Filed 11/4/21 P. v. Ruiz CA5

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

JESUS RUIZ,

Defendant and Appellant.

F079808

(Super. Ct. No. 18CR-02888)

OPINION

APPEAL from a judgment of the Superior Court of Merced County. Jeanne 

Schechter, Judge.

Audrey Rene Chavez, under appointment by the Court of Appeal, for Defendant 

and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and John 

Merritt, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-
2.

INTRODUCTION

Between January 2011 and September 2015, defendant Jesus Ruiz sexually abused 

his stepdaughter multiple times, commencing when she was five years old. A jury 

convicted defendant of sexual penetration of a child under 10 years old (three counts) and 

oral copulation with a child under 10 years old (one count). The trial court sentenced 

defendant to a total term of 60 years to life in prison. On appeal, defendant contends 

(1) the trial court abused its discretion in denying his motion for mistrial due to the 

prejudice created when his ex-wife testified that she was “underage” when their 

relationship began, and (2) we should remand for resentencing because the trial court 

failed to exercise discretion when it imposed consecutive sentences on all counts because 

it erroneously believed consecutive sentences were mandatory. We disagree and affirm.

PROCEDURAL BACKGROUND

Originally charged by complaint, defendant was held to answer after his

preliminary hearing on August 16, 2018. On August 31, 2018, the Merced County 

District Attorney filed an information charging defendant with four counts of engaging in 

oral copulation or sexual penetration with a child 10 years old or younger (Pen. Code, 

§ 288.7, subd. (b);

1 counts 1–4),2 and committing a lewd act upon a child under 14 years 

old (§ 288, subd. (a); count 5). Each count also alleged that the charged crime was a

violent felony within the meaning of section 667.5, subdivision (c) and a serious felony 

within the meaning of section 1192.7, subdivision (c).

Defendant pled not guilty to the charges.

After a six-day trial, on July 19, 2019, the jury convicted defendant of counts 1

through 4 and acquitted him of count 5.

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

2 Counts 1 and 2 involved sexual penetration, count 3 involved oral copulation, and count 4 

involved both.
3.

On August 16, 2019, the court denied probation and sentenced defendant to

consecutive terms of 15 years to life on each of counts 1 through 4, for a total term of 

60 years to life in prison.

3

 The court imposed a $10,000 restitution fine (§ 1202.4, 

subd. (b)), a stayed $10,000 parole revocation restitution fine (§ 1202.45, subd. (a)), 

$160 in court operations assessments (§ 1465.8, subd. (a)), and $120 in conviction 

assessments (Gov. Code, § 70373).

4

Defendant timely appealed that same day.

FACTS

Blanca S. was pregnant with Y.S. when she met and moved in with defendant in 

2005.5 After Y.S. was born, Blanca had two children with defendant. In 2015, Blanca 

noticed Y.S.’s behavior had changed, and Blanca questioned defendant about it. When 

defendant admitted he had been touching Y.S., Blanca called the sheriff’s department and 

reported him.

Y.S. testified that defendant was her stepfather. When she was approximately six 

years old and in kindergarten or first grade, he started touching her. He used his hands to

touch her vagina both inside and out. She estimated defendant touched her like that more 

than 25 times, the last time when she was 9 or 10 years old. The trial court admitted 

Y.S.’s 2015 interview into evidence and the prosecutor played the interview for the jury. 

Y.S. was nine years old at the time of the interview. She told the interviewer that 

defendant touched her private parts. The first time it happened, she had been asleep, and 

someone took off her pants and touched her vagina with their hand and mouth. When she 

woke up, defendant admitted that he had done it. Defendant touched her vagina with his 

3 Defendant’s abstract of judgment does not reflect consecutive sentences.

4 The court reserved a finding on the amount of restitution. (§ 1202.4, subd. (f).)

5 Although there was no testimony as to the year Blanca met defendant, later evidence 

showed that Y.S. was born in January 2006, and Y.S. was 13 years old at the time of the trial.
4.

hand several other times as well. The last time he did it, Blanca told him to get out of the 

house.

Defendant was interviewed about his sexual abuse of Y.S. in 2018. The court 

admitted the videotaped interview into evidence and the prosecutor played it for the jury. 

Defendant said he had lived with Y.S., Blanca, and their two children until approximately 

two years before. He left after admitting to Blanca that he had been sexually abusing 

Y.S. Defendant said that he touched Y.S.’s vagina approximately three times over a

period of one month when she was eight or nine.

Defendant was out of work and caring for the children while Blanca was at work 

during the day. According to defendant, each time he touched Y.S., she was asleep in the 

bedroom he shared with Blanca. He touched Y.S. under her clothing and put one finger 

into her vagina. The second time, defendant also put his tongue into her vagina. 

Defendant felt sexually excited and his penis became hard each time he touched Y.S. 

During the interview, defendant wrote a letter to Y.S. asking her to forgive him for what 

happened.

The defense waived opening argument and did not present any evidence.

DISCUSSION

I. The trial court did not abuse its discretion when it denied defendant’s motion for 

mistrial.

Defendant contends he was denied his rights to due process and a fair trial because 

the trial court denied his motion for mistrial after Blanca testified that she was underage 

when she lived with defendant. Acknowledging that the court immediately struck the 

testimony and admonished the jury to disregard, defendant argues that these actions were 

insufficient in light of the prejudicial effect of the statement. The People argue that the 

court’s actions cured any error. We agree with the People.
5.

A. Background

On July 10, 2019, defendant filed a motion in limine to preclude Blanca from 

testifying that she was under 18 years old when she began dating him. The court granted 

the motion and asked the prosecutor to advise Blanca of the ruling. During Blanca’s 

cross-examination, defense counsel questioned her about the various residences she 

shared with defendant. While responding, Blanca said, “... I was still underage.” The 

court immediately instructed, “That last statement will be stricken, and the jury is not to 

consider it for any reason.”

After Blanca and Y.S. completed their testimony, defendant moved for a mistrial 

based upon Blanca’s reference to being underage while dating defendant. The court 

denied the motion as follows:

“Well, I did notice ... [defense counsel] actually didn’t even lodge 

an objection at that point. But the Court decided on its own motion to 

strike it, considering the Court’s ruling, and the Court did that as its effort 

to cure any possible prejudice that could possibly occur.

“[I]t ... seemed to the Court it was an isolated statement, just 

underage—I’m not even quite sure what [Blanca] meant or really what the 

statement was intended to mean unless it was just a way of her 

remembering where she was at particular points. And all she said was, ‘We 

moved because I was underage,’ if I recall correctly.

“We don’t know how much underage. She could have been 17-anda-half, which, you know, really isn’t—I mean, nowadays, it seems like it’s 

not that uncommon. So I just don’t think that it really rises to the level or 

that it’s so prejudicial that it requires a mistrial at this point. They were 

admonished not to consider it, and I’m going to presume the jury is going 

to follow the Court’s instructions. So—as long as there’s no further 

reference to that issue.”

During final instructions to the jury, the court instructed, “If I ordered testimony 

stricken from the record, you must disregard it and must not consider that testimony for 

any purpose.”
6.

B. Law and Standard of Review

“ ‘A mistrial should be granted if the court is apprised of prejudice that it judges 

incurable by admonition or instruction. [Citation.] Whether a particular incident is 

incurably prejudicial is by its nature a speculative matter, and the trial court is vested with 

considerable discretion in ruling on mistrial motions. [Citation.]’ [Citation.] A motion 

for a mistrial should be granted when ‘ “ ‘a [defendant’s] chances of receiving a fair trial 

have been irreparably damaged.’ ” ’ ” (People v. Collins (2010) 49 Cal. 4th 175, 198.) 

We review the trial court’s denial of a motion for mistrial for abuse of discretion. (See 

id. at pp. 198–199.)

C. Analysis

Defendant argues that evidence of defendant’s involvement with Blanca when she 

was under 18 years old permitted the jury to infer that he was habitually involved in 

inappropriate sexual activity with minors. We agree with the trial court that Blanca’s 

reference to her age was ambiguous enough so as not to invite the jury to infer this was 

evidence that defendant was habitually involved with prepubescent girls as charged in the 

instant offense.

First, Blanca’s reference to being underage suggested she was relatively close to 

being 18 years old; she testified that she was pregnant with Y.S. when her relationship 

with defendant began and that she had two other children thereafter. In these 

circumstances, it is unlikely that the jury concluded Blanca was only six to nine years old 

when her relationship with defendant commenced. Defendant’s relationship with a 

pregnant teenager was not likely to suggest that defendant was sexually attracted to 

prepubescent children and thus more likely to have committed the crimes in this case.

Second, the trial court struck the testimony and admonished the jury not to 

consider it. We presume the jury followed the court’s instructions. (People v. Avila

(2006) 38 Cal.4th 491, 574 [admonishment to disregard was sufficient to minimize 

prejudice where witness referred to the defendant as recently being in prison; 
7.

admonishment of limited purpose of use was sufficient where witness testified the 

defendant was crazy].)

“Moreover, it is only in the ‘exceptional case’ that any prejudice from an 

improperly volunteered statement cannot be cured by appropriate admonition to the jury. 

(People v. Allen (1978) 77 Cal.App.3d 924, 935; see People v. Navarrete (2010) 

181 Cal.App.4th 828, 836 [‘a trial court can almost always cure the prejudice of an 

improperly volunteered statement by granting a motion to strike and charging the jury 

with an appropriate curative instruction’].)” (People v. Franklin (2016) 248 Cal.App.4th 

938, 955; see id. at p. 956 [finding three “vague and fleeting references” to a defendant’s 

criminal history did not result in incurable prejudice to that defendant’s chance of 

obtaining a fair trial].) Further, this case was not particularly close as defendant admitted 

his sexual misconduct to Blanca and to an officer during his videotaped confession. 

Additionally, Y.S. testified to the abuse, and her detailed 2015 videotaped interview was 

admitted into evidence as was defendant’s videotaped confession. Under these 

circumstances, the testimony by Blanca that she was underage did not irreparably damage 

defendant’s chances of receiving a fair trial. (See People v. Bolden (2002) 29 Cal.4th 

515, 555.)

Defendant argues that this is one of the exceptional cases, involving prejudicial 

sex offenses against a very young child, citing People v. Bentley (1955) 131 Cal.App.2d 

687, 690–691 (Bentley), which was overruled on other grounds in People v. White (1958) 

50 Cal.2d 428, 430–431. Defendant’s reliance on Bentley is misplaced. In that case, the 

defendant was convicted of sexually molesting a young girl. (Bentley, at p. 688.) During

his trial, a police officer deliberately and improperly disclosed to the jury that the 

defendant had been a suspect in a similar case some years earlier. (Id. at p. 689.) The

prosecution’s evidence in Bentley was not overwhelming, and the point on which the 

officer improperly testified was far more prejudicial than the improper testimony was 

here. Unlike in this case, in Bentley there was no ambiguity that the defendant had 
8.

previously been accused of molesting a very young girl. We do not view Bentley as 

sufficient authority to persuade us to depart from the rule in more recent cases that a 

prompt admonition is sufficient to cure the problem in all but the exceptional case.

Also, the usefulness of the prejudice analysis conducted by the Bentley court is 

doubtful as it predated the statutory changes that made prior uncharged sexual offenses 

admissible under Evidence Code section 1108. (See Stats. 1995, ch. 439, § 2.) In 

concluding the defendant did not receive a fair trial, Bentley relied greatly on the harmful 

effect of alleged prior uncharged sexual offense evidence. (Bentley, supra, 

131 Cal.App.2d at pp. 690–691.) In addition, the harmful testimony in Bentley involved 

an intentional effort by a law enforcement witness to place prejudicial information about 

the defendant before the jury. (Id. at p. 690.) In this case, the trial court noted Blanca’s

testimony was inadvertent and occurred during defense questioning, and the court 

accepted the prosecutor’s description of the admonishments the witness had received 

prior to testifying.

Defendant’s reliance on People v. Navarrete, supra, 181 Cal.App.4th 828 is 

similarly misplaced. In Navarrete, the defendant was charged with committing a lewd 

act on a four-year-old child, and the trial court granted the defense motion to suppress 

any reference to the defendant’s confession. (Id. at pp. 830, 831.) Upset with the court’s 

ruling, one of the detectives “promised he ‘was going to show’ the court.” (Id. at p. 832.) 

During the detective’s testimony, he referenced the court’s ruling which implicated the 

defendant’s confession. (Id. at p. 831.) Although the trial court struck the testimony and 

gave a curative instruction to the jury (id. at pp. 831–832), the appellate court reversed, 

concluding it an “ ‘exceptional circumstance’ ” where a curative instruction could not 

adequately cure the prejudicial effect on the jury of learning that a defendant had 

confessed: “A jury’s belief that a defendant may have confessed eviscerates the 

presumption of innocence.” (Id. at pp. 836, 834.) In this case, the offending testimony 

could not be construed as a confession.
9.

The trial court did not abuse its discretion in denying defendant’s motion for a 

mistrial. Blanca’s unsolicited testimony regarding her age when she started dating 

defendant was followed by the trial court’s direct and pointed admonition regarding the 

unresponsive testimony. We find no incurable prejudice from Blanca’s testimony and, 

therefore, the trial court did not abuse its discretion in denying defendant’s motion for 

mistrial.

II. Although the trial court believed consecutive terms were mandatory, the court 

clearly indicated it would impose consecutive terms even if it had discretion not

to do so.

A. Background

At the sentencing hearing, the trial court asked for the parties’ positions on 

whether the terms for counts 1 through 4 should be imposed consecutively or 

concurrently to each other. The prosecutor advised the court that she believed the counts 

were required to be consecutive. The court said it had not found authority requiring 

consecutive sentences, and the prosecutor referred the court to section 667.6.6 The court 

reviewed the statute and said, “I don’t think [section 288.7] is one of the qualifying 

defenses [sic] for that section.” The court acknowledged that section 667.6 does not 

explicitly list section 288.7, but then it held that section 667.6 applied because the 

conduct proved at trial fell within the parameters of the offenses listed in section 667.6, 

subdivision (e).

Even though it found the statute mandated consecutive terms, the court also stated:

“In the event that [section 667.6] doesn’t [require consecutive 

terms], the Court did take a look at [California Rules of Court, rule] 4.425, 

and the Court does make a finding that these crimes were committed at 

different times, at separate occasions that occurred over the course of 

6 Section 667.6, subdivision (d) mandates consecutive terms for specified offenses if the 

crimes involve separate victims or involve the same victim on separate occasions. 

Subdivision (c) of section 667.6 permits a court to order consecutive terms even where they 

involve the same victim on the same occasion.
10.

several years. This isn’t just a single period of abhorrent[7] behavior. And 

the court makes that finding as well with respect to [section] 667.6, but I 

know the Court needs to make that finding under that code section.

“But the court also notes that because this did occur over the course 

of several years, [defendant] had ample time to reflect upon his actions yet 

he still resumed molesting the victim. She was very, very young, very 

vulnerable, and he took such advantage of the position of trust; that the 

Court does feel that consecutive sentences [are] appropriate.”

B. Law and Standard of Review

We review a trial court’s decision to impose consecutive terms for abuse of 

discretion. (People v. Shaw (2004) 122 Cal.App.4th 453, 458.)

Where “the record shows that the trial court proceeded with sentencing on the 

erroneous assumption it lacked discretion”—in this case, the discretion to choose 

between concurrent and consecutive terms—“remand is necessary so that the trial court 

may have the opportunity to exercise its sentencing discretion at a new sentencing 

hearing.” (People v. Brown (2007) 147 Cal.App.4th 1213, 1228.) “Defendants are 

entitled to ‘sentencing decisions made in the exercise of the “informed discretion” of the 

sentencing court,’ and a court that is unaware of its discretionary authority cannot 

exercise its informed discretion.” (Ibid.; see People v. Woodworth (2016) 

245 Cal.App.4th 1473, 1480.) However, remand is unnecessary only when the record 

“ ‘clearly indicate[s]’ that the trial court would have reached the same conclusion ‘even if 

it had been aware that it had such discretion.’ ” (People v. Gutierrez (2014) 58 Cal.4th 

1354, 1391.)

7 California Rules of Court, rule 4.425(a)(3) (all subsequent references to rules are to the 

California Rules of Court) provides for consideration of whether “[t]he 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 aberrant behavior.” The trial court may have intended to use 

“aberrant” and not “abhorrent,” given its reference to rule 4.425.
11.

C. Analysis

Defendant argues that the trial court erred in imposing consecutive terms pursuant 

to section 667.6 because section 288.7 is not among the qualifying offenses listed in 

section 667.6. While defendant is correct that section 667.6 does not apply to his case, 

the trial court clearly expressed that even in the absence of a mandatory requirement, it 

would have sentenced defendant consecutively on counts 1 through 4, nonetheless. We 

conclude the court’s misunderstanding of its discretion does not require remand.

Section 667.6, subdivision (d) requires the trial court to impose a consecutive term 

for each violation of an offense specified in section 667.6, subdivision (e) “if the crimes 

involve separate victims or involve the same victim on separate occasions.” (§ 667.6, 

subd. (d).) If the crimes involve the same victim on the same occasion, section 667.6, 

subdivision (c) permits the court to run the terms consecutively in its discretion. 

Section 667.6 lists the sexual offenses for which the court must impose consecutive 

terms, but that list does not include offenses under section 288.7, subdivision (b).

The trial court found section 667.6 applicable because defendant was charged with 

violating section 288.7 by oral copulation and sexual penetration in violation of 

section 289, which is listed in section 667.6. We have previously held that where a crime 

not listed in section 667.6 necessarily includes a crime that is listed, then section 667.6 

applies. (People v. Jimenez (2000) 80 Cal.App.4th 286, 291 [applying former § 667.6, 

subd. (d) to violation of former § 269 where former § 667.6 specifically listed § 286 

(forcible sodomy) and § 286 was necessarily included in the former § 269 violation];

People v. Figueroa (2008) 162 Cal.App.4th 95, 98–99 [applying § 667.6 to violation of 

§ 269, subd. (a)(1) where § 667.6 specifically listed § 261, subd. (a)(2) (forcible rape) and 

§ 261, subd. (a)(2) was necessarily included in the § 269 violation].) In this case,

however, Jimenez’s reasoning does not apply because while section 288.7, 

subdivision (b) incorporates the definition of sexual penetration from section 289, 

section 667.6 only applies to forcible sexual penetration in violation of section 289, 
12.

subdivisions (a) or (g) (§ 667.6, subd. (e)(8)), neither of which was charged as part of the 

section 288.7, subdivision (b) offenses here. Defendant’s convictions under 

section 288.7, therefore, did not result in a finding that he had violated section 289, 

subdivisions (a) or (g), making section 667.6 inapplicable to his case.

Therefore, whether to impose consecutive or concurrent terms for defendant’s 

convictions was left to the sentencing court’s discretion under section 669. (See People 

v. Woodworth, supra, 245 Cal.App.4th at p. 1479 [“Absent an express statutory provision 

to the contrary, section 669 provides that a trial court shall impose either concurrent or 

consecutive terms for multiple convictions.”]; People v. Valdez (2011) 193 Cal.App.4th 

1515, 1524 [the absence of a contrary provision left “the decision to impose consecutive 

or concurrent terms to the sentencing court’s discretion under section 669”].)

Here, the trial court explicitly stated it would impose consecutive terms on each of 

counts 1 through 4, even if it had the discretion to make the sentences concurrent. The 

trial court gave its reasons for imposing consecutive terms: (1) defendant committed 

separate crimes on different occasions; (2) this was not a single period of “abhorrent” 

sexual abuse of the victim; (3) the victim was very vulnerable; and (4) defendant abused 

a position of trust as her stepfather. The trial court clearly indicated that it would 

sentence defendant consecutively even if section 667.6 were not applicable. (See People 

v. Gutierrez, supra, 58 Cal.4th at p. 1391.) We find it unnecessary to remand to the trial 

court.

Defendant also argues that defense counsel was ineffective for failing to object to 

the imposition of consecutive terms based on the trial court’s reliance on two improper 

factors: (1) that count 4 took place at a different time than one of the sexual penetration 

counts; and (2) that the victim was young and vulnerable, where age was an element of 

the offense.8 We reject this argument.

8

In his reply brief, defendant argues that the trial court improperly relied upon the victim’s 

age when imposing consecutive sentences on counts 1 through 4. While it is not clear as to 
13.

To prevail on a claim of ineffective assistance of counsel, a defendant must show 

“(1) counsel’s performance was deficient because it fell below an objective standard of 

reasonableness under prevailing professional norms, and (2) counsel’s deficiencies 

resulted in prejudice.” (People v. Centeno (2014) 60 Cal.4th 659, 674; accord, Strickland 

v. Washington (1984) 466 U.S. 668, 687–692.) “Prejudice requires ‘a reasonable 

probability that a more favorable outcome would have resulted ..., i.e., a probability 

sufficient to undermine confidence in the outcome.’ ” (People v. Fairbank (1997) 

16 Cal.4th 1223, 1241.) An appellate court may forgo the analysis of counsel’s 

performance if it is easier to dispose of the claim for lack of prejudice (ibid.), which we 

choose to do here.

We note that a trial court is not required to state its reasons for ordering one 

indeterminate term to run consecutively to another indeterminate term. (People v. Arviso

(1988) 201 Cal.App.3d 1055, 1058 (Arviso), superseded by rule on other grounds as 

stated in People v. Calhoun (2007) 40 Cal.4th 398, 407, fn. 6.)9 We note further that 

since the criteria found in the California Rules of Court do not specifically govern 

indeterminate sentencing choices (see rule 4.403), the court here could have imposed 

consecutive terms for virtually any reason so long as its decision was not arbitrary or 

whether defendant intended this argument as a separate argument or an argument in support of 

his challenge to counsel’s effectiveness, we will address it as part of the latter because we do not 

address claims raised for the first time in a reply brief. (People v. Newton (2007) 

155 Cal.App.4th 1000, 1005 [“we do not consider an argument first raised in a reply brief, absent 

a showing why the argument could not have been made earlier”].)

9 Section 1170, subdivision (c), requiring the trial court to “state the reasons for its 

sentence choice on the record at the time of sentencing,” applies only to sentences imposed 

pursuant to section 1170, i.e., determinate sentences. (Arviso, supra, 201 Cal.App.3d at p. 1058.)

However, defendant was sentenced to indeterminate terms and the decision to impose the terms 

concurrently or consecutively is made pursuant to section 669, which also has no requirement 

that reasons be set forth for the decision. Likewise, rule 4.403 specifically states that the 

sentencing rules, which require a statement of reasons, apply only where the defendant is 

convicted of one or more felonies punishable by a determinate sentence, or an indeterminate 

sentence if imposed with other offenses punished by determinate terms or enhancements.
14.

irrational. (Arviso, at pp. 1058–1059.) Accordingly, a trial court may impose 

consecutive indeterminate terms without any statement of reasons whatsoever.

“Where there is no requirement that a trial court state its reasons for the imposition 

of consecutive sentences, its reasons, if expressed, do not necessarily affect the validity of 

the sentence.” (Arviso, supra, 201 Cal.App.3d at p. 1058; see People v. Black (2005) 

35 Cal.4th 1238, 1262, fn. 17 [“No reason need be stated on the record for directing that 

indeterminate terms run consecutively to one another.”], judg. vacated and cause 

remanded on other grounds in light of Cunningham v. California (2007) 549 U.S. 270, 

276.) Even if improper reasons are given, reversal is not required unless the trial court is 

shown to have abused its discretion. (Arviso, at p. 1058.) “Where the Rules of Court 

permit a trial judge to rely on certain factors when imposing consecutive determinate 

sentences, we find no abuse of discretion where the judge relies on those factors, by 

analogy, in imposing consecutive indeterminate terms.” (Id. at p. 1059.)

While not required to do so, the trial court here cited several factors in aggravation

which may be considered in deciding to impose consecutive terms. (See rule 4.425(b).) 

Even in a determinate sentencing case, the court is not required to make multiple findings 

on the record, rather, “one relevant and sustainable fact may explain a series of 

consecutive sentences.” (People v. Scott (1994) 9 Cal.4th 331, 350, fn. 12; accord,

People v. Davis (1995) 10 Cal.4th 463, 552 [“Only one criterion or factor in aggravation 

is necessary to support a consecutive sentence.”].) Since the trial court reasonably 

concluded that defendant, being Y.S.’s stepfather, exploited a position of trust or 

confidence to commit the offenses, the trial court could impose consecutive terms in its 

discretion based on this factor alone.

Assuming for the sake of argument the trial court erred by relying on some 

improper factors, remand is unnecessary because, as we have explained, the court 

articulated a valid factor to justify the sentence. Thus, “it is ‘not reasonably probable that 

a more favorable sentence would have been imposed in the absence of the error.’ ” 
15.

(People v. Scott, supra, 9 Cal.4th at p. 355.) Defendant’s ineffective assistance of 

counsel claim fails as he has not suffered prejudice.

DISPOSITION

The judgment is affirmed. The trial court is ordered to correct the abstract of 

judgment, which should reflect that the 15 year-to-life terms on each of counts 1 through 

4 are imposed consecutively. The court shall forward a copy of the amended abstract of 

judgment to the appropriate entities.

HILL, P. J.

WE CONCUR:

LEVY, J.

FRANSON, J.