Filed 3/27/13 P. v. Agudelo CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

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, Da ne R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistan t Attorney General, Mary Sanchez and David Zarmi, Deputy Attorneys General, for Plaintiff and Respondent

__________ ____________2 A jury convicted Asdrubal Agudelo of le wd and lascivious conduct with a child under 14 years old. Evidence at trial in cluded recorded telephone calls between the victim, Amy D., and Agudelo, which were in itiated by police after Am y had reported the abuse to her mother. Telling Agudelo the poli ce 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 misc onduct had occurred. On appeal Agudelo

contends the trial court erred in instructi ng the jury regarding adoptive admissions and abused its discretion in sentencing him to the up per term of eight years. He also contends he received constitutionally ineffective assist ance from his trial counsel. We affirm.

FACTUAL AND PROCED URAL BACKGROUND

1. The Charges Agudelo was charged by amended inform ation with two counts of lewd and

lascivious conduct with a child under 14 years old (Pen. Co de, § 288, subd. (a)) (counts 1 and 2), 1 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 a ggravated sexual assault of a child under 14 years old and seven or more y ears younger than the perpetrator (§ 269, subd. (a)(1)) (count 5). After c ounts 1 and 3 were dismissed in the furtherance of justice (§ 1385), Agudelo pleaded not gui lty 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 an d Amy’s mother stopped dating in early 2007, they remained friends. Amy continued to s ee Agudelo and his son, Omar, two to three times a week. Amy called Agudelo “Pa.” In June 2007 Agudelo told Amy’s mo ther he was going to take Amy, then 10 years old, shopping for a graduation dre ss. Instead, Agudel o took Amy to his apartment where he pulled her on to the bed and penetrated he r 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 soci al worker she should interview Amy to determine if she had been sexually abused be cause 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 pick ed 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 give n 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 an ything 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 arra nged an interview. Agudelo subsequently retain ed an attorney, who resche duled the interview. The day before the interv iew 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?4 “[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 everyt hing. 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’v e 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 sh e should do if the authorities gave her a physical examination—“a sex exam, Pa”—Agud elo 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: “Everythi ng 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 th em 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 ju st once, they’ll throw me in jail for life! At once!” Amy asked, “Do I have to lie?” Agudelo responde d, “Yeah.” Amy conf irmed, “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 as king if she should lie, and Agudelo began to get suspicious, asking who was with Amy. During the second call Amy told Agudel o the police were meeting with her mother and Amy had told th e police she and Agudelo had sex once because Agudelo had5 not told her what to say. Agudelo exclaimed, “Not th at Amy. You can’t Amy.” Eventually, Agudelo asked if someone wa s 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 treat ed her like a daughter, but she would lie to get what she wanted. In November 20 09 Amy was upset Gomez had broken up with her. She wrote the letter telling Gomez he wa s 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, especia lly with Gomez, and had taken her places

without her moth er’s consent. Agudelo also presented the testimony of several witnesses. Gomez testified Amy and Agudelo had a father-daughter relations hip, Gomez had never observed any sexual nature to their relationship and Agudelo wa s careful to allow Am y 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 gatherin g she had attended with him and Agudelo had a reputation for telling the truth. Dr. Hy Maline k. a clinical psychologist, testified he and

another doctor who administ ered psychological tests did not find evidence of sexual deviance or pedophilia: If the al leged conduct had occurred, th e incidents appear to have been isolated, situational and impuls ive acts separated by two years.

3. The Jury Instruction Concerning Adoptive Admissions

The trial court informed counsel it inte nded to instruct the jury on adoptive admissions “because, based on my reading of the law, I have a sua spon te duty to include it if there is anything . . . the jury could find is an adoptive admi ssion.” Overruling the prosecutor and defense counsel’s general ob jections and finding the instruction was6 warranted “based on the ev idence,” the court instruct ed the jury with CALCRIM No. 357: “If you conclude th at someone made a statement outside of court that accused

the defendant of the crime or tended to conn ect 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 de fendant or made in his presence. [¶] The

defendant heard and understood the statement. [¶] The de fendant would, under all the circumstances, naturally have denied the stat ement 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 concl ude 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 an d lascivious conduct with a child under 14 years old, but was unable to reach a verd ict on the remaining charges of lewd and lascivious conduct by force and aggravated sexual assault. At the sentencing hearing defense counsel contended Agudel o should be sentenced to the low term of three years. (§ 288, subd. (a).) Counsel argued severa l witnesses had testified Agudelo was a kind father, there were no other incidents of se xual misconduct and the psychological testing demonstrated there was a very low risk of future dangerousness. In sentencing Agudelo to th e 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 ha d a life that was filled with turmoil based on her relationship with her mother. You took a dvantage 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 ba sed 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 a7 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 Instruct ed 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 be fore the court, and which are necessary for the jury’s unders tanding of the case.’”’” ( People v. Valdez (2004) 32 Cal.4th 73, 115.) Ho wever, “[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 cl aim of instructional error, ‘we must view a challenged portion “in the context of the inst ructions as a whole and the trial record” to

determine “‘whether there is a reasonable likelihood that the ju ry has applied the challenged instruction in a way’ th at violates the Constitution.”’” ( People v. Jablonski (2006) 37 Cal.4th 774, 831; see Guiton , at p. 1130 [error in givi ng instruction that has no application to facts reviewed und er harmless error standard in People v. Watson (1956) 46 Cal.2d 818].) Agudelo contends the trial court has no sua sponte du ty to instru ct on adoptive admissions. He further argues the instruction was not supported by substantial evidence

because the record is clear he vehe mently 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 cert ainly instruct on the matter if [it] think[s] it best to do so.” ( People v. Carter (2003) 30 Cal.4th 1166, 1198.) Mo reover, contrary to Agudelo’s characterization of the record, the trial cour t properly determined the instruction was warranted by the evidence. Du ring the first call with Amy, before he became suspicious it was being recorded, Agudelo repeatedly to ld 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 someth ing about Agudelo, he twice responded he would be thrown in jail. In addition, wh en Amy suggested she tell the police she and8 Agudelo “had sex just once,” his response, fa r 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 th e instruction. It was well w ithin the provin ce of the jury to decide whether Agudelo was telling the trut h when he later expl ained he simply was afraid he would get in trouble for failing to properly supervise Amy.

2. Agudelo Has Forfeited His Cl aim of Sentencing Error Courts have broad sentenci ng discretion, and we review a trial court’s sentencing

choices for abuse of that discretion. We w ill 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 cour t abuses its discretion if it relies upon circumstances that are not relevant to, or th at 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 prob ation report, evidence introduced at the sentencing hearing and “any other factor reas onably related to the sentencing decision” (California Rules of Court, rule 4.420(b)), 2 and “shall select the term which, in the court’s discretion, best serves the interests of jus tice” (§ 1170, subd. (b )). The existence of a single aggravating circumstance is legally suffi cient 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 aggr avating factors Amy’s vulnerability and the fact Agudelo took advantage of a position of tr ust 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 pa rticularly vulnerable

2 References to rule or rules ar e 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 distin ctively worse than the ordinary”].) Agudelo also argues the trial court failed to consid er 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 ag ainst 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 testif ied what an important influence Agudelo had been on his life; several frie nds and professional associat es vouched for his honesty, dependability and work et hic; and the psychological report s found him to be low risk for

future offense. Agudelo has forfeited his claim of erro r by failing to object at the time of sentencing that the court had no t fully considered all relevant factors. “Ordinarily, an appellate court will not consider a claim of er ror if an objection c ould have been, but was not, made in the lower court. [Citation.] Th e reason for this rule is that ‘[i]t is both unfair and inefficient to permit a claim of erro r 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) doctr ine applies to claims the trial court failed to properly make a discretionary sentencing choice. ( People v. Scott (1994) 9 Cal.4th 331, 356 [“complaints ab out the manner in which the trial court exercises its sentencing discretion and articulat es 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 st ate 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 cl aims involving the trial court’s failure to properly make or articulate its discretionary se ntencing choices. Included in this category are cases in which the stated reasons allegedl y do not apply to the particular cases, and case in which the court purportedly erred because it double-counted a particular10 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 ch arged with understanding, advocating, and clarifying permissible sentencing choices at the hearing. Ro utine defects in the court’s statement of reasons are easily prevented and co rrected 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 se ntencing claim because he presented to

the trial court the factors he believed warra nted 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 c ourt were inherent in any case of lewd

conduct with a child under 14 , an argument palpably with out 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 ineff ective assistance of counsel clai m, that he exercised caution not to harm Amy and no phy sical 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 f iled 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 Hi s Counsel Was Ine ffective 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 mitiga ting factor Amy was neither harmed nor threatened (rule 4.4 23(a)(6)). To establish ineffec tive assistance of counsel, a defendant must demonstrate that “(1) coun sel’s representation was deficient in falling below an objective standard of reasonabl eness under prevailing professional norms, and (2) counsel’s deficient represen tation subjected the petitioner to prejudice, i.e., there is a reasonable probability that, but for counsel’s failings, the re sult would have been more11 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 in effective representation is upon the defendant. The proof . . . must be a demonstrable r eality 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 strate gy’” under the circumstances. ( Strickland, at p. 689; accord, People v. Dennis (1998) 17 Cal. 4th 468, 541.) On direct appeal a conviction will be reve rsed for ineffective assistance of counsel only when the record demonstrat es 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 un less there simply could be no satisfactory explanation” [citation], the contention [that co unsel provided ineffective assistance] must be rejected’”].) Here, the rational tactical purpose for counsel’s failure to argue Agudelo

did not harm or threaten to ha rm Amy as a mitigating factor is obvious. As the trial court observed, “This was not a mere touching. [A gudelo] 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 th an 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 ineff ective assistance of counsel].) Counsel wisely chose to focus on th e 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.12 DISPOSITION The judgment is affirmed.

PERLUSS, P. J.

We concur:

ZELON, J.

JACKSON, J.