Filed 5/16/ 16 P. v. Tate CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT
THE PEOPLE, Plaintiff and Respondent,

v.
JASON PAUL TATE, Defendant and Appellant. H040063 (Santa Clara County Super. Ct. No. 212169)

A jury found defendant Jason Paul Tate guilty of committing two lewd acts on a child under 14. (Pen. Code, § 288, subd. (a).) Defendant was sentenced to a 10

- year prison term, with execution of that sentence suspended and f ormal probation imposed

. On appeal, defendant challenges the trial court’s ruling excluding evidence that the victim’s younger niece had made sexual assault allegations against him , and the prosecutor’s decision to withdraw those charges from the grand ju ry’s consideration
based on the niece ’s poor and contradicted grand jury testimony. Defendant also claims ineffective assistance of counsel at sentencing. Finding no error, we will affirm.

I. BACKGROUND
Olivia Doe 1 was molested twice by defendant. The first molest ation occurred
when she was six or seven years old

. She was in second grade and living in Salinas with
her older sister who was her legal guardian, Grace Doe . She also lived with Grace’s

1 We use pseudonyms to protect the victims’ identities from disclosure.2

daughter Yvonne Doe , four years her junior, and defendant, who was Grace’s boyfriend.
T he second molestation occurred in 2011 when Olivia was 12 and in seventh grade

. By that time the family had grown to include Grace’s and defendant’s two sons, born in 2007
and 2009.
Olivia di sclosed the molestations to Grace on June 23, 2011 , after Yvonne told
Olivia that defendant had molested her. Yvonne also told her mother that she had been sexually molested by defendant. Both girls were interviewed that night by a responding detective, and both were interviewed by a female detective one week later

. The
interviews were recorded and transcribed. Both girls underwent sexual assault examinations on July 18, 2011.

I I
. TRIAL COURT PROCEEDINGS
A. G RAND J URY P ROCEEDINGS
In March 2 012 the cases were presented to a grand jury. Olivia , then 13 , testified
to two instances of lewd conduct by defendant consistent with her statements to the police, and the grand jury returned a two

- count indictment based on her testimony

. Nine

- year

- ol d Yvonne testified that she was touched by defendant in an

u ncomfortable way in second grade. Whe n asked to tell the grand jury what happened, she said “I’v e tried my best to forget. [ I ] t’s going to be hard for me to remember.” She said defendant’s hands and lips touched her body but she could not remember what part of her body. She said “ [ a ] ll I know is it happened when I was in the second grade. ” She remembered both police inte rviews and said she told the truth both times, but she could

not remem

ber what she said

. Yvonne testified that defendant touched her in a bad way the day the polic e came to her house, but she could not recall anything specific. Defendant had touched her breasts and butt inside her clothes but not on the day the police ca me. D efendant had touched her breasts, butt and front private in the bathroom more than once. That touching had happened 20 to 25 times , but she either could not recall or could not3

describe any incident with specificity

. She repeatedly said she could n o longer recall

events

. D efendant “might have” rubbed his front privates all over her body , but she
could not remember. Yvonne denied or could not recall making statements to the police about kissing or contact with defendant’s genital s, and she denied or could not recall
whether that contact had occurred

. S he declined to read a statement she had written at
her second interview , stating it was sloppy and she cou ld not see well. She testified that defendant was always mean and strict, and he was the main reason she always got in
trouble.
Grace testified that Yvonne told her on June 23 , 2011 that defendant had molested
her that day on the couch. He made her get naked on top of him and kiss him on the mouth, and he rubbed her bottom and her privat e part. The responding detective testified
that Yvonne told him defendant had reached into her pants and touched her butt and vagina that day while she was on the computer. Defendant brought her into his bedroom, where he made her take off her clothes, k issed her, and rubbed his penis all over her.
Yvonne told the responding detective something like that had occurred 50 or 60 times. She said defendant had made her suck his penis and w hite stuff would come out , and that
had happened between five and seve n times, most recently about a month before the
interview.
Yvonne told the female detective that she was first molested by defendant when she was in first grade. She would not verbalize what happened , but she wrote that
d efendant made her kiss him and suck his wee

- wee in the bathroom. She described dropping to her knees when defendant grabbed her head , and said defendant told her he would beat her with a belt if she did not comply. She said this happened again and again for about four months, then she corrected herself and said four weeks. She said defendant never touched her butt, but he stuck his hand into her vagina, then she said i t was a finger. She said defendant placed his penis hard against her vagina several times. The detective told her it was important to be clear, and she said “I just can’t remember4

that much.” The detective told her if she did not remember , to say she did not remember, not to make things up. She responded “I can’t remember too much.” She said defendant
had never threatened her, and when pressed she said “none [no threats] that I recall.”
Yvonne told the SART examiner “He touches me in w eird places,” and “He kisse d
me and touche d me with his hands.” 2 At the close of evidence, the prosecutor decided not to seek a true bill for the conduct involving Yvonne

. She explained her decision to the grand jury : “I have
decided not to seek an in dictment for the conduct involving [Yvonne] . And that is based on the nature and quality of [ Yvonne ’s] testimony at this hearing and her prior statements, which you heard in the form of testimony. [ ¶ ] The standard at a grand jury is probable cause. But , in fact, we seek to present cases for which there is evidence and proof beyond a reasonable doubt. That is our standard for conviction at trial. [ ¶ ] So, based on the state of the evidence, I’m not seeking an indictment

-- any indictment for the
conduc t testified to by [Yvonne] Doe.”
B. T RIAL 1. The Prosecution’s Case

a . Olivia ’s t estimony
Olivia testified that defendant entered her bedroom at night when she was in second grade living in Salinas. She woke up but pretended to be asleep. Defendant touched her shoulder and she rolled from her back to her stomach. Defendant pulled down her pajama s and underwear, and he touched , kissed, and licked her bottom. She
did not speak because she was scared. On direct examination Olivia did not remember

te lling the female detective that defendant put his finger in her bottom, but on redirect, presented with her prior statements , she testified that his finger did go inside her bottom

. When she was in the seventh grade, around the time of the earthquake in J apan (March

2 The exam revealed no evidence of penetrating contact.5

11, 2011) she told her best friend Pauline that defendant had touched her when she lived
in Salinas and that he was her biggest fear because she was afraid he would do it again

. She described the touching to Pauline as rape, which at that time she thought was the

same as molestation.
D efendant touched Olivia again in bed when she was in the seventh grade. She had just awakened when d efendant lay down beside her, touched her chest and stomach
over her T

- shirt, and said “ [Olivia] , I know you are awake.” He said “I’m sorry,” kissed her mouth, lifted and spread her legs, and kissed her vagina over her underwear. She was scared, cried, and told him to stop. On June 23, 2011, Olivia told Grace that defendant had touched her. Her disclosure was prompted by a note she had received from Yvonne that afternoon that scared and upset her. Olivia was still upset when Grace came home, and Olivia was forthcoming and cried when Grace asked her what was wrong.

b
. Grace ’s t estimony
Grace ’s relationship with defendant began in 2003 and ended on June 23, 2011 , when Olivia made her disclosure . The two regularly argued, and at times restraining orders prevented defendant from contacting Grace

. They argued on M arch 22 , 2011 in defendant’s car on Blossom Hill Road

. Defendant eventually pulled over, Grace got out of the car , and defendant drove away. Grace reported to the police that day that
defendant had hit her. The evening of June 23 , Grace noticed Olivia was not herself, so she asked Olivia what was wrong. Olivia started crying . After Grace asked again , Olivia responded, crying hysterically and telling Grace that defendant had touched her sexually. Grace also
cried. She kept asking Olivia “Is it true [ ? ] ” and “Are you sure [ ? ] ” But t here was noth ing
about Olivia that made Grace question her. She loved defendant, had two children with him, and did not want to believe he would do that. She was scared and called a friend
who came over and called the police.6

T he family had lived in Salinas for one year

— from August 2005 to August 2006,
and Olivia was in the second grade during that time

.

c . Other p rosecution w itnesses
The SART examiner testified that Olivia spoke of two molestations . The first
occurred in Salinas. Olivia said “He thought I was sleeping. He would stick his fingers
and lick it

. ” Regarding the second time , Olivia said “He lay in my bed and he was touching my arms and chest, and then he put his lips on mine. He got up and spread my legs apart and kissed me in my private part.” The responding detective testified that Olivia told him that the first time involved defendant pulling down her underwear in bed, and kissing and touching her bottom. The
second time defendant kissed Olivia on the lips and on her pr ivate parts.
The female detective testified that Olivia told her that defendant touched, kissed, and licked her bottom, and put his finger in her bottom when she was in the second grade, and more recently defendant had put his lips on Olivia ’s lips, mov ed his hand on her chest and stomach, lifted and spread her legs, and kissed her vagina over her underwear.
Olivia ’s classmate Pauline testified that in January or February 2011, when she
and Olivia were in class in seventh grade , Olivia told her that defendant had raped her in the middle of the night when she lived in Salinas

. Pauline did not ask Olivia what she meant by the word rape. Olivia told Pauline not to tell anyone.
2

. Defendant’s Case

a. Defendant’s t estimony
Defendant and Grace ha d a love

- hate relationship from 2004 to 2011. The couple argued frequently in front of Olivia , and they broke up several times

. Defendant would
move out, then return to the family home upon reconciliation. Grace reported many
domestic incidents to the police to get defendant in trouble , s ome of which were un true. When police responded to a domestic dispute in 20 08 , Olivia told them she had not seen anything. That was untrue, and when confronted by defendant after he and Grace had7

reunited, Olivia expl ained that she stays with Grace when they fight and break up. Defendant did not press Olivia about her lack of candor with the police because he
understood her position

. On March 22, 2011, defendant and Grace argued when he was driving on Blossom
Hill Road. Defendant suggested to Grace that he stay at hi s brother’s for a while

. That angered Grace , who called the police from the car reporting that defendant was kidnapping her. Defendant was under a restraining order at that time, so he immediately
cal led his parole officer. He pulled off the road, and he started walking to his grandmother’s house becau se Grace would not get out of the car. His grandparents
retrieved the car later. He denied hitting Grace that day. He acknowledged that the March 22 police report did not mention kidnapping.
Defendant n ever touch ed Olivia in a sexual way. Olivia was not a problem child, but she was sensitive and would cry easily. D efendant had a positive relationship with
her. Defe ndant was home with the children on June 23, 2011, but left at some point to play poker. H is aunt notified him that Grace had made a report against him, and he never
returned home. Defendant admitted to prior felony convictions for stealing a laptop,
sel ling drugs, and violating a court order related to Grace

. He admitted a misdemeanor conviction for making terrorist threats.

b. Defendant ’s g randm other’s t estimony Defendant’s grandmother confirmed that she and her husband picked up her car on
Blossom Hill Road on March 22, 2011.
C. S ENTENCING The jury found defendant guilty of two counts of committing lewd acts on Olivia

. D efendant was sentenced on count 1 ( based on the earlier offense) to the upper term of eight years, and to a two

- year consecutive term on count 2 ( the later offense )

. Notwithstanding t he probation department’s recommend ation that defendant serve the prison term, the court suspended execution of sentence on the condition that defenda nt8

complete five years ’ formal probation , including at least one year of sex offender

treatment

. The court ordered victim restitution, fines, fees, and probation conditions
which included a one

- year county jail sentence, drug and alcohol prohibitions , and specific restrictions on defendant’s contact with minors

. II. DISCUSSION
A. E VIDENTIARY E RROR Defendant argues that the trial court abused its discretion and denied him due
process “by permitting the jury to be told that [Yvonne] had made allegations of sexual abuse against appellant but ruling that it was irrelevant that charges based on [Yvonne ’s ] allegations had been dropped after her extremely po or testimony before the grand jury. ” According to defendant, the effect of the co urt’s evidentiary ruling was to create “an inaccurate and unfairly prejudicial impression that [Yvonne] had made credible allegations” of sexual abuse against him. The trial court is vested with wide discretion to determine relevance and weigh the preju dicial effect of proffered evidence against its probative value. ( People v. Edwards (1991) 54 Cal.3d 787, 817.) On appeal, its ruling will not be disturbed absent an abuse
of discretion. ( Ibid .) Abuse of discretion occurs when “ ‘the court exceeds the bounds
of reason, all of the circumstances being considered.’ ” ( People v. Adams (2004)
115 Cal.App.4th 243, 252

– 253 .) A due process violation results when evidentiary error makes the trial fundamentally unfair. ( People v. Partida (2005) 37 Cal.4th 428, 439 .)
1. The E videntiary R uling
The People’s trial brief asked the court to exclude under Evidence Code
section 352 (1) evidence that defendant was charged with crimes against Yvonne , (2) evidence that the prosecutor did not seek an indictment for c onduct involving
Yvonne , and ( 3 ) evidence of Yvonne ’s statements , including her testimony before the
g rand j ury and at trial

. According to the brief , “the defense by necessity has to convince the jury that defendant never molested [Yvonne] in any form or fashion. Thus, there will9

be for all intents and purposes a trial on those crimes. That litigation will likely become the predominant issue at trial. Thus, the admission of this evidence will also create substantial danger of confusing the issues. Pres umably, the defense seeks to persuade the jury [Yvonne] is lying to convince them that [Olivia] is likewise untruthful when there is no nexus. Thus, the admission of this evidence will also create a danger of undue prejudice.” At the pretrial hearing addressing the prosecution’s request , t he court noted defendant’s position that Olivia fabricated her story because either Grace put her up to it or it was part of a design by both girls to get defendant in trouble. Defendant argue d that
Yvonne ’s testimony before the grand jury and the prosecutor’s reaction to that testimony
demonstrated fabrication by Yvonne , and the fact that Olivia disclosed her molestations only after Yvonne told her what had happened to her showed that Olivia i nvented her story to copy her niece. Defendant pressed that “the totality of the evidence with respect to that sequence of events and the consequences of it” was relevant to judge Olivia ’s credibility

— to determine whether Olivia copied Yvonne in a “me

- too syndrome.”
The court ruled that Yvonne ’s communication with Olivia was relevant to explain
Olivia ’s delayed disclosure : “ Clearly it’s relevant if the People are going to be trying to explain delayed disclosure by [Olivia] Doe that the disclosure arose out of a
communication she had with [Yvonne] asserting misconduct on the part of the
defendant. ” The court further ruled that the details of Yvonne ’s disclosure, her later allegations, and her grand jury testimony were not r elevant to Olivia ’s truthfulness. The court explained: “However, this is not a final ruling. A lot of things come into play here, the similarity of the disclosures, the timing, the presence of other persons. All of those things are relevant to the ques tions I’ve asked, but absent some proof that the disclosures made by [Yvonne] are false , this is not going to be a trial of the truth or falsity of [Yvonne ’s ] allegations against the defendant .”10

The court then clarified what it was deeming admissible : “ Counsel, the fact that [Yvonne] reported sexual molestation to [Olivia] may be inaccurate. I’m simply trying to paraphrase what I have heard counsel say. My only understanding is that [Yvonne] passed a note that she said something to [Olivia] and said, I can’t say it, I want to write it, something to that effect. Yes, that’s admissible .”
2. Analysis

a. Olivia ’s delayed disclosure The court’s evidentiary ruling regarding Olivia ’s delayed disclosure was not an abuse of discretion. The ruling was narrow: It allowed Olivia to testify that her disclosure was prompted by the note Yvonne gave her

. Indeed, the court’s exclusion of
the details of Yvonne ’s disclosure and its clarification that Yvonne ’s passing a note was
admissible dispel s any notion that it was allowing Olivia to testify to the girls’
conversation or the hearsay content of Yvonne ’s note

. Olivia testified that Yvonne gave her a note that made her scared and upset, and that note prompted Olivia to tell Grace what defendant had done to her. Defendant does not dispute the relevancy of that evidence. Olivia did not testify to any molestations alleged by Yvonne . She did not testify to her conversation with Yvonne , nor did she
mention the content of the note

. Defendant’s cha racterization of the ruling as “permitting the jury to be told that [Yvonne] had made allegations of sexual abuse against [defendant]” is inaccurate

. T he r uling did not allow evidence of or lend veracity to
Yvonne ’s allegations, as defendant contends , because it did not permit evidence of her
disclosure

. b. Yvonne ’s grand jury appearance and the prosecutor’s decision

not to prosecute Defendant argues that the trial court abused its discretion by exclud ing Yvonne ’s testimony before the grand jury a nd the prosecutor’s consequent decision to forgo prosecution on the molestation charges involving her

. He argues that the ruling was11

based entirely on relevancy grounds , and it should not be upheld under Evidence Code
section 352 , which gives the court di scretion to “ exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of mislea ding the jury. ” (Evid. Code, § 352.)

“ ‘ [ T ] he latitude [ Evidence Code ] section 352 allows for exclu sion of impeachment evidence in individual cases is broad

. ’ ” ( People v. Ayala (2000)
23 Cal.4th 225, 301.) “ ‘ T he statute empowers courts to prevent criminal trials from degenerating into nitpicking wars of attrition over collateral credibility issues.’ [Citation.]” ( Ibid .) Fairly understood, the court’s relevancy obse rvations were simply component s of its ruling under section 352 that it would not p ermit a collateral “trial of the truth or falsity of [Yvonne ’s ] allegations against the defendant .” The court clearly had a concern with defendant seeking to introduce inconclusive evidence to establish that Yvonne had fabricated her disclosure to Olivia

. Absent some proof of
fabric ation, the court was not going to allow the trial to devolve into a mini trial about
Yvonne ’s veracity.
Th e ruling wa s not an abuse of discretion. The prosecutor’s trial brief identified
Yvonne ’s statements

— to Olivia , to he r mother, to two police officers, and to the SART
examiner

— and the judge met with counsel in chambers to discuss the matter before the hearing. Yvonne would have to testify before her grand jury testimony could be admitted (Evid. Code, §§ 1200, 1235, 1236 ), and the statements she made to Olivia , Grace , the SART examiner, and the police would be admissible to show that she had never retracted
her disclosure . Presenting Yvonne ’s multiple statements to the jury would have shifted
the focus of the trial to Yv onne , not only resulting in an undue consumption of time, but also creating the danger of confusing the issues

. Nor did the court abuse its discretion by excluding the prosecutor’s decision to
abandon the charges based on Yvonne ’s statements

. Th at decision reflected the12

prosecutor ’s estimation that it w ould be difficult to prove beyond a reasonable doubt discrete lewd acts during specific time periods . It did not directly speak to the truth of
Yvonne ’s disclosure to Olivia , much less to Olivia ’s credibility

.

c . Due p rocess D efendant did not raise a due process claim in the trial court . On appeal, he
claims his trial was rendered fundamentally unfair because the evidentiary ruling “create[d] an impression both that [Yvonne ’s ] allegations sho uld be viewed as credible and that the jury could weigh those allegations in deciding whether to find [defendant] guilty of the charges related to [Olivia]

. ” Defendant argues that the rul ing violated his due process right to a fair trial because “[t]he jury had been given no reason, after all, to
believe that [Yvonne] was lying, and would consequently have assumed that a young girl must be telling the truth if she alleged ‘he touches us.’ ” Defendant is referring to
Grace ’s direct e xamination where she was asked whether Olivia had told her that
defendant had touched her. Grace responded, “She said he touches us.” The prosecutor clarified, “That he touched her?” and Grace responded “Yes.”
As much as defendant tries to tether his du e process argument to the court’s pretrial evidentiary ruling, the record does not bear out a nexus

. As we have detailed , th e evidentiary ruling allowed Olivia to testify that Yvonne gave her a note to explain the timing of Olivia ’s disclosure ; it did not permit Olivia to testify to the hearsay content of
Yvonne ’s communication with her

. The ruling therefore created no specific impression
about Yvonne ’s allegations.
Nor did the ruling , directed at Olivia ’s testimony, permit Grace ’s “ [ s ] he said he touches us” testimony

— the only reference to any allegation by Yvonne in the entire trial 3

3 Defendant’s briefing identifies a second reference to Yvonne’s allegations which we attribute to a misstatement by the prosecutor. In her direct examination of Grace about Olivia’s disclosure, t he prosecutor asked: “Did you tell [defendant’s] grandfath er that [Yvonne] (verbatim) had disclosed some conduct to you?” Grace answered “I did” (Continued)13

and the testimony defendant complains actually prejudiced him

. On direct examination,

t he prosecutor asked Grace if Olivia told her that defendant touched her. Grac e responded, “ She said he touches us

. ” The prosecutor focused the inquiry on Olivia : “That he touched her?” Grace answered “yes.” D efendant failed to object to that testimony

. Accordingly, his claim is forfeited on appeal

. ( People v. Poggi (19 8 8)
45 Cal.3d 306, 331 [ “ ‘ questions relating to admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection in the trial court on the ground sought to be urged on appeal

. ’ ” ]

. )
B. S ENTENCING E RROR

— I NEFFECTIVE A SSIS TANCE OF C OUNSEL The probation report , read and considered by the trial court, recommended that probation be denied and defend ant serve 10 years in prison. In support of the
recommended upper term of eight years for count 1 , the report identified eight aggravating factors : T he crime in volved a high degree of cruelty, the victim was particularly vulnerable, defendant took advantage of a position of trust, defendant had engaged in violent conduct indicating a serious danger to society, defendant’s prior

c onvictions were of increasing seriousness, defendant had served a prior prison term, defendant was on parole when the crime was committed, and defendant’s prior performance on probation and parole was unsatisfactory. The report identified no mitigating ci rcumstances. The probation report recommended a two

- year consecutive

sentence on count 2 , representing one

- third the middle term of six years

.

to that question and to the prosecutor’s follow up question, “That she

... told you that [defendant] had done something sexually to her?” The prosecutor continued to ask questions about Olivia and the course of events that evening, with no mention of Yvonne. I t appears from the line of questioning

— indeed the court reporter’s injection of the parenthetical “verbatim”

— that the single reference to Yvonne was a mistake by th e prosecutor. Defendant did not object to that reference, nor does he argue that it rendered his trial fundamentally unfair.14

A psychological assessment conducted under Penal Code section 288.1 concluded
that defendant had an interest in and willing ness to comply with sex offender treatment. The reporting psychologist noted that defendant met the criteria for a p edophilic d isorder diagnosis, but that the risk of reoffending was low. The prosecutor agreed with the probation department’s recommendation, describing the aggravating factors as “overwhelming.” She pressed that the first offense
occurred when Olivia was very young and defendant was on formal probation for a controlled substance conviction. She urged consecutive sentences beca use the offenses were attenuated by time and distance. She argued that defendant was not amen able to

treatment because he continued to deny his crimes.
Defendant countered that he was agreeable to counseling, that his criminal history was not egregious, and that even though he made “miserable choices,” a 10

- year prison sentence was unwarranted. Counsel pleaded that the court “apply a level of mercy, a
level of consideration for the totality of the facts,” and impose a lesser sentence than that recommended by the probation department. Before pronouncing sentence, t he court rejected counsel’s characterization of
defendant as “some hapless victim of circumstance in this strange domest ic dynamic,” observing that defendant’s criminal record, including convictions and arrests for inflicting injury on a child, child endangerment, violatin g domestic restraining orders,
and making criminal threats in a domestic situation showed a pattern of volitional
conduct

. The court also rejected the prosecutor’s argument that defendant was not amenable to treatment by virtue of his refusal to admit guilt to the psychologist or the probation officer, in light of defendant’s concern that any admission cou ld undermine his appeal. The court impose d the upper term of eight years on count 1 , commenting “I’m imposing that term on the basis of there being no finding of any mitigating
circumstances , ” and a two

- year consecutive sentence on count 2 , for an aggre gate 10

- year15

prison term. The court suspended execution of the sentence conditioned on successful completion of five year s ’ formal probation

. Defendant contends that the trial court erred by imposing the upper term on

count 1 based entirely on the abse nce of mitigating factors, and by failing to provide a
basis for sentencing the two counts consecutively . Recognizing that he ha s forfeited
tho se claims by failing to object in the trial court ( People v. Scott (1994) 9 Cal.4th 331,
354 ), he asserts on appeal that counsel was constitutionally ineffective for not objecti n g to the court sentencing him without stating reasons for its sentencing choice

. Ineffective assistance of counsel requires a showing that counsel’s performance fell below an objectiv e standard of reasonableness and that defendant was prejudiced by the deficient performance. ( Strickland v. Washington (1984) 466 U.S. 668, 687 .) “When a defendant makes an ineffectiveness claim on appeal, the appellate court must look to
see if the reco rd contains any explanation for the challenged aspects of representation. If the record sheds no light on why counsel acted or failed to act in the manner challenged, ‘unless counsel was asked for an explanation and failed to pro vi de one, or unless there simply could be no satisfactory explanation’ [citation] , the case is affirmed [citation].” ( People v. Babbitt (1988) 45 Cal. 3d 660, 707.) Prejudice requires a showing “that there is a reasonable probability that , but for counsel’s unprofessional errors, the result of the proceeding would have been different.” ( Strickland , at p. 694.) Counsel’s performance was not deficient because the record shows that the court considered the aggravating factors when it im posed the upper term on count 1 . Indeed,
the court read and considered the probation report , invited comment on the report’s
accuracy and content, and listened to the prosecutor’s argument. The court’s stated reason for imposing the upper term

— the absence of mitigating factors

— can only be
unders tood in this larger context. Defendant does not argue that the probation report identified inapplicable aggrava ting factors, each of which c ould support an upper term16

sentence. In light of this record, it was objectively reasonable for counsel not to see k a
more detailed sentencing pronouncement. Similarly, the imposition of a con secutive term for count 2 must be viewed in light of the probation report and the prosecutor’s argument. As noted by the prosecutor, consecutive sentences were justified by th e fact that the offenses occurred separately, years apart. (Cal. Rules of Court, rule 4.425(a)(3). ) Given that the consecutive sentence was supportable, counsel’s failure to seek reasons for the consecutive term did not constitute deficient performance. In addition to deficient performance, d efendant has failed to show prejudice
result ing from counsel’s not objecti n g

. In light of the record ’s ample support for the 10

- year prison sentence, and the court’s showing of leniency by suspending execution of that

sentence , it i s not reasonably probable that defendant would have received a more
favorable outcome had counsel objected to the stated reasons (or absence thereof) supporting his sentence

. III. DISPOSITION The judgment is affirmed.____________________________________ Grover, J.

I CONCUR:

____________________________ Bamattre

- Manoukian, Acting P.J.

I CONCUR IN THE JUDGMENT ONLY:

____________________________ Mihara, J.