Filed 3/27/13 P. v. Agudelo CA2/7 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

SECOND APPELLATE DISTRICT 

DIVISION SEVEN 

THE PEOPLE, 

 Plaintiff and Respondent, 

 v. 

ASDRUBAL AGUDELO, 

 Defendant and Appellant. 

 B236696 

 (Los Angeles County 

 Super. Ct. No. VA114688) 

 APPEAL from a judgment of the Superior Court of Los Angeles County, Lori Ann 

Fournier, Judge. Affirmed. 

 David M. Thompson, under appointment by the Court of Appeal, for Defendant 

and Appellant. 

 Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney 

General, Lance E. Winters, Senior Assistant Attorney General, Mary Sanchez and David 

Zarmi, Deputy Attorneys General, for Plaintiff and Respondent 

______________________ 
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 A jury convicted Asdrubal Agudelo of lewd and lascivious conduct with a child 

under 14 years old. Evidence at trial included recorded telephone calls between the 

victim, Amy D., and Agudelo, which were initiated by police after Amy had reported the 

abuse to her mother. Telling Agudelo the police had contacted her to ask questions about 

him, Agudelo told her to deny everything. After he became suspicious the calls were 

being monitored, Agudelo denied any misconduct had occurred. On appeal Agudelo 

contends the trial court erred in instructing the jury regarding adoptive admissions and 

abused its discretion in sentencing him to the upper term of eight years. He also contends 

he received constitutionally ineffective assistance from his trial counsel. We affirm. 

FACTUAL AND PROCEDURAL BACKGROUND 

1. The Charges 

 Agudelo was charged by amended information with two counts of lewd and 

lascivious conduct with a child under 14 years old (Pen. Code, § 288, subd. (a)) (counts 1 

and 2),

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 forcible rape (§ 261, subd. (a)(2)) (count 3), lewd and lascivious conduct by force 

with a child under 14 (§ 288, subd. (b)(1)) (count 4) and aggravated sexual assault of a 

child under 14 years old and seven or more years younger than the perpetrator (§ 269, 

subd. (a)(1)) (count 5). After counts 1 and 3 were dismissed in the furtherance of justice 

(§ 1385), Agudelo pleaded not guilty to the remaining counts. 

2. Summary of the Evidence Presented at Trial 

 a. The People’s evidence 

 Fifteen-year-old Amy testified Agudelo began dating her mother when Amy was 

five or six years old. Although Agudelo and Amy’s mother stopped dating in early 2007, 

they remained friends. Amy continued to see Agudelo and his son, Omar, two to three 

times a week. Amy called Agudelo “Pa.” 

 In June 2007 Agudelo told Amy’s mother he was going to take Amy, then 

10 years old, shopping for a graduation dress. Instead, Agudelo took Amy to his 

apartment where he pulled her onto the bed and penetrated her with his penis. Agudelo 

 

1 Statutory references are the Penal Code. 
3

told Amy not to tell anyone because he would go to jail and she would never see Omar 

again. Amy was afraid to tell her mother because she was very strict—she had beaten 

and screamed at Amy—and Amy did not think her mother would believe her. 

 In late 2008 Omar’s mother told a social worker she should interview Amy to 

determine if she had been sexually abused because Amy was drawing pictures of penises 

and showing them to Omar. Amy testified she denied being sexually abused at that time 

because she was scared and “didn’t feel ready to open up.” 

 In June 2009 Agudelo picked Amy up to play with Omar but instead took her to 

his apartment. After they smoked marijuana, Omar penetrated her with his penis. He 

again told Amy not to tell anyone because he would go to jail and she would never see 

Omar again, which saddened Amy because she felt like a sister to him. 

 In March 2010 Amy’s mother discovered Amy had marijuana. Amy testified, 

after she told her mother Agudelo had given her the marijuana, her mother “pulled 

together in her head that if he’s giving me drugs, then most likely he’s doing something 

with me. So she asked me if he ever did anything with me, and I told her the truth.” 

Amy’s mother took her to the police. After Amy described both incidents to Los Angeles 

Police Detective Carlos Fernandez, Fernandez called Agudelo and arranged an interview. 

Agudelo subsequently retained an attorney, who rescheduled the interview. 

 The day before the interview Detective Fernandez had Amy call Agudelo from the 

police station. They spoke three times, and the recorded calls were played for the jury. 

The transcript from the first call includes the following exchange: 

 “[Amy]: Pa, it’s Amy. 

 “[Agudelo]: What’s up? 

 “[Amy]: Oh, I don’t know, they came to my school and they were saying they 

wanted to ask me something about you. Have you said anything to them? 

 “[Agudelo]: No. [Unintelligible.] What’s happening? 

 “[Amy]: I don’t know. I’m afraid. 

 “[Agudelo]: No, but what happened. You’re not telling me anything, let’s see, 

they are going to throw me in jail. What happened? 
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 “[Amy]: But why? I didn’t say anything. 

 “[Agudelo]: You haven’t said anything? 

 “[Amy]: No! 

 “[Agudelo]: No, because they are going to throw me in jail. 

 “[Amy]: What shall I say if they ask me something? 

 [¶] . . . . [¶] 

 “[Agudelo]: I’m not going to say anything to your mom, no, not this. Nothing. 

You have to deny everything. Or won’t you? 

 “[Amy]: But what about if they ask me if I’ve been with you or something. 

 “[Agudelo]: No, no. You say no, that I’ve never touched you, never, just that I’ve 

kissed you, that I’ve kissed you on the cheek. Or you kiss me, you greet me. Please, 

deny everything. 

 “[Amy]: What about drugs? 

 “[Agudelo]: Not that either . . . .” 

 After Amy pressed Agudelo as to what she should do if the authorities gave her a 

physical examination—“a sex exam, Pa”—Agudelo responded he had a copy of a letter 

Amy had written to Miguel Gomez, her former boyfriend, stating she had lost her 

virginity to him: “Everything you wrote that you, you, you gave to Miguel. Everything 

you wrote. I have it. Deny it to the very end, deny it. No, you can say, you can say 

that.” Later, Amy asked, “What if I tell them that we had sex just once.” Agudelo 

responded, “No, no, no. Don’t say that, Amy, don’t ever say that, not on your friggin 

life.” “Even if you say it was just once, they’ll throw me in jail for life! At once!” Amy 

asked, “Do I have to lie?” Agudelo responded, “Yeah.” Amy confirmed, “Then should I 

lie?” Agudelo responded, “I don’t know. I mean, how could you say oh—if—they are 

going to tell me—they are going to put me in jail for life if they say that I, I abused a 

minor, they’ll put me in jail.” Amy kept asking if she should lie, and Agudelo began to 

get suspicious, asking who was with Amy. 

 During the second call Amy told Agudelo the police were meeting with her 

mother and Amy had told the police she and Agudelo had sex once because Agudelo had 
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not told her what to say. Agudelo exclaimed, “Not that Amy. You can’t Amy.” 

Eventually, Agudelo asked if someone was with Amy and whether he was being 

recorded. Later he denied having sex with Amy or touching her. During the third call 

Amy kept asking Agudelo whether he wanted her to lie, and Agudelo again asked if he 

was being recorded. He also denied touching Amy. 

 b. The defense evidence 

 Agudelo testified he loved Amy and treated her like a daughter, but she would lie 

to get what she wanted. In November 2009 Amy was upset Gomez had broken up with 

her. She wrote the letter telling Gomez he was her first sexual partner while she was in 

Agudelo’s car. Although Amy gave the letter to Gomez, she left a draft in the car. 

Agudelo testified he told Amy to “deny everything” because he was worried he had left 

Amy unsupervised at various times, especially with Gomez, and had taken her places 

without her mother’s consent. 

 Agudelo also presented the testimony of several witnesses. Gomez testified Amy 

and Agudelo had a father-daughter relationship, Gomez had never observed any sexual 

nature to their relationship and Agudelo was careful to allow Amy to be alone with 

Gomez only in public. A friend of Amy’s from middle school testified Amy and 

Agudelo always interacted like a stepfather and daughter and Amy had a reputation for 

lying. Agudelo’s sister testified she never saw Agudelo exhibit lewd intentions toward 

children at any of the many family gathering she had attended with him and Agudelo had 

a reputation for telling the truth. Dr. Hy Malinek. a clinical psychologist, testified he and 

another doctor who administered psychological tests did not find evidence of sexual 

deviance or pedophilia: If the alleged conduct had occurred, the incidents appear to have 

been isolated, situational and impulsive acts separated by two years. 

3. The Jury Instruction Concerning Adoptive Admissions 

 The trial court informed counsel it intended to instruct the jury on adoptive 

admissions “because, based on my reading of the law, I have a sua sponte duty to include 

it if there is anything . . . the jury could find is an adoptive admission.” Overruling the 

prosecutor and defense counsel’s general objections and finding the instruction was 
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warranted “based on the evidence,” the court instructed the jury with CALCRIM 

No. 357: “If you conclude that someone made a statement outside of court that accused 

the defendant of the crime or tended to connect the defendant with the commission of the 

crime and the defendant did not deny it, you must decide whether each of the following is 

true: [¶] The statement was made to the defendant or made in his presence. [¶] The 

defendant heard and understood the statement. [¶] The defendant would, under all the 

circumstances, naturally have denied the statement if he thought it was not true. The 

defendant could have denied it but did not. If you decide that all of these requirements 

have been met, you may conclude that the defendant admitted the statement was true. If 

you decide that any of these requirements has not been met, you must not consider either 

the statement or the defendant’s response for any purpose. ” 

4. The Jury’s Verdict and Sentencing 

 The jury found Agudelo guilty of lewd and lascivious conduct with a child under 

14 years old, but was unable to reach a verdict on the remaining charges of lewd and 

lascivious conduct by force and aggravated sexual assault. At the sentencing hearing 

defense counsel contended Agudelo should be sentenced to the low term of three years. 

(§ 288, subd. (a).) Counsel argued several witnesses had testified Agudelo was a kind 

father, there were no other incidents of sexual misconduct and the psychological testing 

demonstrated there was a very low risk of future dangerousness. 

 In sentencing Agudelo to the upper term of eight years in state prison, the court 

explained, “Mr. Agudelo, this young girl looked to you as a father figure. She didn’t 

have a father of her own to guide her. She had a life that was filled with turmoil based on 

her relationship with her mother. You took advantage of that troubled relationship. And 

you gained her trust by allowing her to do things that her mother didn’t allow. . . . I have 

considered the statements by your children. It seems that you were a fabulous father to 

your own children, but you didn’t think of what would happen based on your actions. 

You didn’t show any remorse for your actions. When you were confronted by Amy D. 

during that phone call, you tried to convince her to lie to protect you. . . . This was not a 
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mere touching. You had . . . sexual intercourse with a 12-year-old girl who looked to you 

and called you Pa, thought of you as her father.” 

DISCUSSION 

1. The Trial Court Properly Instructed the Jury on Adoptive Admissions 

 A trial court in a criminal case has a duty to instruct on general principles of law 

applicable to the case (People v. Blair (2005) 36 Cal.4th 686, 745), that is, “‘“‘those 

principles closely and openly connected with the facts before the court, and which are 

necessary for the jury’s understanding of the case.’”’” (People v. Valdez (2004) 

32 Cal.4th 73, 115.) However, “[i]t is error to give an instruction which, while correctly 

stating a principle of law, has no application to the facts of the case.” (People v. Guiton 

(1993) 4 Cal.4th 1116, 1129.) “In assessing a claim of instructional error, ‘we must view 

a challenged portion “in the context of the instructions as a whole and the trial record” to 

determine “‘whether there is a reasonable likelihood that the jury has applied the 

challenged instruction in a way’ that violates the Constitution.”’” (People v. Jablonski

(2006) 37 Cal.4th 774, 831; see Guiton, at p. 1130 [error in giving instruction that has no 

application to facts reviewed under harmless error standard in People v. Watson (1956) 

46 Cal.2d 818].) 

 Agudelo contends the trial court has no sua sponte duty to instruct on adoptive 

admissions. He further argues the instruction was not supported by substantial evidence 

because the record is clear he vehemently denied Amy’s accusations. 

 Although it is true the trial court does not have a sua sponte duty to instruct on 

adoptive admissions, it “may certainly instruct on the matter if [it] think[s] it best to do 

so.” (People v. Carter (2003) 30 Cal.4th 1166, 1198.) Moreover, contrary to Agudelo’s 

characterization of the record, the trial court properly determined the instruction was 

warranted by the evidence. During the first call with Amy, before he became suspicious 

it was being recorded, Agudelo repeatedly told Amy to deny the accusations, but did not 

deny them himself. Indeed, at the outset of the conversation, when Amy simply told 

Agudelo the police wanted to ask her something about Agudelo, he twice responded he 

would be thrown in jail. In addition, when Amy suggested she tell the police she and 
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Agudelo “had sex just once,” his response, far from being a denial of his criminal acts, 

was virtually an admission: “Even if you say it was just once, they’ll throw me in jail for 

life!” While Agudelo may have later denied the accusations, that initial exchange was 

sufficient evidence to warrant the instruction. It was well within the province of the jury 

to decide whether Agudelo was telling the truth when he later explained he simply was 

afraid he would get in trouble for failing to properly supervise Amy. 

2. Agudelo Has Forfeited His Claim of Sentencing Error 

Courts have broad sentencing discretion, and we review a trial court’s sentencing 

choices for abuse of that discretion. We will reverse a sentence only if there is a clear 

showing it was arbitrary or irrational. (People v. Sandoval (2007) 41 Cal.4th 825, 847; 

People v. Moberly (2009) 176 Cal.App.4th 1191, 1196; People v. Avalos (1996) 

47 Cal.App.4th 1569, 1582-1583.) A trial court abuses its discretion if it relies upon 

circumstances that are not relevant to, or that otherwise constitute an improper basis for, 

the sentencing decision. (Sandoval, at p. 847; Moberly, at p. 1196.) 

 Under section 1170, subdivision (b), when a statute specifies three possible terms, 

choice of the appropriate term rests within the trial court’s discretion. The court may 

consider the record in the case, the probation report, evidence introduced at the 

sentencing hearing and “any other factor reasonably related to the sentencing decision” 

(California Rules of Court, rule 4.420(b)),

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 and “shall select the term which, in the court’s 

discretion, best serves the interests of justice” (§ 1170, subd. (b)). The existence of a 

single aggravating circumstance is legally sufficient to make the defendant eligible for 

imposition of the upper term. (People v. Black (2007) 41 Cal.4th 799, 816; People v. 

Osband (1996) 13 Cal.4th 622, 728.) 

 Here, the trial court identified as aggravating factors Amy’s vulnerability and the 

fact Agudelo took advantage of a position of trust and confidence to commit the offense. 

(Rule 4.421(a)(3) and (a)(1).) Agudelo does not contest these factors. Rather, he 

contends the very nature of lewd conduct with a child implicates a particularly vulnerable 

 2 References to rule or rules are to the California Rules of Court. 
9

victim and some violation of a position of trust, thus they are not “particularly egregious 

factors” that make one form of the offense worse than another. (See People v. Moreno

(1982) 128 Cal.App.3d 103, 110 [“essence of ‘aggravation’ relates to the effect of a 

particular fact in making the offense distinctively worse than the ordinary”].) Agudelo 

also argues the trial court failed to consider mitigating factors and “additional criteria 

reasonably related” to the sentencing choice (rule 4.408), including that he had exercised 

caution so no harm was done or threatened against Amy (rule 4.423(a)(6)); he only took 

advantage of her twice over a several-year period; he was gainfully employed and 

supported his family; one of his son’s testified what an important influence Agudelo had 

been on his life; several friends and professional associates vouched for his honesty, 

dependability and work ethic; and the psychological reports found him to be low risk for 

future offense. 

 Agudelo has forfeited his claim of error by failing to object at the time of 

sentencing that the court had not fully considered all relevant factors. “Ordinarily, an 

appellate court will not consider a claim of error if an objection could have been, but was 

not, made in the lower court. [Citation.] The reason for this rule is that ‘[i]t is both 

unfair and inefficient to permit a claim of error on appeal that, if timely brought to the 

attention of the trial court, could have been easily corrected or avoided.’” (People v. 

French (2008) 43 Cal.4th 36, 46.) This forfeiture (waiver) doctrine applies to claims the 

trial court failed to properly make a discretionary sentencing choice. (People v. Scott

(1994) 9 Cal.4th 331, 356 [“complaints about the manner in which the trial court 

exercises its sentencing discretion and articulates its supporting reasons cannot be raised 

for the first time on appeal”]; see People v. Tillman (2000) 22 Cal.4th 300, 303 [People’s 

failure to object to trial court’s failure to state on the record its reasons for not imposing a 

restitution fine forfeited claim on appeal].) As the Supreme Court explained in Scott,

“[T]he waiver doctrine should apply to claims involving the trial court’s failure to 

properly make or articulate its discretionary sentencing choices. Included in this category 

are cases in which the stated reasons allegedly do not apply to the particular cases, and 

case in which the court purportedly erred because it double-counted a particular 
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sentencing factor, misweighed the various factors, or failed to state any reasons or give a 

sufficient number of valid reasons. [¶] . . . Although the court is required to impose 

sentence in a lawful manner, counsel is charged with understanding, advocating, and 

clarifying permissible sentencing choices at the hearing. Routine defects in the court’s 

statement of reasons are easily prevented and corrected if called to the court’s attention. 

As in other waiver cases, we hope to reduce the number of errors committed in the first 

instance and preserve the judicial resources otherwise used to correct them.” (Scott, at 

p. 353.) 

 Agudelo contends he did not forfeit his sentencing claim because he presented to 

the trial court the factors he believed warranted a low term. To be sure, Agudelo 

identified some of those factors—the testimony he had been a good father and the results 

of the psychological test indicating he was at low risk for reoffending—but, he did not 

argue the aggravating factors found by the court were inherent in any case of lewd 

conduct with a child under 14, an argument palpably without merit in any event. 

Additionally, he did not identify one of the mitigating factors he now urges on appeal, 

which is the basis for his ineffective assistance of counsel claim, that he exercised caution 

not to harm Amy and no physical harm was done or threatened (rule 4.423(a)(6)). 

Moreover, the court did assess all the factors Agudelo presented to it, stating, “I have 

read and considered the probation report filed in this case, the Static 99 assessment 

[finding minimal risk of sexual recidivism] and the sentencing memos by both parties.” 

3. Agudelo Has Failed To Demonstrate His Counsel Was Ineffective for Failing 

To Argue Amy Was Not Harmed as a Mitigating Factor 

To escape the forfeiture doctrine, Agudelo contends his counsel was 

constitutionally ineffective in failing to argue as a mitigating factor Amy was neither 

harmed nor threatened (rule 4.423(a)(6)). To establish ineffective assistance of counsel, a 

defendant must demonstrate that “(1) counsel’s representation was deficient in falling 

below an objective standard of reasonableness under prevailing professional norms, and 

(2) counsel’s deficient representation subjected the petitioner to prejudice, i.e., there is a 

reasonable probability that, but for counsel’s failings, the result would have been more 
11

favorable to the petitioner.” (In re Neely (1993) 6 Cal.4th 901, 908; accord, Strickland v. 

Washington (1984) 466 U.S. 668, 686 [104 S.Ct. 2052, 80 L.Ed.2d 674].) “‘The burden 

of sustaining a charge of inadequate or ineffective representation is upon the defendant. 

The proof . . . must be a demonstrable reality and not a speculative matter.’” (People v. 

Karis (1988) 46 Cal.3d 612, 656.) There is a presumption the challenged action “‘might 

be considered sound trial strategy’” under the circumstances. (Strickland, at p. 689; 

accord, People v. Dennis (1998) 17 Cal.4th 468, 541.) 

 On direct appeal a conviction will be reversed for ineffective assistance of counsel 

only when the record demonstrates there could have been no rational tactical purpose for 

counsel’s challenged act or omission. (People v. Lucas (1995) 12 Cal.4th 415, 442; see 

People v. Mitcham (1992) 1 Cal.4th 1027, 1058 [“‘[i]f 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 contention [that counsel provided ineffective assistance] must 

be rejected’”].) Here, the rational tactical purpose for counsel’s failure to argue Agudelo 

did not harm or threaten to harm Amy as a mitigating factor is obvious. As the trial court 

observed, “This was not a mere touching. [Agudelo] had complete . . . sexual intercourse 

with a 12-year-old girl . . . .” Although Amy did not suffer great bodily injury and was 

not found to be the victim of forcible acts of sexual abuse, to suggest she was not harmed 

by Agudelo is absurd. (See People v. Simpson (1979) 90 Cal.App.3d 919, 926 [fact that 

defendant might have inflicted more harm than he did does not mean a circumstance in 

mitigation exists]; cf. People v. Thomas (1992) 2 Cal.4th 489, 531 [failure to make 

meritless objection does not constitute ineffective assistance of counsel].) Counsel 

wisely chose to focus on the evidence suggesting Agudelo’s behavior was aberrational 

instead of attempting to minimize the severity of the crime, which would have displayed 

a lack of contrition. 
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DISPOSITION 

 The judgment is affirmed. 

 PERLUSS, P. J. 

 We concur: 

 ZELON, J. 

 JACKSON, J.