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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 ordered 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 formal 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 jury’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 Doe1 was molested twice by defendant. The first molestation 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.

The 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 disclosed 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.

II. TRIAL COURT PROCEEDINGS

A. GRAND JURY PROCEEDINGS

In March 2012 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-old Yvonne testified that she was touched by defendant in an 

uncomfortable way in second grade. When asked to tell the grand jury what happened, 

she said “I’ve 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 interviews and said she told the truth both times, but she could 

not remember what she said. 

Yvonne testified that defendant touched her in a bad way the day the police 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 came. Defendant 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 not 
3

describe any incident with specificity. She repeatedly said she could no longer recall 

events. Defendant “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 genitals, and she denied or could not recall 

whether that contact had occurred. She declined to read a statement she had written at 

her second interview, stating it was sloppy and she could 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 private 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, kissed 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 white stuff would come out, and that 

had happened between five and seven 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 

defendant 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 it 

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 remember 
4

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 weird places,” and “He kissed

me and touched 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 indictment 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 

conduct testified to by [Yvonne] Doe.” 

B. TRIAL

1. The Prosecution’s Case

a. Olivia’s testimony

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 pajamas 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 

telling 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 Japan (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.

Defendant touched Olivia again in bed when she was in the seventh grade. She 

had just awakened when defendant 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 testimony

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 March 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 there was nothing 

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

The 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 prosecution witnesses

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 private 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, moved 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 testimony

Defendant and Grace had 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, some of which were untrue. 

When police responded to a domestic dispute in 2008, Olivia told them she had not seen 

anything. That was untrue, and when confronted by defendant after he and Grace had 
7

reunited, Olivia explained 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 his 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 

called his parole officer. He pulled off the road, and he started walking to his 

grandmother’s house because 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 never touched Olivia in a sexual way. Olivia was not a problem child, 

but she was sensitive and would cry easily. Defendant had a positive relationship with 

her. Defendant was home with the children on June 23, 2011, but left at some point to 

play poker. His 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, 

selling drugs, and violating a court order related to Grace. He admitted a misdemeanor 

conviction for making terrorist threats.

b. Defendant’s grandmother’s testimony

Defendant’s grandmother confirmed that she and her husband picked up her car on 

Blossom Hill Road on March 22, 2011.

C. SENTENCING

The jury found defendant guilty of two counts of committing lewd acts on Olivia. 

Defendant 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 the probation department’s recommendation that defendant serve the 

prison term, the court suspended execution of sentence on the condition that defendant 
8

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. EVIDENTIARY ERROR

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 poor testimony before the grand jury.” 

According to defendant, the effect of the court’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 

prejudicial 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 Evidentiary Ruling

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 conduct involving 

Yvonne, and (3) evidence of Yvonne’s statements, including her testimony before the 

grand jury 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 will 
9

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. Presumably, 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, the 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 argued 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 invented 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 relevant 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 questions 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 dispels 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 characterization of the ruling as “permitting 

the jury to be told that [Yvonne] had made allegations of sexual abuse against 

[defendant]” is inaccurate. The ruling 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 excluding Yvonne’s 

testimony before the grand jury and the prosecutor’s consequent decision to forgo 

prosecution on the molestation charges involving her. He argues that the ruling was 
11

based entirely on relevancy grounds, and it should not be upheld under Evidence Code 

section 352, which gives the court discretion 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 misleading the jury.” (Evid. Code, § 352.) 

“ ‘[T]he latitude [Evidence Code] section 352 allows for exclusion of

impeachment evidence in individual cases is broad.’ ” (People v. Ayala (2000) 

23 Cal.4th 225, 301.) “ ‘The 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 observations were 

simply components of its ruling under section 352 that it would not permit 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 

fabrication, the court was not going to allow the trial to devolve into a mini trial about 

Yvonne’s veracity. 

The ruling was not an abuse of discretion. The prosecutor’s trial brief identified 

Yvonne’s statements—to Olivia, to her 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 Yvonne, 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. That decision reflected the 
12

prosecutor’s estimation that it would 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 process

Defendant 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 should 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 ruling 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 examination 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 due process argument to the court’s 

pretrial evidentiary ruling, the record does not bear out a nexus. As we have detailed, the 

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 trial3

 

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, the prosecutor asked: “Did you tell [defendant’s] grandfather 

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, 

the prosecutor asked Grace if Olivia told her that defendant touched her. Grace

responded, “She said he touches us.” The prosecutor focused the inquiry on Olivia: 

“That he touched her?” Grace answered “yes.” Defendant failed to object to that 

testimony. Accordingly, his claim is forfeited on appeal. (People v. Poggi (1988) 

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. SENTENCING ERROR—INEFFECTIVE ASSISTANCE OF COUNSEL

The probation report, read and considered by the trial court, recommended that 

probation be denied and defendant serve 10 years in prison. In support of the 

recommended upper term of eight years for count 1, the report identified eight

aggravating factors: The crime involved 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 

convictions 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 circumstances. 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.

It 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 the 

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 willingness to comply with sex offender treatment. 

The reporting psychologist noted that defendant met the criteria for a pedophilic disorder 

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 because the offenses 

were attenuated by time and distance. She argued that defendant was not amenable 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, the court rejected counsel’s characterization of 

defendant as “some hapless victim of circumstance in this strange domestic dynamic,” 

observing that defendant’s criminal record, including convictions and arrests for 

inflicting injury on a child, child endangerment, violating 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 could undermine his 

appeal. 

The court imposed 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 aggregate 10-year 
15

prison term. The court suspended execution of the sentence conditioned on successful 

completion of five years’ formal probation.

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

count 1 based entirely on the absence of mitigating factors, and by failing to provide a 

basis for sentencing the two counts consecutively. Recognizing that he has forfeited 

those 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 objecting

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 objective 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 record 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 provide 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 imposed 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 

understood in this larger context. Defendant does not argue that the probation report 

identified inapplicable aggravating factors, each of which could support an upper term 
16

sentence. In light of this record, it was objectively reasonable for counsel not to seek a 

more detailed sentencing pronouncement. 

Similarly, the imposition of a consecutive 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 the 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, defendant has failed to show prejudice 

resulting from counsel’s not objecting. 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 is 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.