Filed 6/17/24 P. v. Fernandez CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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). Th is opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, Plaintiff and Respondent,

v. ISAAC FERNANDEZ,

Defendant a nd Appellant. D083717

(Super. Ct. No. BAF2100800 )

APPEAL from a judgment of the Superior Court of Riverside County, Rene Navarro, Judge. Affirmed. Gene Vorobyov, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bont a, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Collette C. Cavalier and Maxine Hart, Deputy Attorneys General, for Plaintiff and Respondent.
Isaac Fernandez was convicted of moles ting his girlfriend’s twin seven

year
- old daughters and sentenced to consecutive indeterminat e terms. On appeal, he challenges both the conviction and the sentence.2

Fernandez claims the conviction must be reversed because the trial court erroneously in structed the jury with a patterned CALCRIM No. 1191B propensity instruction that resulted in prejudice. However, he acknowledg es this court is bound by the C alifornia Supreme Court ’s decision upholding a
similar instruction in People v. Villato ro (2 012) 5 4 Cal.4th 1152 ( Villatoro )

. As for the sentence, Fernandez c ontends the trial court violated the dual use prohibition in California Rules of Court, rule 4.425 (b) when deciding to impose consecutive terms

. Recognizing defense counsel forfeited the issue by fail ing to object , he as ks this court to overlook the forfeiture or, in the alternative, consider the issue as an ineffective assistance of counsel claim. Even if we overlook the forfeiture, Fernandez failed to demonstrate prejudice. We affirm the conviction and the sentence. FACTUAL AND PROCEDURAL BACKGROUND Fernandez lived with his girlfriend and her children , who viewed him as a father figure. On June 24, 2021, the mother of then seven

- year
- old twins
walked into her bedroom and observed what she thought was Fernandez inappropriately touching Jane Doe 1 under the covers

. A fter confronting Fernandez, who admitted the touching was inappropriate, and speaking with her daughter , t he mother called 911

. Later that day, the twins met with a child forensic interviewer. Jane
Doe 1 told the interviewer that Fernandez did “something disgusting” to her that “he’s not supposed to do to the kids

. ” She said i t started at the end of the first grade and happened more than once. He would kiss her on the li ps and pull down her pants and “pick [ ] ” her butt with his finger

. She said it h urt when his finger went in her “butthole” and that he would also touch her “boobs” and “pick” her “pee pee , ” which made it sting

.3

When Jane Doe 2 was interviewed , s he said Fernandez was doing “weird stuff” to her and her sister

. Fernandez kissed Jane Doe 2’s mouth and
touched her butt over her clothes

. A medical examination of Jane Doe 1 on the following day revealed discoloration in her anal area, which was consistent with repeated anal
trauma and could have been caused by penetration. Although she had no injuries in the vaginal area, the stinging sensation she described could have been caused by rubbing or friction inside the genital
vestibule

. At the trial , Jane Doe 1 recanted. After the prosecutor played the video of her forensic interview, she said she lied to her mother and to the forensic
interviewer. Jan e Doe 2 also initially denied appellant touched her inappropriately, but after the prosecutor played the video of her forensic interview, she admitted her original allegations and testified that Fernandez touched her butt multiple times and she did not like it

. She also testified
that she sometimes saw Fernandez touch Jane Doe 1’s butt in her bed at night. A jury convicted Fernandez of four felony counts : anal penetration of Jane Doe 1 (Pen. Code , 1 § 288.7, subd. (b), count 1), vaginal penetration of Jane Doe 1 (§ 288.7, subd. (b), count 2), lewd and lascivious acts on Jane
Doe 1 (§ 288, subd. (a), count 3), and lewd and lascivious acts on Jane Doe 2 (§ 288, subd. (a), count 4). As to counts 3 and 4, the jury also found true the allegations that the minors were under the age of 14 (§ 667.61, subd. (j)(2)) and the crimes were committed against multiple vic tims (§ 667.61,
subd. (e)(4)).

1 All further statutory references are to the Penal Code unless otherwise specified.4

The trial court imposed consecutive indeterminate terms of 15 years to life on counts 1 and 2, and 25 years to life on counts 3 and 4, for an aggregate term of 80 years to life. Fernandez filed a timely appeal. DISCUS SION
A. The trial court properly instructed the jury with CALCRIM No. 1191B Fernandez argues the trial court erred by instructing the jury with CALCRIM No. 1191B because it “allowed the jury to rely on proof of any charged crimes that Fernandez was dispo sed to commit” to find he committed the charged offenses. The trial court instructed the jury with the following patterned CALCRIM No. 1191B instruction :

“ The People presented evidence that the defendant committed the crimes of :

“ Count l: Anal Penetration of Jane Doe l

“ Count 2: Vaginal Penetration of Jane Doe 1

“ Count 3: Lewd and Lascivious Acts with Jane

Doe 1

“ Count 4: Lewd and Lascivious Acts with Jane

Doe 2

“ If the People have proved beyond a reasonable doubt that the defendant committed one or m ore of these crimes, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit sexual offenses, and based on that decision, also conclude that the defendant was likely to commit and did commit the o ther sex offenses charged in this case.

“ If you find that the defendant committed one or more of these crimes, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant i s guilty of another crime. The People5 must still prove each charge and allegation beyond a reasonable doubt.”

In Villatoro , t he California Supreme Court held a jury is permitted to draw a propensity inference from currently charged sex offenses and uphe ld the use of a similar jury instruction

. (See Vi llatoro , supra , 54 Cal.4th at

pp. 1166

– 1168 ; see also People v. Meneses ( 2019 ) 41 Cal.App.5th 63 , 68 .) We follow Villatoro and conclude the trial court properly instructed the jury with CALCRIM No. 1191B. ( Villatoro , at pp. 1166

– 1168; see Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [“Under the doctrine of stare decisis, all tribunals exercising inferior jurisdiction are required to follow decisions of courts exercising superior juri sdiction

. ”].)
Fernandez also argues the CALCRIM No. 1191B instruction violated his federal due process right “not to be convicted except based on proof beyond a reasonabl e doubt for each element of each separate charge. [Citations.]” He asserts that if Vi llatoro is reconsidered , the instruction was prejudicial under both the Chapman and Watson standards. (See Chapman v. California ( 1967) 386 U.S. 18 ( Chapman ) ; People v. Watson (1956)
46 Cal.2d 818 ( Watson ) .) Recognizing this court is bound by Villator o , Fernandez admittedly presents t his argument on appeal “ only to preserve it for consideration by the California Supreme Court and federal courts.” Although Fernandez ’s failure to object to the instruction at trial would
not result in forfeiture (s ee P eople v. Mitchell (2019) 7 Cal.5th 561, 579

– 580 [ “ failure to object to instructional error will not result in forfeiture if the substantial rights of the defendant are affected ”]) , t o the extent he asks us to revisit issues already decided in binding prece dent or properly posed to a different tribunal , we refrain from considering them. To the extent Fernandez’s federal due process argument w as not considered in Villatoro , we6

address it

. (See People v. Barr agan (2004) 32 Cal.4th 236, 243 [“ ‘[C]ases are

no t authority for propositions not considered.’ ”].) A permissive presumption “ affects the application of the ‘ beyond a
reasonable doubt ’ standard only if, under the facts of the case, there is no rational way the trier could make the connection permitted by the inference. ” ( Ulster County Court v. Allen (1979) 442 U.S. 140, 157; see also Francis v.
Franklin (1985) 471 U.S. 307, 314

– 315, [ “ A permissive inference violates the Due Process Clause only if the suggested conclusion is not one that reason
and com mon sense justify in light of the proven facts before the jury. ” ].)

“ [A] trier of fact could rationally infer (1) that a defendant who has previously sexually molested other young girls under similar circumstances has a disposition toward committing this type of offense, (2) that being predisposed to committing lewd and lascivious acts with children increases the likelihood of repeat offenses, and (3) that such a disposition increases the likelihood that he did commit the current offense, an offense suppor ted by considerable evidence of its own. ” (People v. Van Winkle (1999) 75 Cal.App.4th 133 , 143

– 144.)
T he inferences authorized by CALCRIM No. 1191B were not irrational , and the instruction did not compromise the jury ’s responsibility to convict
Fernand ez of the charged offenses based on proof beyond a reasonable doubt. All of the charges in this case involved acts of sexual molestation of his girlfriend’s twin seven

- year
- old daughters with whom he had the same relationship and similar day

- to

- day intera ctions. The conduct in th e offenses charged was sufficiently similar such that the jury could rationally infer from the determination he committed one charged offense that he had a propensity to commit, was likely to commit, and did commit, the others. C onsidering the facts and charged offenses in this case, we conclude the in ferences authorized7

b y the CALCRIM No. 1191B instruction did not violate Fernandez’s due process rights. 2
B. F ernandez waived his dual use argument Fernandez challenges his sente nce on grounds that the trial court
violated the prohibition against the dual use of sentencing factors . He claims
the court erred by p urportedly rel ying on the same aggravating factors used
to i mpose the upper term s for all four counts when it decided to impose the terms consecutively. (Cal. Rules o f Court, rule 4.425(b) [“Any circumstances in aggravation or mitigatio n

. . . may be considered in deciding whether to impose consecutive rather than concurrent sentences, except [ ] [¶]

. . . [a] fact used to impose the upper term ”].) However, “ c omplaints 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 ,” including arguments that the court “ d ouble

- counted a particular sentencing factor ” in the sentence. ( People v. Scott (1994) 9 Cal.4th 331 , 353, 356 .) “Routine defects in the court’s statement of reasons are easily prevented and corrected if called to the court’s attention.” ( Id. at p. 353

. ) The waiver rule applies only if the defendant had “ a meaningful opportunity to object ” to the trial court’s sentencing decision. ( Scott , supra , 9 Cal.4th at p. 356; accord People v. Gonzalez (2003) 31 Cal.4th 745 , 752.)
Fernandez had ample opportuni ty to object. A fter informing the parties of the sentence it intended to impose, the trial court specifically inquired whether counsel had any comments he wished to place on the record.

2 In the absence of instructional error, w e need not address Fernandez’s ancillary contention that the error was prejudicial under the C h apman and Watson standard s

.8

Fernandez ’s counsel declined to object or provide any comments ; he m erely
submitted and noted his previously filed Franklin motion

. 3 By failing to raise an object ion in the trial court , Fernandez forfeited the dual use sentencing issue

. ( S ee People v. D e Soto (1997) 54 Cal.App.4th 1, 7

– 8 [defendant waived argument conc erning dual

- use violation by failing to raise specific objection in the trial court].) C. T he trial court did not abuse its discretion in sentencing Fernandez Even if we overlook the forfeiture, we affirm the judgment of the trial
court. We will not d isturb a trial court ’s exercise of its “ broad discretion” ( People v. Clancey (2013) 56 Cal.4th 562, 579 ) unless its decision “is so irrational or arbitrary that no reasonable person could agree with it.” ( People v. Carmony (2004) 33 Cal.4th 367, 377 .) At the outset of sentencing, the trial court informed the parties it intended to sentence Fernandez in accordance with the One Strike law in
section 667.61 and then proceeded to correctly set forth t he statutory bases for its denial of probation and for th e imposition of the required prison terms for each of the four count s

. The One Strike law sets forth a harsher
alternative sentencing scheme for certain felony sex offenses crimes

. (See
In re Vaquera (2024) 15 Cal.5th 706, 7 1 3 ( Vaquera ).) Th e sentencing scheme
is “ subject to exceptions added by the Chelsea King Child Predator Prevention Act of 2010 (Stats. 2010, ch. 219, § 16) ( Chelsea ’ s Law), ” which require increased punishments when the prosecution has pled and proved a One Strike circumstance involvin g a minor victim. ( Ibid .; s ee § 667.61, subds. (j) , (l) , (m) .)

3 On August 26, 202 2 , the trial court held a Franklin hearing and forwarded the requested documents in a sealed envelope to the Department of Corrections. (See People v. Franklin (2016) 63 Cal.4th 261 ( Franklin ) [early parol e consideration for youthful offenders])

. )9

As to counts 1 and 2 (anal and vaginal penetration of Jane Doe 1), the

court explained: “As the defendant has been convicted by a jury of two counts
of Penal Code Section 288.7 [, subd ivi s ion ] (b), sexual penetration of a child 10 years of age or younger, the Court finds as a matter of law that said counts come within the meaning of Penal Code section 289, which defines sexual penetration.” 4 Subdivision (b) of section 288.7 states “[a] ny p erson 18 years of age or older who engages in . . . sexual penetration, as defined in Section 289 , with a child who is 10 years of age or younger is guilty of a felony and shall be punished by imprisonment in the state prison for a term of 15 years to life .” (Italics added.) Thus, the trial court was required to impose 15 years to life terms for counts 1 and 2

. As to counts 3 and 4 (lewd and lascivious acts on Jane Doe 1 and Jane
Doe 2 in violation of section 288, subdivision (a) ) , the court correctly observed the jury’s guilty verdicts coupled with the ir finding true the additional allegation s ( the respective victims were under the age of 14 and the crimes
were committed against more than one victim ) “bring the convictions for said counts within the pr ovisions of Penal Code Section 667.61 [, subdivisions] (c)(8) and . . . (j)(2)

. ” S ubdivision (j)(2) provides for a sentence of 25 years to life for “[a] person who is convicted of an offense specified in subdivision (c) [including a “[l]ewd or lascivious act in violation of subdivision (a) of Section 288” ] and under one of the circumstances specified in subdivision (e) , upon a victim who is a child under 14 years of age.” Subdivision (e)(4) applies
in this case as Fernandez had been convicted “ in the pres ent case . . . of

4 Section 289 defines “ ‘ sexual penetration ’ ” as “ the act of causing the penetration, however slight, of the genital or anal opening of any person or causing another person to so penetrate the defendant ’ s or a nother person ’ s genital or anal opening for the purpose of sexual arousal, gratification, or abuse by any foreign object, substance, instrument, or device, or by any unknown object. ” (§ 289, subd. (k)(1).)10

committing [a specified] offense

. . . against more than one victim.” (§ 667.61,
subd. (e)(4).) Thus, t he One Strike law required the trial court to impose
2 5 years to life terms for counts 3 and 4

. (See Vaquera , supra , 15 Cal.5th at

p

. 723 [ provisions of the One Strike law are mandatory when properly pled and proved ].) In addition to determining the statutorily required prison terms, the
trial court exercised its discretion t o impose consecutive sentences

. ( § 669, subd. (a); People v. Felix (2000) 22 Cal.4th 651, 655

. ) The trial court understood the scope of its discretion and exercised it in a reasoned manner

. It recognized that, “[i] n imposing consecutive sentences,

. . . [t] he Court

. . . is not unrestrained in its exercise of fact finding, but rather guided by the Rules of Court for making sound discretionary decisions based on relevant factors in light of general sentencing objectives when imposed in a prison commitment taking into consideration the totality of the circumstanc es .” The

court informed the parties that “ in deciding to impose consecutive sentences , [it] ha [d] read and considered the following Rules of Court in light of the evidence adduced at trial together with the reasonable inferences to be drawn therefrom: Ru le 4.409, Consideration of Relevant Factors; Rule 4.410, General Objectives in Sentencing; Rule 4.421, Circumstances in Aggravation, factors relating to the crime and to the defendant; Rule 4.423, Circumstances in mitigation, factors relating to the crime and the defendant and in addition thereto Subdivision (c) other relevant factors; Rule 4.424, consideration of applicability of Penal Code Section 654; Rule 4.425, Factors affecting concurrent or consecutive Sentences. ” The “[ r ] elevant factors enumerated in
these rules must be considered by the sentencing judge, and will be deemed to have been considered unless the record affirmatively reflects otherwise.” ( Cal. Rules of Court, rule 4.409 .)11

Fernandez contends the court violated the dual use prohibition in California Rules of Court, rule 4.425 5 by imposing consecutive sentences “based only on factors already used to enhance [the] sentence and that are
elements of the crime of conviction

. ” He claims the court improperly rel ied on the victims’ age, that t here were multiple victims, and the court’s finding that
the crimes were serious and violent felonies under sections 667.5 and 1192.7 as the basis for its decision to impose consecutive terms

. Fernand ez asserts remand for resentencing is warranted because “ the trial court identified no other, valid factors supporting imposition of a consecutive sentence

. ”
The record re veals the court expressly considered and relied upon factors that weighed in favor of consecutive sentencing , aside from the victims’ age , offenses against multiple victims, or the court’s finding that the crimes were serious and violent felonies

. The court found “as to each count
that the violent and serious sex crimes . . . occurred on separate occasions.” More specifically, i t “found f rom the evidence adduced at trial and the reasonable inferences to be drawn therefrom that defendant committed multiple offenses against two, seven

- year
- old twins on different

5 California Rule s of Court, rule 4.425 provid es: “ Factors affecting the decision to impose consecutive rather than concurrent sentences include: [¶] (a) Facts relating to crimes . . . including whether or not: [¶] (1) The crimes and their objectives were predominantly independent of each other; [¶] (2) The crimes involved separate acts of violence or threats of violence; or [¶] (3) The crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberra nt behavior. [¶] (b) Other facts and limitations [¶] Any circumstances in aggravation or mitigation, whether or not the factors have been stipulated to by the defendant or found true beyond a reasonable doubt at trial by a jury or the judge in a court trial, may be considered in deciding whether to impose consecutive rather than concurrent sentences, except: [¶] (1) A fact used to impose the upper term; [¶] (2) A fact used to otherwise enhance the defendant ’ s sentence in prison or county jail under section 1170[, subdivision] (h); and [¶] (3) A fact that is an element of the crime. ”12

occasions[,]

. . . including the vaginal, anal and touching of the breasts of

on e . . . and the touching of the butt and kissing on the mouth of the
other

. . . . ” It also found Fernandez “had more than ample and reasonable
time and opportunity to reflect on his conduct and nevertheless resumed repeated sexual assaultive conduct on t he seven

- year
- old twins respectively.”
The court’s comments fall squarely within an enumerated fact relating to the crimes that may be considered when imposing consecutive sentences

— “[t]he crimes were committed at different times . . ., rather than bei ng committed so closely in time and place as to indicate a single period of
aberrant behavior.” (Cal. Rules of Court, ru le 4.425(a)(3) .)
The court also found Fernandez’s conduct to be “morally corrupt and criminally condemnable and deplorable,” and not ed “[t]he record in this case reflects [Fernandez] inserted himself into a household and assumed the position of a father figure to the victim twins all the while exploiting that position of trust to satisfy his personal desires.” These comments are
suppo rted by the record and track [California Rules of Court , ]
rule 4.421(a)(11) , which permits the court to consider circumstances in aggravation including that “defendant took advantage of a position of

trust

. . . to commit the offense

. ” “O nly one criteri on or factor in aggravation is necessary to support a
consecutive sentence

. ” ( People v. Davis (1995) 10 Cal.4th 463, 552 .) The court’s finding that Fernandez took advantage of his position of trust to sexually molest his girlfriend’s twin daughters is su fficient to support the court’s decision to impose consecutive sentences, as is the court’s finding that
the crimes were committed at different times. ( See People v. Scott (2015)
61 Cal.4th 363 , 405 [ no Sixth Amendment violation when a trial judge makes
f actual findings necessary for the imposition of consecutive terms ].)13

Considering the trial court ’s recitation of these additional factors within the context of the entire sentencing record underscores Fernandez’s myopic reading of the reco rd

. T o the ex tent the trial court may have
articulated an impermissible factor among the multiple factors for its discretionary decision to impose consecutive sentencing, remand is not
warranted unless it is reasonably probable that a more favorable sentence
would othe rwise have been imposed. (See People v. Avalos (1984) 37 Cal.3d 216, 233 (

Avalos ) [applying the Watson standard to an improper dual use of facts] .) F ernandez has not demonstrated such a reasonable probability , and the court’s explanations serve to forecl ose such a probability. Given this record, there is no reasonable probability that the court would impose

concurrent sentences , and we conclude any error was harmless under
Watson

. It is reasonably certain that if the matter were to be remanded for

resen tenc ing, the tr ial court would properly reach the same result by merely
omit ting any reference to the facts listed in California Rules of Court,
rule 4. 425(b) and citing the additional factors as a basis for its consecutive

sentence

. (See People v. Willia ms (1986) 180 Cal.App.3d 57 , 62.)
D. Fernandez failed to establish ineffective assistance of counsel In the alternative, Fernandez asks us to consider his counsel’s failure to object as an ineffective assistance of counsel claim

. In order to establish ineffective assistance of counsel, Fernandez bears the burden to demonstrate , by a preponderance of the evidence ( People v. Ledesma (1987) 43 Cal.3d 171,
218 ( Ledesma ) ) , “both that trial counsel failed to act in a manner to be expected of reasonably compe tent attorneys acting as diligent advocates, and that it is reasonably probable a more favorable determination would have resulted in the absence of counsel ’ s failings. ” ( People v. Price (1991) 1 Cal.4th 324, 440 ( Price ) ; see also Strickland v. Washington (1984) 466 U.S. 668, 688 .)14

Prejudice must be based on facts in the record ( People v. Tilley (2023)
92 Cal.App.5th 772 , 778) and “established ‘ “as a ‘ demonstrable reality ,’ not simply speculation as to the effect of the errors or omissions of counsel. ” ’ ” ( People v. Montoya (2007) 149 Cal.App.4th 1139, 1151.) As discussed previously, Fernandez failed to demonstrate a reasonable probability that, absent the alleged errors by the court and counsel , the result would have been different. ( See Ledesma , s upra , 43 Cal.3d at pp. 217

– 218 .) In the absence of prejudice, we need not analyze whether defense counsel’s performance was deficient. ( In re Fields (1990) 51 Cal.3d 1063, 1079.) 6

6 We note defense counsel does not render ineffective assistance by declining to make a futile objection

. (See Price , supra , 1 Cal.4th at p. 387 .) Here, defense cou nsel submitted to the court’s intended sentence by noting his previously filed Franklin motion ; he could have reasonably believed any realistic hope of reducing his client’s prison time rested on his future youthful offender arguments to the parole board.15 DISPOSITION The judgment is affirmed.

KELETY, J.

WE CONCUR:

M cCONNELL, P. J.

RUBIN, J.