was holding her hands. Tigre also touched her “chi-chis” under her shirt.

During the interview, Deputy Sanchez realized Jane Doe 4 was describing the same person as the suspect in Jane Doe 3’s case.

Deputy Sanchez interviewed Jane Does 1, 2, and 4, in November 2016. Deputy Sanchez arrested defendant in December.

DISCUSSION

1. Absence of Express Analysis in the Record Regarding Evidence Code Section 352 Does Not Establish Error

Defendant argues the court committed instructional error with respect to evidence admitted under Evidence Code section 1108.

Law

Generally, evidence of a person’s character trait is inadmissible to show he or she acted in conformity with that trait on a specific occasion. (Evid. Code, § 1101, subd. (a).) However, there is an important exception to this rule. The rule does not apply when the defendant is accused of a sexual offense, and the prosecution admits evidence the defendant committed another sexual offense.[5] (Id. at § 1108, subd. (a).)

“[T]he clear purpose of [Evidence Code] section 1108 is to permit the jury’s consideration of evidence of a defendant’s propensity to commit sexual offenses.” (People v. Villatoro (2012) 54 Cal.4th 1152, 1164 (Villatoro).) “The propensity to commit sexual offenses is not a common attribute among the general public. Therefore, evidence that a particular defendant has such a propensity is especially probative and should be considered by the trier of fact when determining the credibility of a victim’s testimony.” (People v. Meneses (2019) 41 Cal.App.5th 63, 68, fn. 2.)

While Evidence Code 1108 supersedes Evidence Code section 1101, it does not supersede other Evidence Code provisions. (Villatoro, supra, 54 Cal.4th at p. 1163.) Indeed, Evidence Code section 1108 makes this point expressly with respect to Evidence Code section 352. (Villatoro, at p. 1163.) Thus, sexual offense propensity evidence must satisfy Evidence Code section 352 in order to be admissible. (Evid. Code, § 1108, subd. (a).) Evidence Code section 352 grants trial courts the discretion to exclude evidence if its probative value is outweighed by the probability that its admission will create substantial danger of undue prejudice. (Evid. Code, § 352.)

Background

The court instructed the jury:

“The People have presented evidence that the defendant committed the crimes of rape by force, rape of an unconscious woman and lewd, lascivious act charged in this case.

“If the People have proved beyond a reasonable doubt that the defendant committed one or more of these crimes, you may, but are not required to conclude from that evidence that the defendant was disposed or inclined to commit sexual offenses and based on that decision also conclude that the defendant was likely to commit and did commit the other sex offenses charged in this case.

“If you find that the defendant committed one or more of these crimes, that conclusion is only one factor to consider along with all the other evidence. The People must still prove each charge and allegation beyond a reasonable doubt.”

Later, the prosecutor argued to the jury:

“[W]e know that he violates women, because he committed two rapes in 2009 and you will see that you can use that evidence if you believe that one or more of the acts were proved beyond a reasonable doubt, so if you say you only believe Jane Doe IV and you believe that charge beyond a reasonable doubt, then, you’re allowed to use … the evidence of the other women and children to decide whether or not he’s also guilty of those crimes, so maybe you believe everybody, but you’re on the fence about Jane Doe I, because of the discrepancy in her story, you are allowed to look at all the evidence together, not separately, but together and decide if this person who has a propensity to commit these types of acts and did he do it even though she doesn’t remember exactly how it happened.”

In defense counsel’s argument, he made the following analogy:

“I would like to analogize and it’s going down to Lowe’s and buying four six-foot 2X4 planks and you take them in the backyard and you put three of them aside and you take the fourth plank and you stand it on the gross. What happens? It falls over, right, so you take each of the other three and you stand each of them independently up, so what happens, they all fall over. None of them stand by themselves. [¶] However, if you’re clever and you want them to stand up, you take two or more and lean them against one another and, lo and behold, they will stand up, not because they will stand up on their own and not because that count has been proven beyond a reasonable doubt standing on its own, but because you’ve used the other 2X4s to supply missing elements of that offense.”

In rebuttal, the prosecutor argued the analogy was inapt. She said,

“The jury instruction does allow them to lean on each other if you find certain things to be true and that’s why they are charged together and that’s why probably some of them weren’t charged originally on their own. Yeah, because it’s true, they are harder to decide especially with Jane Doe I.^[[6]^] I pointed that out and I know you’re going to have a difficult time with that one, because she’s totally forgotten the major details of that, but Daniel Sanchez testified that that’s not unusual in her case.

“And we all know that it is hard to remember things 10 years ago and I don’t know what’s going in her mind, but when she stands with Jane Doe IV, the victim, it does give her more weight to her credibility. It does not – it does not substitute for an element of the crime and I would never ask you to do that.

“I believe that all elements of each crime have been testified by the testimony of each witness on their own. They have all testified to crimes that – that cover each element. I think the only question in this case is the credibility of the witnesses. If you believe their testimony, and if you believe one, just one beyond a reasonable doubt, then you can use the evidence of all four of them together to help show that the defendant is more likely to commit this crime and it does – it bolsters their credibility.”

Later, the prosecutor continued,

“Now Jane Doe II did not tell Deputy Sanchez that she was out smoking dope before she came to the defendant’s house. What she told Deputy Sanchez was she was hanging out [at] the house smoking dope with the defendant.

“But when you look at – she originally said when she reported the rape that she drank a – I forget, certain ounces of beer, she drank a beer. She testified in court that she did not drink or use drugs. Later when she was interviewed by Deputy Sanchez, she said she smoked drugs. When she was questioned at the hospital, she told him she drank a beer. She never indicated that she used drugs. Again, I don’t know what drugs she used, but she was able to go to sleep, so I don’t think they were smoking crack or methamphetamine, maybe they were smoking pot and drinking, I don’t know.”

Analysis

On appeal, defendant argues the court “failed to make a[n Evidence Code] section 352 analysis before giving the instruction.” But the court’s consideration of Evidence Code section 352 can be inferred even when the trial court does not expressly state its analysis. (See Villatoro, supra, 54 Cal.4th at p. 1168.) We conclude there are sufficient grounds to infer the court considered Evidence Code section 352.[7]

First and foremost, reviewing courts generally presume trial courts are aware of, and follow, the applicable law. (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 398.)

Second, Evidence Code section 1108 expressly makes satisfaction of Evidence Code section 352 a prerequisite to admissibility. And there is no doubt that the court was aware of Evidence Code section 1108. It follows, then, that the court was also aware of the need to satisfy Evidence Code section 352.

Defendant notes that the court and counsel discussed various instructional issues, and that the discussion did not reference Evidence Code section 352. But the court and counsel only discussed selected issues regarding a small portion of the instructions. There were many jury instructions that were not discussed at all. We cannot infer from this silence that the court did not personally engage in any analysis in determining whether the undiscussed instructions were proper; only that no such analysis was discussed on the record.

2. Evidence Code Section 352 Did Not Preclude Court’s Propensity Instruction

Defendant argues that the court should not have given the propensity instruction under Evidence Code section 352.

Law

Evidence Code section 352 grants trial courts the discretion to exclude evidence if its probative value is outweighed by the probability that its admission will create substantial danger of undue prejudice. (Evid. Code, § 352.) A trial court may consider Evidence Code section 352 factors when deciding whether to permit the jury to infer a defendant’s propensity from other sex crimes evidence. (Villatoro, supra, 54 Cal.4th at p. 1163.)

Analysis

Defendant contends the evidence of the various sex crimes was “weak.” With respect to count two, defendant observes that while “the State claimed that [Jane Doe 2] had been sleeping when [he] entered the room and began intercourse with her while asleep, he stated that he went into the room just after she left his bedroom.” However, it was not merely that “the State claimed” Jane Doe 2 had been sleeping – Jane Doe 2 testified to that effect at trial. And the fact that defendant offered an account that differed from Jane Doe 2’s testimony in self-serving ways does not render the case weak.

Defendant also contends the district attorney’s office failed to prosecute the crime against Jane Doe 2 for nine years “apparently recognizing some flaws of the claims made by [Jane] Doe 2.” Defendant offers no record citation in support of this claim.[8] In any event, the case is not so weak as to fatally undermine its probative value. Jane Doe 2 directly testified to defendant’s rape. And defendant himself said that he did not obtain her permission; based his belief that she consented on the fact that her door was open; and that Jane Doe 2 had shouted, “What are you doing?” before getting up and running out of the house. Whatever other factors defendant had in his favor, this evidence meant the case was not “weak.”

As to Jane Doe 3, Deputy Sanchez did testify as to his recollection that the district attorney did not immediately prosecute the case because there was “not enough” to proceed with a prosecution. Assuming Deputy Sanchez’s recollection was correct, and the district attorney’s office indeed came to that conclusion at the time, it would not preclude a finding the evidence later adduced at trial was not weak. Indeed, Jane Doe 3 testified clearly and directly about defendant’s crime. The defense did little to undermine her claims.

Defendant contends that the allegations regarding Jane Doe 4 were also weak. Not so. Defendant points to Jane Doe 4 saying he grabbed her “boobs.” Defendant says her account in this regard is “a situation that is hard to imagine occurring since she was not at an age to have developed breasts subject to being grabbed.” However, a reasonable inference favoring the judgment is that Jane Doe 4 was using the word “boobs” to describe a location on her body (i.e., her chest) rather than to suggest she had developed breasts at the time of the molestation.

Moreover, even if the prosecution’s evidence was such that the propensity evidence was crucial to satisfying the beyond-the-reasonable doubt standard, it would not necessarily warrant exclusion of the propensity evidence. The entire point of Evidence Code section 1108 is to allow propensity evidence to affect a jury’s verdict. It would completely undermine the core purpose of this statute to say propensity instructions are improper in all cases where the propensity evidence was essential to the jury’s verdict.[9]

Defendant also suggests that because Jane Does 3 and 4 both knew Alicia G., “it does not take much to infer that [Jane] Doe 4 may have been aware of the earlier incident with [Jane] Doe 3.” Even if this chain of inferences were accepted – a debatable assumption – it would do little damage to the prosecution’s case. The possibility Jane Doe 4 may have known of Jane Doe 3’s incident does not render the case “weak.”

Defendant contends that there is a lack of evidence that an interest in minor girls is common among those men who are active sexually with adult women, either consensually or otherwise. But the trial court was not required to view the crimes at such a granular level of abstraction. The trial court could have reasonably concluded that the evidence supported an inference defendant has a propensity to seek sexual gratification through nonconsensual means when an opportunity presents itself with a vulnerable female. As a result, the trial court could have further concluded such evidence should go to a jury for consideration, along with the admonition that it was “only one factor to consider along with all the other evidence” and that each charge still must be proven beyond a reasonable doubt. We see no error in the instruction permitting the jury to consider the propensity evidence.[10]

3. The Trial Court Did Not Err in Denying Severance

Defendant moved to sever counts 1 through 4 from counts 5 through 6. The court denied the motion. Defendant argues the denial of severance was error and violated his right to due process.

Law

“ ‘ “[B]ecause consolidation or joinder of charged offenses ordinarily promotes efficiency, that is the course of action preferred by the law.” ’ ” (People v. O’Malley (2016) 62 Cal.4th 944, 967.) Charges of the same class are “properly joined unless the defense made such a “ ‘clear showing of potential prejudice’ ” that the trial court’s denial of defendant’s severance motion amounted to an abuse of discretion.” (Id. at p. 968.)

“In determining whether a trial court’s refusal to sever charges amounts to an abuse of discretion, we consider four factors: (1) whether evidence of the crimes to be jointly tried is cross-admissible; (2) whether some charges are unusually likely to inflame the jury against the defendant; (3) whether a weak case has been joined with a stronger case so that the spillover effect of aggregate evidence might alter the outcome of some or all of the charges; and (4) whether any charge carries the death penalty or the joinder of charges converts the matter into a capital case.” (People v. O’Malley, supra, 62 Cal.4th at p. 968.)

“Not all of these considerations are of equal weight: “ ‘[T]he first step in assessing whether a combined trial [would have been] prejudicial is to determine whether evidence on each of the joined charges would have been admissible … in separate trials on the others. If so, any inference of prejudice is dispelled.’ [Citations.] Cross-admissibility suffices to negate prejudice, but it is not essential for that purpose.” (See People v. Jenkins (2000) 22 Cal.4th 900, 948.)

“Even if a trial court’s severance or joinder ruling is correct at the time it was made, a reviewing court must reverse the judgment if the ‘defendant shows that joinder actually resulted in “gross unfairness” amounting to a denial of due process.’ ” (People v. Scott (2015) 61 Cal.4th 363, 396.)

Analysis

Here, we conclude (1) evidence on each of the joined charges would have been admissible in separate trials on the others and (2) that such cross-admissibility dispels prejudice in this case. Specifically, evidence of each count would have been admissible as propensity evidence in a separate trial on the other counts. (See Evid. Code, § 1108.)

Defendant disagrees, primarily relying on People v. Earle (2009) 172 Cal.App.4th 372. In that case, the appellate court made the unremarkable observation that purported propensity evidence is inadmissible when it “has no tendency in reason to show that the defendant actually has the propensity” in question. (Id. at p. 397.) For example, evidence of an uncharged instance of indecent exposure does not support an inference that the defendant has a propensity to commit rape. (Id. at p. 398.) In that circumstance, evidence of the uncharged instance of indecent exposure is inadmissible.

Here, however, the evidence of each count does support a relevant inference as to the other counts. Specifically, the inference that defendant has a propensity to seek sexual gratification through nonconsensual means when an opportunity presents itself with a vulnerable female. Therefore, the evidence of each count would be admissible in a separate trial of the other counts to show defendant acted in accordance with that propensity in the charged incident. (See Evid. Code, § 1108.)

4. Defendant Has Not Established Reversible Marsden[11] or Sixth Amendment Error

Defendant addressed the court at his sentencing hearing. Defendant said that, with respect to Jane Doe 4, he was no longer living at the address at which he was being accused of misconduct. He then said, “I would like to know what happened to my witnesses.” Subsequent conversation clarified that he was referring to people who would know he did not live in the house at the time. Defendant said he gave the names of the people to his attorney.

Defendant then asked what happened to the report of defense investigator Serra. Defense counsel said that he reviewed Serrano’s investigation, and it “was a lot of speculation” and hearsay. No one had any “facts” that would “dispute any of the elements of any of the crimes.”

The prosecutor observed that there were possibly two people in the house involving Jane Doe 2. One of them was named Jose with an unknown last name. The other one “had exculpatory evidence,” and the prosecution tried to locate her. However, the prosecution believed she moved back to Mexico and could not be located.

The court observed that the prosecution witnesses’ testimony indicated the incident at issue occurred when defendant was in a bedroom with the victim. Consequently, the court did not see how the testimony of any witnesses elsewhere in the house would benefit him.

The court advised defendant of his appeal rights. Defendant said he did want to appeal, but also wanted his attorney removed “because he did not help me.” Upon that request, the court conducted a Marsden hearing.

At the outset of the Marsden hearing, the court informed defendant that if he convinced the court that defense counsel did not appropriately represent you, then he would be replaced. Alternatively, if defendant did not convince the court that he had received ineffective assistance of counsel, then his current counsel would remain.

Defendant said that, with respect to the incident involving Jane Doe 2, he had been injured by an accident in 2007. Yet, defense counsel did not introduce medical records indicating he injured his head and back. Defendant contended that while there was “supposedly … aggressive force” used against the victim, he could not have done that in his physical state. Defendant also said he told counsel that he had paid Jane Doe 2 $120 for her “service” and that is one of the reasons he went to her room.

The court asked what else his counsel failed to do. Defendant told the court there was a “cover up in regards to evidence, because California law states that there has to be a victim and a witness – that there has to be two….”

Defendant also said he was bleeding internally during trial.

During trial, defendant asked counsel what happened with Serrano’s investigation and counsel said, “t was not necessary.”

The court denied the [i]Marsden motion.

Law

When a defendant makes a Marsden motion, “the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of counsel’s inadequacy.” (People v. Cole (2004) 33 Cal.4th 1158, 1190.)

“Once a defendant is afforded an opportunity to state his or her reasons for seeking to discharge an appointed attorney, the decision whether or not to grant a motion for substitution of counsel lies within the discretion of the trial judge. The court does not abuse its discretion in denying a Marsden motion ‘ “unless the defendant has shown that a failure to replace counsel would substantially impair the defendant’s right to assistance of counsel.” ’ [Citations.] Substantial impairment of the right to counsel can occur when the appointed counsel is providing inadequate representation or when ‘the defendant and the attorney have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result [citation].’ ” (People v. Myles (2012) 53 Cal.4th 1181, 1207.)

Analysis

Defendant contends the court erred in denying the Marsden motion; erred in failing to appoint substitute counsel to, among other things, prepare a motion for new trial based on trial counsel’s ineffective assistance; and violated his Sixth Amendment rights.

We find no error. The court permitted defendant to explain the grounds for the motion and to relate specific instances of counsel’s allegedly inadequacy. And we see no basis for disturbing the court’s subsequent determination that defendant had not carried his burden of showing substantial impairment to his right to counsel.

With respect to defendant’s claim of exculpatory medical records, counsel indicated defendant did not tell him about any medical records. The trial court credited counsel’s assertion, making a factual finding that defendant did not tell counsel about the medical records. Defendant says the court’s conclusion had no “factual basis.” But counsel’s representation is the factual basis. To the extent there was a credibility question between defendant and counsel, the trial court was entitled to accept counsel’s explanation.[12] (See People v. Smith (1993) 6 Cal.4th 684, 696.)

Defendant’s focus on other people who were at the house where one or more of the alleged incidents occurred does not warrant reversal. He insists their testimony could have been helpful. However, counsel conveyed that any such people could not offer sufficiently valuable testimony because defendant committed the alleged acts while alone with the victims. While defendant clearly disagreed and believed it would be helpful for them to testify, “ ‘[t]actical disagreements between the defendant and his attorney do not by themselves constitute an “irreconcilable conflict.” ’ ” (People v. Myles, supra, 53 Cal.4th at p. 1207.)

Defendant points to the prosecutor’s statement about one of the witnesses having exculpatory evidence. Defendant observes that defense counsel did not indicate whether or not he made any effort to locate that witness.[13] However, defense counsel indicated that people at the home who did not witness the actual crimes would not be able to provide helpful testimony. Defendant has failed to show this determination by counsel constituted ineffective assistance.[14] Without citation to the record, defendant speculates the other household residents “could have supported his assertion that he had a legitimate expectation that having sex with [Jane] Doe 2 was consensual whether due to payment or other circumstances.” This speculation is unpersuasive.

Defendant faults the court for not having Investigator Serrano testify or produce his investigative report which “may have” supported defendant’s claims over counsel’s. But counsel stated he considered Serrano’s investigation and concluded it was not beneficial to the defense case. The trial court was entitled to accept counsel’s explanation on a credibility basis without conducting additionally inquiry into leads that “may have” shown counsel was wrong. (See People v. Webster (1991) 54 Cal.3d 411, 436.)

Defendant argues that certain aspects of the probation report also establish ineffective assistance of counsel. However, that contention was not raised below and cannot be done so here for the first time. (Cf. People v. Gay (1990) 221 Cal.App.3d 1065, 1070 [principles of forfeiture apply to raising issue of substitute counsel on appeal when it was not raised below].)

Defendant says that counsel’s assertion that he tried to question Jane Doe 2 about exchanging money for sex but was prevented by the prosecutor is not supported by the record on appeal. But this claim cannot establish ineffective assistance so as to have required substitution of counsel. An appellate court will not find ineffective assistance of counsel if there is even a conceivable reason for counsel’s omissions. (See People v. Nguyen (2015) 61 Cal.4th 1015, 1051.) Assuming counsel in fact did not attempt to ask Jane Doe 2 about defendant’s claim of prostitution, it is unclear whether or not there was a tactical reason for it. For example, counsel could have had reason to believe Jane Doe 2 would deny the alleged act of prostitution and that asking her the question would only have served to get unhelpful testimony before the jury. In sum, defendant has not established that any failure to question Jane Doe 2 in the manner he desired was actually ineffective assistance of counsel requiring substitution.

For these reasons we reject defendant’s claim that the court violated his Sixth Amendment rights or erred in denying the Marsden motion or failing to appoint independent counsel to investigate claims of ineffective assistance.[15]

5. Defendant Was Not in Custody for Miranda[16] Purposes When He Gave Statements in Question

The court held an Evidence Code section 402 hearing on the admissibility of statements defendant made to police in 2009 regarding Jane Doe 2. Deputy Barron testified he responded to a call on April 8, 2009, at an address on Lilac Court. He responded to that address because defendant reported someone had been banging on his door and made threatening comments.

Deputy Barron asked defendant who he believed had made the threat. Defendant said Jane Doe 2 was his girlfriend and that it was probably “the boyfriend.” Defendant said Jane Doe 2 had been staying with him for two weeks, and the two had gotten into an argument. Defendant asked Deputy Barron to “tell them not to come over.”

Later that day, Deputy Venable asked Deputy Barron to meet him at an address in Wasco pursuant to an investigation occurring there. When Deputy Barron arrived, he contacted Deputy Venable and Jane Doe 2. Deputy Venable told Deputy Barron that he was investigating an alleged rape. Jane Doe 2 told Deputy Barron that defendant had raped her. Jane Doe 2 said that she had been living with defendant for two weeks. Jane Doe 2 said that she did not have an intimate relationship with defendant, and they were just roommates.

When Deputy Barron asked her about defendant’s claims earlier that day, Jane Doe 2 said it was the father of her child who went to defendant’s home.[17]

Deputy Venable asked Deputy Barron to return to the address where he had spoken with defendant. When Deputy Barron arrived, defendant was not there. A woman identified herself as defendant’s daughter. Deputy Barron had her call defendant and the two had a conversation.

Deputy Barron asked defendant, “[D]o you mind if I talk to you more about what happened this morning.” Defendant returned to the home and invited Deputy Barron inside. The two spoke in defendant’s living room.

Deputy Barron asked defendant about Jane Doe 2. Defendant initially said she was his girlfriend and was jealous – that was why she was “mad” at him. Later, defendant said that Jane Doe 2 was not his girlfriend, but rather a person with whom he wanted to have a relationship.

Deputy Barron asked defendant what had happened the night before. Defendant said he and Jane Doe 2 had an argument, and she went to her room to sleep. Defendant said that shortly after, defendant went to her room as well intending to have intercourse with her. Defendant said it was dark in the room because there was no electricity. Defendant said he pulled down Jane Doe 2’s pants and underwear and put his penis in her vagina. Defendant said Jane Doe 2 never gave verbal consent for intercourse. However, he thought that because the door was open, it was a sign for him to enter and have intercourse with her. Jane Doe 2 woke up and said, “What are you doing?” She gathered her clothes and ran away.

Deputy Barron then arrested defendant. Deputy Barron was wearing his standard uniform, which includes a belt with a gun and handcuffs. However, prior to the time of the arrest, Deputy Barron had not handcuffed defendant nor had he drawn his weapon. Prior to the time of the arrest, Deputy Barron had not Mirandized defendant because he did not consider him to be in custody. Deputy Barron did not expressly tell defendant he could leave.

The court ruled that, “in considering the totality of the circumstances” defendant was not in custody. The court observed that defendant agreed to the interview, it occurred at his home, he was not told he was detained, the questioning was not done in an accusatory fashion, and there was nothing to indicate his freedom of movement was curtailed.

“Miranda requires that a criminal suspect be admonished of specified Fifth Amendment rights. But in order to invoke its protections, a suspect must be subjected to custodial interrogation.… [Citation.] Thus two requirements must be met before Miranda is applicable; the suspect must be in ‘custody,’ and the questioning must meet the legal definition of ‘interrogation.’ ” (People v. Whitfield (1996) 46 Cal.App.4th 947, 953.)

Custody means formal arrest or “a restraint on freedom of movement of the degree associated with a formal arrest.” (People v. Moore (2011) 51 Cal.4th 386, 395.)

“Whether a defendant was in custody for Miranda purposes is a mixed question of law and fact. [Citation.] When reviewing a trial court’s determination that a defendant did not undergo custodial interrogation, an appellate court must ‘apply a deferential substantial evidence standard’ [citation] to the trial court’s factual findings regarding the circumstances surrounding the interrogation, and it must independently decide whether, given those circumstances, ‘a reasonable person in [the] defendant’s position would have felt free to end the questioning and leave.’ ” (People v. Moore, supra, 51 Cal.4th at p. 395.)

Here, there was substantial evidence to support the trial court’s conclusion the questioning occurred in a non-custodial context. As the court observed, defendant agreed to the interview in response to a noncoercive question. The interview occurred at his home and there was nothing to indicate to defendant his freedom of movement had been curtailed.

Defendant points to the fact that Deputy Barron did not inform him that he was not under arrest and could decline to answer questions. However, the right to decline to answer questions is one of the Miranda advisements. It would be circular to rely on the failure to give one of the Miranda advisements to conclude defendant was in custody, and, therefore, Miranda advisements were required. Moreover, such a holding would collapse the rule that Miranda advisements are not required before a defendant is in custody.

Additionally, Deputy Barron asked defendant, “Do you mind if I talk to you more about what happened this morning?” Though not an express advisement that the conversation was voluntary, this question conveyed voluntariness in a different way.

Defendant also notes that he was arrested after the interview concluded. But the statements admitted at trial were made before arrest. The fact that defendant was undoubtedly in custody after making the admitted statements does not establish Miranda error.

Finally, defendant observes that he is Spanish-speaking and “may not be familiar with the procedures and/or rights afforded to persons in this country.” However, the fact someone is “Spanish-speaking” does not, by itself, support an inference they are unaware of legal rights. In any event, our inquiry is an objective one, not a subjective one. (People v. Macklem (2007) 149 Cal.App.4th 674, 689–690.) The question is not whether defendant actually understood he was free to leave, but whether the circumstances objectively indicated he was not free to leave.

6. Defendant Forfeited Cruel-and-Unusual-Punishment Challenge to His Sentence

Defendant next contends his aggregate sentence of 65 years to life in prison violates constitutional prohibitions on cruel and unusual punishment.

Defense counsel asked that the court run defendant’s indeterminant sentences concurrently rather than consecutively, given defendant’s lack of criminal record at the age of 40.[18] The court ultimately sentenced defendant to a term of 15 years to life on count 2; a consecutive term of 25 years to life on count 5; a consecutive term of 25 years to life on count 6; and a stayed (§ 654) term of six years on count 3. Defense counsel did not object to the sentence pronounced by the court. On appeal, defendant now asserts the sentence pronounced by the court violate the Eighth Amendment to the federal Constitution and article I, section 17 of the California Constitution.

Defendant’s challenges are forfeited because he failed to make an objection below.[19] (See People v. Gamache (2010) 48 Cal.4th 347; People v. Burgener (2003) 29 Cal.4th 833, 886; People v. Speight (2014) 227 Cal.App.4th 1229, 1247–1248.)

Defendant contends counsel’s argument, that the court should impose concurrent rather than consecutive sentences, preserves a claim of cruel and unusual punishment. We fail to see how. Urging the court to exercise its discretion to impose concurrent rather than consecutive sentences is not the same as objecting to an aggregate sentence because it violates constitutional prohibitions on cruel and unusual punishment. The fact remains defendant forfeited these claims by “failing to articulate” an objection on constitutional grounds. (See People v. Burgener, supra, 29 Cal.4th at p. 886.)

Defendant cites to In re Sheena K. (2007) 40 Cal.4th 875, 887–889. However, Sheena K. was clear: “[W]e do not conclude that ‘all constitutional defects … may be raised for the first time on appeal, since there may be circumstances that do not present ‘pure questions of law that can be resolved without reference to the particular sentencing record developed in the trial court.’ (Id. at p. 889, italics added.) Here, defendant’s claim of cruel and unusual punishment is clearly dependent on the sentencing record in the trial court.

Accordingly, we agree with the numerous cases that directly hold cruel-and-unusual-punishment challenges are forfeited when not raised below. (See People v. Gamache, supra, 48 Cal.4th 347; People v. Burgener, supra, 29 Cal.4th at p. 886; People v. Speight, supra, 227 Cal.App.4th at pp. 1247–1248.)

7. Defendant Has Not Established Ineffective Assistance of Counsel

Defendant contends that counsel was ineffective for failing to object to his sentence on cruel-and-unusual-punishment grounds.

Background

The probation report indicated defendant had no known record of prior criminal conduct. Defendant’s probation report indicated that he scored a “0” on the Static-99R, which indicates he was at below-average risk for being charged or convicted of another sexual offense within five years after being released.

Ineffective Assistance of Counsel Defined

“To make out a claim that counsel rendered constitutionally ineffective assistance, ‘the defendant must first show counsel’s performance was deficient, in that it fell below an objective standard of reasonableness under prevailing professional norms. Second, the defendant must show resulting prejudice, i.e., a reasonable probability that, but for counsel’s deficient performance, the outcome of the proceeding would have been different.’ ” (People v. Hoyt (2020) 8 Cal.5th 892, 958.)

Counsel is not ineffective for failing to make a meritless objection. (People v. Jones (1998) 17 Cal.4th 279, 309.)

As explained below, we conclude an objection to defendant’s sentence based on the Eighth Amendment to the federal Constitution and article I, section 17 of the California Constitution would have been meritless. Therefore, we reject defendant’s ineffective assistance of counsel claim.

Constitutional Prohibitions on Cruel and Unusual Punishments

Both the federal and state constitutions prohibit cruel and unusual punishments. The Eighth Amendment has a “narrow proportionality principle” through which it “prohibits imposition of a sentence that is grossly disproportionate to the severity of the crime.” (Ewing v. California (2003) 538 U.S. 11, 20, 21.) However, outside of capital punishment, “successful challenges to the proportionality of particular sentences have been exceedingly rare.” (Id. at p. 21.)

The state constitution’s ban on cruel and unusual punishment also contains a proportionality principle prohibiting punishments “so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.” (People v. Dillon (1983) 34 Cal.3d 441, 478.) A sentence that “shocks the conscience” is different than one that merely “seems harsh.” (People v. Thomas (1974) 43 Cal.App.3d 862, 872.)

“Fixing the penalty for crimes is the province of the Legislature, which is in the best position to evaluate the gravity of different crimes and to make judgments among different penological approaches. [Citations.] Only in the rarest of cases could a court declare that the length of a sentence mandated by the Legislature is unconstitutionally excessive.” (People v. Martinez (1999) 76 Cal.App.4th 489, 494.)

Analysis

Defendant’s aggregate sentence of 65 years to life in prison for three separate sex crimes against three separate victims simply does not shock the conscience nor seem grossly disproportionate to the severity of the crimes. Defendant raped a woman and molested two vulnerable children. These are horrible crimes that should be punished sternly.

Defendant contends the aggregate sentence is cruel and unusual because it exceeds his life expectancy. He contends a sentence that exceeds a defendant’s life expectancy does not accomplish the goals of punishment, deterrence, or protection of society. To the contrary, the sentence furthers all three goals: It punishes defendant for his reprehensible conduct, it deters other would-be child molesters and rapists; and protects society from defendant’s harmful conduct.

Moreover, life expectancy cannot be the measuring stick because then we would have situations where a sentence imposed on a 70-year-old might be impermissible while the same sentence imposed for the same conduct on a 25-year-old would be permitted.

Defendant observes that some other crimes that are more “serious” or “onerous” carry lighter sentences or more generous parole eligibility than reflected in his sentence. It may be that crimes we or defendant consider more “serious” have lighter sentences. But “[f]ixing the penalty for crimes is the province of the Legislature, which is in the best position to evaluate the gravity of different crimes and to make judgments among different penological approaches.” (People v. Martinez (1999) 76 Cal.App.4th 489, 494.) This is not one of the “rarest of cases” where we would be justified in declaring “the length of a sentence mandated by the Legislature is unconstitutionally excessive.” (People v. Martinez (1999) 76 Cal.App.4th 489, 494.)

Defendant says that before “this case” he had no criminal record as an adult. But “this case” involved convictions for three separate incidents involving three separate victims. The earliest occurred in 2009 and the latest in 2016. The fact that these crimes were prosecuted in a single case does not obscure the fact that defendant has committed multiple serious sex crimes across a significant span of years.

Defendant says that the lack of any reports of child molestation until he was nearly 50 years old raises serious questions about the viability of his convictions. But defendant was 39 years old in 2009 when he raped a young adult woman. So, the fact remains that defendant committed multiple sex crimes across a span of years, including lewd conduct with children and raping a young woman.

Defendant relies on a dissent written by Justice Mosk in People v. Jones (1990) 51 Cal.3d 294. As the Attorney General notes, that opinion does not have precedential effect. Defendant also relies on People v. Cadena (Aug. 27, 2019, B281175) review denied and opinion ordered nonpublished December 11, 2019, S258791. But that case was depublished by the Supreme Court.[20]

Defendant also relies on In re Rodriguez (1975) 14 Cal.3d 639 (Rodriguez), which held that a 22-year imprisonment for lewd conduct with a child was disproportionate because the “episode” lasted only a few minutes; there was no violence or physical harm to the victim; no weapons were used; and the defendant was only 26 years old at the time of the offense and his conduct was explained in part by his frustrations brought on by intellectual and sexual inadequacy. (Id. at p. 655.)

We acknowledge that many of these factors are applicable to counts five and six in the present case. However, we question the continued vitality of Rodriguez.

In Rodriguez, the court observed that the petitioner “had no history of criminal activity apart from problems associated with his sexual maladjustment. Thus, it appears that neither the circumstances of his offense nor his personal characteristics establish a danger to society sufficient to justify such a prolonged period of imprisonment.” (Rodriguez, supra, 14 Cal.3d at p. 655.) But it is unclear why criminal activity associated with the criminal’s “sexual maladjustment” should be discounted in determining the danger to society. While that perspective may have prevailed in 1975, the Legislature has since acknowledged that some individuals have a propensity to commit sex crimes. (See Evid. Code, § 1108). Given this legally recognized propensity, the fact that a defendant commits crimes due to “sexual maladjustment” does not indicate he is less of a danger to society; and may even indicate he is more of a danger to society.

Moreover, while the Rodriguez court found it pertinent that the lewd conduct caused no physical harm to the victim (Rodriguez, supra, 14 Cal.3d at pp. 654–655), we hasten to add that lewd conduct with a child can nonetheless cause severe and lasting nonphysical harm. Indeed, such crimes “may have lifelong consequences to the well-being of the child.” (People v. Christensen (2014) 229 Cal.App.4th 781, 806.) Often, those consequences are “devastating.” (Ibid.)

Additionally, we wonder why the fact that Rodriguez’s conduct was attributable, in part, to frustrations brought on by “sexual inadequacy” (id. at p. 655) would be a factor in his favor. Criminal conduct often has an underlying explanation, but few of them would render an otherwise permissible punishment cruel and unusual. And frustration brought on by sexual inadequacy is hardly among the most sympathetic explanations for criminal behavior.

In any event, the Rodriguez court relied, in part, on (1) the petitioner having been “only 26 years old” at the time of the offense and (2) his conduct being partially explained by his “limited intelligence.” In contrast, the defendant in the present case was nearly forty years old when he committed the earliest of his crimes. Additionally, defendant has not established that his crimes were committed as a result of limited intelligence. We decline to apply Rodriguez to the present case.

Defendant also points to what he believes are weaknesses in the prosecution’s case. But those points are properly addressed in connection with the instructional and related evidentiary challenges defendant makes above. We are unaware of any principle by which the cruelty or unusualness of a punishment depends on the strength of the evidence underlying the conviction.

Because an objection on cruel-and-unusual-punishment grounds would have been meritless, counsel was not ineffective for not making one.

DISPOSITION

The judgment is affirmed.

POOCHIGIAN, J.

WE CONCUR:

HILL, P. J.

FRANSON, J.

[1] All further statutory references are to the Penal Code unless otherwise stated.

[2] This section recounts Jane Doe 1’s testimony. The acquittal on count 1 indicates the jury apparently rejected some or all of her testimony.

[3] Jane Doe 3 also referred to this as her “middle.” When asked if her “middle part” was the part she used to go to the bathroom, she responded, “Yes.”

[4] Jane Doe 4 testified that she called the “private part” used to go “number one” in the bathroom a “cookie.”

[5] Such evidence must still satisfy Evidence Code section 352 in order to be admissible. (Evid. Code, § 1108, subd. (a).)

[6] Defendant suggests the prosecutor’s argument was improper or incorrect. Not so. The jury is allowed to consider defendant’s commission of one sex crime in determining whether he committed another sex crime. (See Evid. Code, § 1108.)

Defendant characterizes the prosecutor’s argument as referring to “only finding reasonable doubt as to one count, to lead to conviction on the other weak crimes.” That characterization is incorrect. Rather, the prosecutor’s arguments were that a finding that defendant committed one sex crime beyond a reasonable doubt, could constitute part of the evidence used to find defendant committed another sex crime beyond a reasonable doubt.

[7] Consequently, we reject defendant’s claim that the trial court gave the instruction “without any consideration of the relevant Evidence Code section 352 factors” in violation of due process protections.

[8] In his reply brief, defendant cites to testimony that “the case fell through when it was handed to the District Attorney’s Office.” However, this testimony did not identify a reason for the lack of immediate prosecution.

Defendant also cites to argument offered by the prosecutor to the effect that some of the charges were brought earlier because they were subsequently strengthened by propensity evidence. Even assuming the prosecutor’s argument, which is not evidence, is relevant here, it did not indicate that Jane Doe 2’s claims were “flawed.”

[9] A jury’s verdict may not rest solely on the propensity inference. But a jury’s verdict is valid even if the propensity inference was material to the verdict. In other words, the fact that a jury would not have convicted without the propensity evidence does not render admission of the propensity evidence improper.

[10] In his reply brief, defendant apparently challenges the instruction on grounds separate from Evidence Code section 352. He calls the propensity instruction “contradictory.”

Momentarily assuming this contention is not forfeited, we conclude it is meritless. There is nothing contradictory in telling the jury they may accept a propensity inference but that it is only one factor and that each crime must be proven beyond a reasonable doubt.

[11] People v. Marsden (1970) 2 Cal.3d 118.

[12] Because we accept this basis for the trial court’s ruling, we need not determine the propriety of its alternative observation that defendant’s claimed medical condition would not preclude him from having committed the alleged attack.

[13] The absence of discussion on that particular point does not establish ineffective assistance. First, it is unclear whether defense counsel made efforts to contact that particular witness. Second, even if defense counsel made no efforts to locate that witness, the record does not indicate whether that decision was, in part, predicated on the fact that the prosecution had attempted to find the witness, but came to believe she moved to Mexico and could not be located. In other words, it remains entirely possible that defense counsel had reasonably concluded that efforts to locate the witness would not be fruitful to his client’s case.

[14] Defendant cites People v. Stewart (1985) 171 Cal.App.3d 388, which observed that the record in that case did not disclose what the testimony of two witnesses would have been if they had been called at trial. (Id. at p. 398.) In our view, that factor weighs against the defendant who, as the appellant, has the burden of affirmatively establishing error. To the extent Stewart suggests otherwise, we disagree with it.

[15] We do not address any of the contentions defendant made for the first time in his reply brief or predicated on exhibits defendant failed to have transmitted to this court. (See Cal. Rules of Court, rules 8.320(e) & 8.224.)

[16] Miranda v. Arizona (1966) 384 U.S. 436.

[17] The transcript reads, “Mr. Venable’s home” rather than “defendant’s home.” However, context makes it clear that this was a transcription error or a misstatement.

[18] Defendant was actually 49 years old at the time of sentencing.

[19] Defendant cites People v. Scott (1994) 9 Cal.4th 331, 353, for the proposition that the forfeiture rule only applies to discretionary sentencing choices. That citation simply does not support defendant’s assertion.

[20] The case was depublished well before defendant filed his opening brief. Counsel must take care not to cite depublished cases.