Filed 10/12/17 P. v. Rodriguez-Martinez CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

A jury found Loren Rodriguez-Martinez guilty of committing a lewd act upon a child under the age of 14 years (Pen. Code, § 288, subd. (a)),[1] and found true the allegation of substantial sexual conduct (§ 1203.066, subd. (a)(8)). The court sentenced Rodriguez-Martinez to a prison term of eight years.

Rodriguez-Martinez appeals. He contends his trial counsel was ineffective by failing to object to: (1) questions about a witness’s age; and (2) the prosecutor’s closing argument that Rodriguez-Martinez had a propensity to commit the charged offense. Rodriguez-Martinez also argues the court abused its discretion in sentencing him to the upper term of eight years in prison.

We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

We summarize the facts relevant to the issues on appeal. We provide additional factual and procedural details in the discussion of Rodriguez-Martinez’s specific claims.

The prosecution charged Rodriguez-Martinez with committing a lewd act upon a child under the age of 14 years. (§ 288, subd. (a).) It was further alleged that Rodriguez-Martinez engaged in substantial sexual conduct. (§ 1203.066, subd. (a)(8).) The 13-year-old victim testified Rodriguez-Martinez put his fingers in her vagina. Rodriguez-Martinez did not deny doing so, but claimed to have no recollection of the incident. His defense was that he was unconscious or sleepwalking.

A. Prosecution Evidence

1. Shannon P.’s Testimony[2]

Shannon P. is the mother of Kimberly, the victim in this case. Shannon P. and Rodriguez-Martinez became a couple in 2010. They used methamphetamine together, but, after a heart attack in 2014, Rodriguez-Martinez stopped using the drug, and had to wear an external defibrillator at all times.

When Shannon P. and Rodriguez-Martinez started dating, Kimberly was about nine years old. Kimberly and Rodriguez-Martinez were very close and had a positive relationship. Rodriguez-Martinez was “the better parent,” and he was effective at talking to Kimberly when Shannon P. would “fly off the handle.” He looked out for Kimberly’s safety. There was one time when Rodriguez-Martinez made a comment to Kimberly, or “patted her on the butt or something,” but Shannon P. talked to Rodriguez-Martinez about it, and he said he did not mean anything by it.

In August 2014, Shannon P., her daughter, and Rodriguez-Martinez were living in a motel. The motel room consisted of two beds: Kimberly slept in one of them, and Shannon P. and Rodriguez-Martinez slept in the other. On the morning of August 4, 2014, Shannon P. left the motel room to go to work. Rodriguez-Martinez was very tired, and he did not want to get up, but he had promised Kimberly he would take her to the mall to buy a dress.

Later that day, Kimberly called her mother. Kimberly was upset, and she asked her mother to come home, but Shannon P. could not leave work. Kimberly did not want to explain by telephone why she was upset. Later the same day, Kimberly called her mother again. Kimberly told her mother she was with her older sister, Harley.

Kimberly told Shannon P. not to bring Rodriguez-Martinez to Harley’s residence, but Shannon P. did so anyway. In the car, Rodriguez-Martinez said he might know why Kimberly was upset. He said he had fallen asleep rubbing Kimberly’s feet, and, when he woke up, his hand was on her thigh. The incident made Rodriguez-Martinez uncomfortable, but he did not remember anything else. Rodriguez-Martinez seemed “very tired and very lethargic.”

With regard to the accusation Rodriguez-Martinez committed a lewd act upon Kimberly, Shannon P. did not believe Rodriguez-Martinez’s act was conscious or intentional. Shannon P. was herself molested for four years as a child. She did not view Rodriguez-Martinez as “a sexual predator,” but she accepted she could be wrong about what occurred.

After the incident with Kimberly, Rodriguez-Martinez went to jail, child protective services became involved, and Kimberly went to live with Shannon P.’s cousin for about nine months. At the time of her testimony, Shannon P. had been clean and sober for 18 months. Kimberly had started high school, but was “stressed out” by its challenges. Kimberly experienced panic attacks due to this court case, and because of her recent break up with her first boyfriend. Earlier in the day, Kimberly suffered a panic attack, and refused to come to court with her mother.

2. Kimberly’s Testimony

On August 4, 2014, Kimberly was 13 years old. After she and Rodriguez-Martinez drove Shannon P. to work, they went to a mall to buy a dress. Once they bought a dress, they got breakfast, took the food back to the motel, and watched television.

Kimberly was on her bed, and Rodriguez-Martinez was on his. Kimberly was tired and wanted to go to sleep. She asked Rodriguez-Martinez to rub her feet. It was common for Rodriguez-Martinez to do so because her feet were often sore from playing sports.

Kimberly was covered by a sheet, and wore “volleyball spandex” shorts, a tank top, and she thought she was wearing underwear. Kimberly was laying on her bed, with her feet on Rodriguez-Martinez’s bed. Her leg was sticking out from the sheet. Rodriguez-Martinez was leaning against his bed frame, propped up by a few pillows. It was common for Rodriguez-Martinez to sleep “halfway sitting up” because of his heart problems. Kimberly fell asleep.

When she woke up, Rodriguez-Martinez was on his knees on the ground with his fingers moving in and out of her vagina. Rodriguez-Martinez’s hand was up the leg of her shorts. His fingers were moving slowly. Kimberly’s whole body was on her bed, but she did not think the sheet was covering her. About three seconds after she realized what was going on, Kimberly “scooted away” from Rodriguez-Martinez. Rodriguez-Martinez got up from his knees, and went back to his bed. Kimberly did not see Rodriguez-Martinez’s face, and he did not say anything. Rodriguez-Martinez seemed “zoned out” that day, and looked tired.

Kimberly went to the bathroom. Kimberly’s sister, Harley, stopped by to drop off some clothes. Kimberly begged to leave with her, but Harley refused. Kimberly got dressed and went to the vending machines to get food. Kimberly called her mother, and told her she needed to talk to her, but her mother could not come home immediately.

Kimberly called Harley and arranged to meet her. Kimberly told her sister what happened, and Harley got mad. Harley and her boyfriend told Kimberly to get the police involved, but Kimberly felt embarrassed. Kimberly called her mother again, and told her not to bring Rodriguez-Martinez, but her mother did so, which made Harley really mad.

While Kimberly was inside Harley’s residence, she could see her sister and mother arguing outside. Harley was in tears. Harley dragged Kimberly outside. Kimberly’s mother was confused. Harley screamed that Rodriguez-Martinez touched Kimberly, and Rodriguez-Martinez yelled “[b]ull shit” from the car.

Prior to this incident, there were “countless” times when Rodriguez-Martinez made Kimberly feel uncomfortable by telling her she was developing nicely, and he would “spank my butt.” Kimberly told him to stop. On one occasion, Kimberly’s mother also told him to stop. Kimberly felt ashamed and embarrassed by Rodriguez-Martinez’s comments. Kimberly and Rodriguez-Martinez never fell asleep together on the same bed.

Kimberly regarded Rodriguez-Martinez as her father. Her biological father was never there for her, but Rodriguez-Martinez walked her to school, and if there was not enough money to buy food for everyone, he would get food for the children first. Rodriguez-Martinez never hit Kimberly. When Shannon P. hit her, Rodriguez-Martinez told Shannon P. not to do so. Kimberly did not want to testify against Rodriguez-Martinez because it made her emotional and she suffered from panic attacks. Kimberly did not want to get the police involved because she was embarrassed others would learn about the incident.

3. The Investigation

On August 4, 2014, Sergeant Summer Black of the Santa Rosa Police Department was dispatched to the residence where Harley was living to investigate a possible sexual assault. Kimberly was hysterical and crying. Kimberly told Sergeant Black her mother’s boyfriend put his fingers in her vagina. Shannon P. told Sergeant Black that something happened between Rodriguez-Martinez and Kimberly, and that Rodriguez-Martinez had told her he accidentally touched her thigh. Rodriguez-Martinez was placed under arrest not as a result of this investigation, but based on an outstanding warrant.

The following day, Joan Risse, a sexual assault nurse for the County of Sonoma, examined Kimberly. Kimberly told the nurse that when Rodriguez-Martinez touched her, it hurt a little. The nurse found a small linear laceration near the entry area of Kimberly’s vagina. The tear was caused by blunt force trauma, and was “consistent with a finger digital penetration.”

B. Defense Evidence

1. Sleep-Related Incidents

A number of witnesses testified regarding sleep-related incidents involving Rodriguez-Martinez or members of his family. Hugo P. was Rodriguez-Martinez’s cellmate in jail for over two months during the prior year. Hugo P. slept on the top bunk, with Rodriguez-Martinez underneath. Rodriguez-Martinez woke up every hour or so, and it sounded like he was snoring loudly, or choking, and gasping for air. During the night, Hugo P.’s sleep was interrupted by noises. When Hugo P. confronted Rodriguez-Martinez about it, he denied he was doing anything.

Eric A. had known Rodriguez-Martinez for about five or six years. Rodriguez-Martinez, Shannon P., and Kimberly lived with Eric A. for about six months, sleeping on reclining furniture and an air mattress in Eric A.’s living room. A couple of months before the incident with Kimberly, when Eric A. was walking through the living room around 3:00 a.m., he noticed Rodriguez-Martinez sitting on the edge of the air mattress masturbating, while Shannon P. and Kimberly were sleeping. It was an awkward situation, so Eric A. made a joke about it, and continued walking. Rodriguez-Martinez did not respond, and continued masturbating. He seemed to be “in a different place,” and Eric A. felt like he “was not really there.” Later that morning, Eric A. mentioned what occurred, and Rodriguez-Martinez thought he was joking. Rodriguez-Martinez did not deny what happened, took Eric A.’s word for it, and apologized.

Rodriguez-Martinez’s younger sister, Darlene M., testified regarding sleep-related incidents involving other family members, including their grandmother, mother, and father. On several occasions, Darlene M. observed Rodriguez-Martinez sleepwalking from his bedroom to the kitchen. When Rodriguez-Martinez was about 17 years old, he sleepwalked into the living room and urinated on the stereo.

Jolene G. had known Rodriguez-Martinez for eleven years. Rodriguez-Martinez helped Jolene G. during a tough time in her life. Jolene G. was the victim of a sexual crime. The perpetrator was trying to kill her, but Rodriguez-Martinez protected her. She described Rodriguez-Martinez as her “bodyguard.” After about three years, they became romantically involved, which was a relationship Jolene G. pursued. They were together for a couple of years.

During that time, Jolene G. noticed Rodriguez-Martinez had “really bad sleep apnea,” and often stopped breathing while asleep. Once, when they were camping, Rodriguez-Martinez stopped breathing for so long that Jolene G. slapped him on the face repeatedly until he woke up. The next morning, Rodriguez-Martinez asked for a cigarette, and he began smoking it, but then he was startled, and had no recollection of asking for it. While camping, they used methamphetamine, and they may have consumed alcohol.

Both Jolene G. and her mother were concerned about Rodriguez-Martinez’s sleep apnea, but he did not obtain medical treatment for it. Jolene G. and Rodriguez-Martinez had a child together who is now nine years old. Their son suffered from “night frights.” Jolene G. did not seek medical treatment for her son’s sleep issues. Jolene G. was surprised to learn Rodriguez-Martinez inappropriately touched a child. While asleep, Rodriguez-Martinez never attempted to have sex with Jolene G.

2. Expert Witness Testimony

A psychologist and board-certified sleep specialist, Mark Pressman, Ph.D., testified on behalf of Rodriguez-Martinez. Dr. Pressman explained that a “parasomnia,” or in other words, sleepwalking, can occur when a person starts to wake up, “but doesn’t make it all the way to wakefulness,” and engages in behavior while in this “very odd state of consciousness.” The behavior can include sex. According to Dr. Pressman, there is no proof sexual behavior in sleep occurs while in this state, but “the best theory we have right now” is that sex can occur while sleepwalking because the part of the brain that controls primitive urges is not functioning.

Dr. Pressman diagnoses whether a person has experienced a parasomnia based on the history provided by family and friends. Dr. Pressman looks for the “three P’s”: predisposition, priming, and provocation. Predisposition means it often “runs in families.” Priming means “there’s sleep deprivation and stress.” Provocation means there is usually a trigger that sets the event in motion. Snoring due to sleep apnea can be the trigger that wakes the brain and provokes sleepwalking. Dr. Pressman diagnosed Rodriguez-Martinez with sleep apnea, but the diagnosis was not based on medical records.

On direct examination, Dr. Pressman opined it was consistent with parasomnia for inappropriate touching to occur where, in defense counsel’s words, “there has been some touching, a massage, the person has a history of sleepwalking and a family history of sleepwalking, sleep deprivation, sleep apnea, [and] congestive heart failure.” According to Dr. Pressmen, “the most likely theory of this episode” is that Rodriguez-Martinez fell asleep while massaging Kimberly’s foot “and sleep-related behavior started from there.” Dr. Pressman acknowledged there are no tests to determine the existence of a parasomnia.

A clinical and forensic psychologist, Sylvia Shirikian, Ph.D., also testified on behalf of Rodriguez-Martinez. She administered a number of personality tests, and concluded Rodriguez-Martinez “did not meet the personality profile that we typically see for one who has committed sexual offenses.” She found no evidence of sexual deviance in Rodriguez-Martinez. Dr. Shirikian’s tests revealed “[s]light elevations in symptom exaggeration” and Rodriguez-Martinez tended to present himself as “more favorable than what may be true.” When Dr. Shirikian interviewed Rodriguez-Martinez, he did not admit playfully hitting Kimberly’s bottom. Instead, he stated it was for discipline.

3. Rodriguez-Martinez’s Testimony

Rodriguez-Martinez was 59 years old at the time of the incident with Kimberly. Rodriguez-Martinez and Shannon P. lacked money, but Kimberly “kept everything together.” Shannon P. was not “a very good mother at that time.” She would hit Kimberly, but Rodriguez-Martinez put a stop to it. Rodriguez-Martinez assumed a parental role toward Kimberly. He made sure she did her homework, took her to school, picked her up, made her meals, and did her laundry. Rodriguez-Martinez escorted Kimberly everywhere because she was not allowed to walk the street by herself.

During his relationship with Shannon P., Rodriguez-Martinez’s drug use became severe, but stopped when he had a heart attack in June or July of 2014. Afterwards, Rodriguez-Martinez wore an external defibrillator. Rodriguez-Martinez slept most of the day in one hour increments. He used drugs once or twice after his heart attack, a couple of days before the incident with Kimberly.

On August 4, 2014, Rodriguez-Martinez did not sleep well the night before and had “very low energy.” Rodriguez-Martinez took Shannon P. to work, and then he and Kimberly went to buy a dress and got something to eat. They returned to the motel room and finished eating. Kimberly tried on the dress to show it to Rodriguez-Martinez.

Rodriguez-Martinez did not remember much after that. He woke up in the same bed as Kimberly, with his hand on her left thigh, and it scared him. Rodriguez-Martinez initially thought he was with Shannon P. and “was shocked.” Kimberly was asleep, so Rodriguez-Martinez did not think it was a big issue, and he went back to sleep. Rodriguez-Martinez had no explanation for why Kimberly testified she was not in Rodriguez-Martinez’s bed that day.

Rodriguez-Martinez did not recall touching Kimberly inappropriately. He believed Kimberly would not lie about it, and he assumed she was telling the truth. When Harley accused him of putting his fingers inside Kimberly, Rodriguez-Martinez screamed “bull shit,” because all he remembered was having his hand on Kimberly’s thigh.

Rodriguez-Martinez acknowledged it was “a poor choice of words” for him to tell Kimberly she was “coming along nicely.” Rodriguez-Martinez never raised girls before. When Shannon P. told him the comment was not appropriate, he made an effort to abide by her wishes. Rodriguez-Martinez claimed he would never knowingly touch Kimberly inappropriately in her genital area.

Rodriguez-Martinez met Jolene G. a couple of years after she was the victim of a serious sex crime which occurred around 2000. When he first met Jolene G., she was 17. Rodriguez-Martinez assumed the role of her caretaker and bodyguard. When she was 19 years old, they became romantically involved, and their son was born when she was 20. Rodriguez-Martinez was 49 or 50 at the time.

Rodriguez-Martinez had no memory of the masturbation incident described by Eric A., but he was embarrassed about it, and apologized for it. There were other times when Rodriguez-Martinez was told he did something strange of which he had no memory.

4. Verdict and Sentence

A jury found Rodriguez-Martinez guilty of committing a lewd act upon Kimberly, who was under the age of 14 years. (§ 288, subd. (a).) The jury found true the allegation he engaged in substantial sexual conduct. (§ 1203.066, subd. (a)(8).) The court sentenced Rodriguez-Martinez to a prison term of eight years.

DISCUSSION

I.

Rodriguez-Martinez Cannot Establish Ineffective Assistance of Counsel

Rodriguez-Martinez argues his trial counsel was ineffective by failing to object to questions about Jolene G.’s age, and by failing to object to the prosecutor’s argument that Rodriguez-Martinez’s relationship with Jolene G. demonstrated a propensity to commit the charged offense. We begin with a review of the relevant testimony and the prosecutor’s closing argument.

1. Cross-Examination Testimony

During the prosecutor’s cross-examination of Rodriguez-Martinez, the following exchange occurred:

“Q. Okay. And when you first met Ms. [G.], how was it that you did that?

“A. She’s a friend of mine -- a friend of mine had introduced me to her.

“Q. How old was Ms. [G.] when you first met her?

“A. When I first met her, I believe she was 17.

“Q. And you, at that time, due to her boyfriend’s inability, assumed the role of sort of her caretaker and bodyguard is what she called it, right?

“A. Yes.

“Q. And that went on for a couple of years?

“A. Couple of years.

“Q. And then, after a couple of years is when you became romantically involved --

“A. Yes.

“Q. -- with her. So that would be when she was, approximately, 19 years old?

“A. Nineteen.

“Q. And how old was Ms. [G.] when your son was born?

“A. When she what?

“Q. When your son was born?

“A. She was 20, I believe.

“Q. How old were you at that time?

MR. RAFF: Objection. Relevance.

THE COURT: Overruled.

You may answer.

THE WITNESS: Forty-nine, 50.”

As this testimony demonstrates, while Rodriguez-Martinez’s trial counsel did object to the question about Rodriguez-Martinez’s age at the time of his relationship with Jolene G., Rodriguez-Martinez contends his counsel should have objected earlier, when the prosecutor asked questions about Jolene G.’s age. Rodriguez-Martinez contends these questions were beyond the scope of the direct examination, and that they sought to elicit irrelevant testimony, or testimony inadmissible under Evidence Code sections 352, 1101, or 1108. Rodriguez-Martinez makes similar arguments regarding defense counsel’s failure to object during the prosecutor’s closing argument.

2. The Prosecutor’s Closing Argument

In her closing argument, the prosecutor began by reviewing the evidence in support of the elements of the crime. Then, the prosecutor turned to the argument Rodriguez-Martinez was sleepwalking or unconscious when he digitally penetrated Kimberly’s vagina. The prosecutor argued as follows:

“The thought that the defendant was unconscious when he took part in this calculated, deliberate behavior is unreasonable and offends common sense.

[¶] . . .[¶]

One thing to consider is the defendant’s relationship with Kimberly. You heard from the defendant. You heard from Kimberly. They were very close. They spent a lot of time together. He took care of her. He took her shopping. He bought her dresses. He took her to get her nails done. They did everything together.

The defendant told you about his relationship and Shannon’s, that they were sort of a mess. But that Kimberly is what held them together. Kimberly was the most responsible, mature person in that family. And the defendant knew it. And he saw her that way. He didn’t see her as a child. And that can explain why when you heard from Dr. Shirikian that he doesn’t show any signs of being sexually deviant, it’s because, in his head, he’s not directing any behavior toward a child. He’s directing behavior toward an equal.

He’s commenting on Kimberly’s body, her development. . . .

[¶] . . .[¶]

The defendant never saw Kimberly as a child. He saw her as a partner. He saw her as an equal. But she wasn’t. She was a young, vulnerable girl, with no father in the picture, with a mom who is doing drugs and choosing her boyfriend over her, and she needed somebody. And the defendant was there for her.

And she wasn’t the first. You heard from Jolene [G.] You heard about how the defendant met Jolene [G.] when she was 17 years old. It was a few years after Jolene [G.] had been the victim of a very serious criminal offense, herself. She was a young, vulnerable crime victim, had a boyfriend that couldn’t take care of her, didn’t hear about any parents in the picture. She had the defendant as her bodyguard. He was her bodyguard for a couple of years, starting when she was 17 years old. By the time she was 20, she had given birth to his son. When she gave birth to his son, he was 30 years older than her. And he was supposed to be taking care of her.

You heard that throughout his relationship with Jolene [G.], he was abusing alcohol and methamphetamine, but there was no indication that at any point during that relationship, during the conception of that child, he was unconscious.

MR. RAFF: Objection. There was no evidence regarding alcohol.

THE COURT: Sustained.

MR. RAFF: May I have an admonishment, please?

THE COURT: Ladies and gentlemen of the Jury, you’re to decide the facts in this case. This is just argument.

Counsel, you may proceed.”

The prosecutor noted Rodriguez-Martinez had “unusual relationships with young ladies,” before moving on to attack the expert witness’s opinion that Rodriguez-Martinez may have experienced a parasomnia.

After the prosecutor finished her closing argument, and out of the presence of the jury, the court addressed the attorneys:

Essentially, what the Court saw happen, you know, there was never a motion in limine on any propensity evidence or 1101(b) evidence, but that evidence came in nevertheless, mainly through the defense witness, through additional questions brought out by the People on cross-examination. But it was argued to the jury.

Now, the propensity evidence instruction is not something that I have to give sue sponte at this late juncture to talk about it. I just wanted to have a record of it. And, basically, what the People were arguing that 261.5(a) (c) was committed, and that that was a crime they should consider in deciding his guilt today.

So let me hear from the defense, what, if anything, you want the Court to do. I can understand there may be some tactical reasons not to want to ring the bell additionally by giving additional instructions at this juncture.

Defense counsel?

MR. RAFF: I did think of objecting at that point, however, did not. I’m not familiar just off hand with a cautionary instruction regarding character evidence. But I would like to take a look at that . . . .

Defense counsel reviewed the CALCRIM instruction associated with Evidence Code section 1108, subdivision (a), and the instruction associated with the crime of unlawful sexual intercourse with a person under the age of 18 (§ 261.5), and decided not to request additional instructions.

3. Rodriguez-Martinez Fails to Demonstrate He Was Prejudiced by Counsel’s Failure to Object

Rodriguez-Martinez argues his trial counsel was ineffective by failing to object to the questions about Jolene G.’s age or to the argument he claims suggested Rodriguez-Martinez’s relationship with Jolene G. demonstrated a propensity to commit the charged offense. The Attorney General disagrees, arguing this evidence was admissible to rebut Rodriguez-Martinez’s evidence of good character, and that the record suggests trial counsel chose not to object for strategic reasons. Assuming without deciding counsel’s representation was deficient for failing to object, Rodriguez-Martinez cannot show prejudice.

To prevail on a claim of ineffective assistance of counsel, defendant “must establish not only deficient performance, i.e., representation below an objective standard of reasonableness, but also resultant prejudice.” (People v. Bolin (1998) 18 Cal.4th 297, 333.) A defendant suffers prejudice if there is “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Strickland v. Washington (1984) 466 U.S. 668, 694.) A “ ‘ “ ‘reasonable probability is defined as one that undermines confidence in the verdict.’ ” ’ ” (People v. Carrasco (2014) 59 Cal.4th 924, 982.) We “ ‘need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed.’ ” (Ibid.)

In arguing prejudice, Rodriguez-Martinez claims that “[w]ithout the inadmissible testimony, the prosecution only had appellant’s word and the un-rebutted expert testimony.” He contends “Kimberly offered no testimony which assisted in proving that appellant was awake and conscious during the incident. Instead, she testified that she did not look at appellant’s face and he did not say anything after the incident.” Rodriguez-Martinez argues that, without the inadmissible evidence and improper argument, “there is a reasonable probability . . . at least one juror would have likely been more inclined to accept appellant’s unrebutted defense of unconsciousness and sleepwalking.”

We are not persuaded. Assuming, without deciding, that defense counsel should have objected in the ways Rodriguez-Martinez proposes, it is not reasonably probable the result would have been different. Here, the victim’s testimony was detailed and specific, and difficult to reconcile with the argument Rodriguez-Martinez was unconscious when he digitally penetrated her vagina. Rodriguez-Martinez does not challenge the court’s instruction to the jury that a conviction of a sexual assault crime may be based on the testimony of a complaining witness alone.

Kimberly testified she fell asleep while she and Rodriguez-Martinez were on separate beds, with Rodriguez-Martinez massaging her foot, and, when she woke up, Rodriguez-Martinez was on his knees on the ground with his fingers moving in and out of her vagina. Kimberly was wearing volleyball spandex shorts, she thinks she was wearing underwear, and Rodriguez-Martinez’s hand was up the leg of her shorts. Kimberly “scooted away” from Rodriguez-Martinez, who got up from the ground, and went back to his bed. Before she fell asleep she was covered with a sheet, but, when she woke up, she did not think the sheet was on her. Prior to this incident, there were “countless” occasions when Rodriguez-Martinez made her feel uncomfortable by making inappropriate comments or spanking her bottom.

The nurse examiner’s testimony regarding a small laceration close to the entry to Kimberly’s vagina confirmed the incident occurred. The only question, then, was whether Rodriguez-Martinez was conscious when it occurred. Dr. Pressman opined it was possible he was unconscious, but “[t]he jury is not required to accept an expert’s opinion. The final resolution of the facts at issue resides with the jury alone.” (People v. Sanchez (2016) 63 Cal.4th 665, 675.) Dr. Pressman acknowledged there are no tests to determine whether a parasomnia occurred. Based on Kimberly’s testimony in particular, Rodriguez-Martinez has not demonstrated a reasonable probability the jury would not have convicted him if trial counsel had objected to the questions about Jolene G.’s age or the prosecutor’s argument regarding his propensity to commit the charged offense.

Furthermore, we disagree with Rodriguez-Martinez’s contention the prosecutor’s closing argument insinuated he was “a pedophile.” Rodriguez-Martinez relies on the prosecutor’s reference, in another part of her closing argument, to Jolene G. as a “girl,” but that statement was made in the context of attacking her credibility as a witness. Rodriguez-Martinez’s inability to establish prejudice based on trial counsel’s failure to object is fatal to his ineffective assistance of counsel claim. (People v. Boyette (2002) 29 Cal.4th 381, 430-431 [appellate court need not determine whether counsel’s performance was deficient if there was no prejudice].)

II.

Rodriguez-Martinez Forfeited His Challenge to His Sentence

Rodriguez-Martinez’s final argument is that the court abused its discretion by sentencing him to the upper term of eight years in prison. This argument is forfeited and cannot be raised on appeal.

1. The Sentencing Hearing

At the sentencing hearing, the prosecutor requested “the aggravated sentence” based on Rodriguez-Martinez’s violation of his position of trust with Kimberly, his failure to take responsibility for his conduct, his manipulation of the victim, and his criminal history. Defense counsel requested “the mitigating term” arguing Rodriguez-Martinez’s physical condition—congestive heart failure—reduced his culpability, he had no similar offenses in the past, this conduct was out of character, there was a low risk he would reoffend, and he was remorseful. Rodriguez-Martinez stated he was extremely sorry for what happened, and realized he had harmed Kimberly.

In sentencing Rodriguez-Martinez, the court considered aggravating factors, noting Rodriguez-Martinez had a history of convictions for drug-related offenses, this conviction was more serious, he took advantage of a position of trust and confidence, he served a prison term for one of his prior convictions, and he was on a conditional sentence when this incident occurred. In mitigation, the court considered Rodriguez-Martinez’s health challenges, and his prior satisfactory performance on federal parole, probation, and during a conditional sentence. Finding “[t]he factors in aggravation based on your criminal history alone far outweigh those in mitigation,” the court sentenced Rodriguez-Martinez to a term of eight years in prison. Later, the court asked: “Anything further from either party?” Both the prosecutor and defense counsel responded “no.”

2. Rodriguez-Martinez Forfeited His Challenge to His Sentence

Rodriguez-Martinez contends that, based on the “numerous mitigating factors,” he should have been sentenced to the low or middle term. This argument is forfeited. “A party in a criminal case may not, on appeal, raise ‘claims involving the trial court’s failure to properly make or articulate its discretionary sentencing choices’ if the party did not object to the sentence at trial.” (People v. Gonzalez (2003) 31 Cal.4th 745, 751 (Gonzalez), quoting People v. Scott (1994) 9 Cal.4th 331, 353.) “[A] defendant cannot remain mute while the trial court states its reasons for imposing a sentence and then on appeal claim that its statement of reasons was defective.” (People v. Sperling (2017) 12 Cal.App.5th 1094, 1101.)

In his reply brief, Rodriguez-Martinez contends his argument is not forfeited because “counsel filed a sentencing brief requesting that the court impose the mitigated term,” and “at the sentencing hearing, counsel argued that, in light of the mitigating factors, appellant should receive the middle term.” But the issue is not what Rodriguez-Martinez requested before the court stated its reasons for imposing the sentence. Instead, “the Scott rule applies when the trial court ‘clearly apprise[s]’ the parties ‘of the sentence the court intends to impose and the reasons that support any discretionary choices’ [citation], and gives the parties a chance to seek ‘clarification or change’ [citation] by objecting to errors in the sentence.” (Gonzalez, supra, 31 Cal.4th at p. 752.) After sentencing Rodriguez-Martinez, the court provided an opportunity to object, and defense counsel did not do so. Therefore, the argument is forfeited.

Even if the argument was not forfeited, we would have little difficulty rejecting it. As Rodriguez-Martinez acknowledges, “a single aggravating factor may be sufficient to justify the imposition of the upper term.” Circumstances in aggravation include “[t]he victim was particularly vulnerable,” “[t]he defendant took advantage of a position of trust or confidence to commit the offense,” and “[t]he defendant has served a prior term in prison or county jail.” (Cal. Rules of Court, rule 4.421(a)(3), (a)(11) & (b)(3).) Before sentencing Rodriguez-Martinez, the court considered each of these factors, as well as some in mitigation. Any one of the aggravating factors was sufficient to impose the upper term. (People v. Black (2007) 41 Cal.4th 799, 813.) There was no abuse of discretion in sentencing Rodriguez-Martinez to eight years in prison.

III.

DISPOSITION

The judgment is affirmed.

_________________________

Jones, P. J.

We concur:

_________________________

Simons, J.

_________________________

Needham, J.

A149548