Filed 1/7/21 P. v. Bryson CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

RONALD GENE BRYSON,

Defendant and Appellant.

 D076683

 (Super. Ct. No. SCD268146)

APPEAL from a judgment of the Superior Court of San Diego County, 

Esteban Hernandez, Judge. Affirmed.

Patricia J. Ulibarri, under appointment by the Court of Appeal, for 

Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters and Julie L. 

Garland, Assistant Attorneys General, Steve Oetting and Heather B. 

Arambarri, Deputy Attorneys General, for Plaintiff and Respondent.
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I

INTRODUCTION

Defendant Ronald Gene Bryson appeals a judgment of conviction 

entered after a jury found him guilty of six counts of committing lewd acts

against minor sisters Jane Doe 1 and Jane Doe 2 (Pen. Code, § 288, subd. (a); 

counts 2–5, 7–8).1 The jury found true allegations that the defendant 

committed offenses against multiple victims (§ 667.61, subds. (e)(4), (j)(2)) 

and, with respect to count 4, the jury found true an allegation that the 

defendant inflicted great bodily injury in the commission of the offense 

(§ 12022.7, subd. (a)). The trial court sentenced the defendant to six 

consecutive terms of 25 years to life, plus a consecutive three-year term for 

the great bodily injury enhancement, for an aggregate term of 153 years to 

life. 

The defendant asserts the trial court violated the ban on dual use of 

facts by allegedly relying on the same fact—the existence of multiple 

victims—both to impose the indeterminate 25-to-life terms under the One 

Strike Law (§ 667.61) and to run those terms consecutively rather than 

concurrently. In the alternative, the defendant contends his trial counsel was 

ineffective for failing to object to the imposition of the consecutive terms. 

We conclude the defendant’s first argument is forfeited and both 

arguments are meritless. Therefore, we affirm the judgment.

II

BACKGROUND

In 2014, 12-year-old sisters Jane Doe 1 and Jane Doe 2 moved into 

their aunt’s apartment together with other members of their immediate 

family. The defendant was in an on-again, off-again romantic relationship

1 Further statutory references are to the Penal Code. 
3

with the sisters’ aunt. After the sisters moved in with their aunt, the 

defendant became involved in the sisters’ lives. He regularly played with 

them, picked them up from school, and babysat them while the other 

members of the family were at work. Jane Doe 1 referred to the defendant as 

her “Tio.” 

During several of the defendant’s visits, the defendant forced the 

sisters to have sexual intercourse with him. He forced Jane Doe 1 to have 

sexual intercourse with him on at least five occasions. According to Jane Doe 

1, she tried to resist the defendant’s advances but was unable to do so. 

During one of these forced sexual encounters, the defendant impregnated 

Jane Doe 1. She later gave birth to the defendant’s child at the age of 13. 

The defendant forced Jane Doe 2 to have sexual intercourse with him on at 

least three occasions. 

In connection with these incidents, the defendant was convicted of four

counts of committing a lewd act on Jane Doe 1 (counts 2–5) and two counts of 

committing a lewd act on Jane Doe 2 (counts 7–8). The jury found true 

allegations that the defendant committed the offenses against multiple 

victims and, as to count 4, that the defendant inflicted great bodily injury in 

the commission of the offense.2

The probation officer submitted a probation report recommending the 

trial court sentence the defendant to 153 years to life, consisting of six 

consecutive 25-to-life terms for the lewd act convictions and a consecutive 

three-year term for the great bodily injury enhancement. The probation 

2 The jury was unable to reach a unanimous verdict on two additional 

counts of committing lewd acts against a child under the age of 14 (counts 1 

and 6) and a one-strike special circumstance allegation of great bodily injury 

(count 4). The trial court declared a mistrial as to those counts and dismissed 

the counts and the special circumstance allegation. 
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officer recommended the court run the terms consecutively because “each 

count involved a separate sexual act” and the defendant committed the 

offenses against separate victims. 

The prosecution filed a sentencing statement that likewise 

recommended an aggregate sentence of 153 years to life. The prosecution 

argued there were multiple factors in aggravation and no factors in 

mitigation. According to the prosecution, the aggravating factors included

the fact that the defendant posed a serious danger to society, the fact that the 

defendant was on probation when he committed his crimes, and the fact that 

the defendant’s prior performance on probation was unsatisfactory. The 

prosecution argued, “[a] consecutive prison sentence for each count [was] 

absolutely warranted in light of Defendant’s repeated predatory sexual 

assaults upon two children, an innocent child being birthed as a result of the 

rapes, and Defendant’s lack of remorse, regret, and accountability for the 

horrific crimes he committed.” 

During the sentencing hearing, the trial court opined that it read and 

considered the probation report and the prosecution’s sentencing statement. 

In accordance with the recommendations of the probation officer and the 

prosecution, the court sentenced the defendant to prison for 153 years to life. 

III

DISCUSSION

A

Dual Use

“Penal Code section 667.61 (the ‘One Strike’ law) provides that if a 

defendant is convicted of a designated sex offense, and there is a finding of 

one or more aggravating circumstances, then the court shall impose a 

sentence of either 15 or 25 years to life. If a designated sex offense is 
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committed against multiple victims, the default sentence is 15 years to life. 

(§ 667.61, subd. (b).) But if multiple victims are under 14 years of age, the 

sentence must then be 25 years to life. (§ 667.61, subd. (j)(2).)” (In re 

Vaquera (2019) 39 Cal.App.5th 233, 235, footnote omitted.) 

Here, the jury found the defendant committed six counts of lewd acts 

against multiple victims under 14 years of age in violation of section 288, 

subdivision (a). Violations of section 288, subdivision (a) are designated sex 

offenses under the One Strike Law. (§ 667.61, subd. (c)(8).) Therefore, as 

both parties agree, the proper sentence for each of the six counts was 25 

years to life. (§ 667.61, subds. (e)(4), (j)(2).) Both parties further agree, as do 

we, that the trial court had discretion under section 669 to impose these 

terms either concurrently or consecutively. (People v. Zaldana (2019) 43 

Cal.App.5th 527, 536 [“the court retains discretion to impose concurrent or

consecutive 25-year-to-life terms for the ... violations of section 288, 

subdivision (a)”]; cf. § 667.61, subd. (i) [mandating consecutive sentences for

sex offenses not at issue here].) The parties disagree, however, as to whether 

the trial court properly exercised its discretion in running the terms

consecutively.

The defendant asserts the court abused its discretion because it 

allegedly ran the terms consecutively based on the fact that the defendant 

committed his offenses against multiple victims. According to the defendant, 

the court made use of the same fact to sentence him under the One Strike 

Law to 25 years to life for each count. The defendant asserts the court’s 

alleged use of the fact of multiple victims for both purposes was “tantamount 

to ... a violation of the ‘dual use’ rule.” 

During sentencing, the defendant did not object to the trial court’s 

alleged dual use of the fact of multiple victims. By failing to object, the 
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defendant has forfeited his dual use argument. (People v. Scott (1994) 9 

Cal.4th 331, 356 [“[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.”]; see also, e.g., People v. de Soto 

(1997) 54 Cal.App.4th 1, 7 [defendant’s assertion of boilerplate objection 

forfeited dual use argument]; People v. Erdelen (1996) 46 Cal.App.4th 86, 90–

91 [defendant’s failure to object forfeited dual use argument].) 

Even if the defendant had preserved his dual use argument for appeal, 

the defendant’s dual use argument is meritless because it rests on a 

misinterpretation of the trial court record. When imposing the sentence for 

each count, the court made the following comment on the record: “[F]or 

violation of Penal Code Section 288[, subd.] (a), lewd act upon a child with a 

true finding of Penal Code Section 667.61[, subd.] (j)(2) that the defendant 

committed the offense against more than one victim, defendant is sentenced 

to a consecutive indeterminate term of 25 years to life.” 

Although the court referenced the offense and the associated multiple 

victim finding for each count before pronouncing the sentence, the court 

never indicated it was using the fact of multiple victims as the basis for its 

decision to run the indeterminate terms consecutively. Instead, the court—as 

it was entitled to do—refrained from articulating any reason for its decision

to run the terms consecutively. (People v. Arviso (1988) 201 Cal.App.3d 1055, 

1058, superseded by rule on other grounds as stated in People v. Calhoun

(2007) 40 Cal.4th 398, 407, fn. 6 [“[A] trial court may impose consecutive 

indeterminate terms without any statement of reasons whatsoever.”]; People 

v. Dixon (1993) 20 Cal.App.4th 1029, 1037 [“Section 1168 does not require a 

statement of reasons for a sentencing choice.”].) Because there is no 
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indication the court used the fact of multiple victims to run the terms

consecutively, the defendant’s dual use argument fails on the merits.3

B

Ineffective Assistance of Counsel

The defendant asserts his trial counsel was ineffective for failing to

object to the trial court’s imposition of consecutive terms for each of his six 

lewd act convictions. “Establishing a claim of ineffective assistance of counsel 

requires the defendant to demonstrate (1) counsel’s performance was 

deficient in that it fell below an objective standard of reasonableness under 

prevailing professional norms, and (2) counsel’s deficient representation 

prejudiced the defendant, i.e., there is a ‘reasonable probability’ that, but for 

counsel’s failings, defendant would have obtained a more favorable result.” 

(People v. Dennis (1998) 17 Cal.4th 468, 540, citing Strickland v. Washington 

(1984) U.S. 668, 687.)

Insofar as the defendant’s ineffective assistance claim is based on his 

trial counsel’s failure to raise a dual use objection, the defendant’s argument 

fails because he has not established that his counsel rendered deficient 

performance. As noted, the trial court did not state that it was imposing 

consecutive sentences based on the fact of multiple victims. Therefore, a dual 

use objection would have been meritless. “Counsel does not render ineffective 

assistance by failing to make motions or objections that counsel reasonably 

determines would be futile.” (People v. Price (1991) 1 Cal.4th 324, 387.)

3 There is some dispute between the parties as to whether the dual use 

proscription applies where, as here, a defendant is sentenced to 

indeterminate terms for his or her felony convictions. Because the defendant 

forfeited his dual use argument and has not established dual use, we need 

not resolve the parties’ dispute.
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The defendant’s ineffective assistance argument fares no better to the 

extent it is predicated more generally on his trial counsel’s alleged failure to 

argue for concurrent sentencing. “[T]here is no indication in this record that 

an argument for concurrent sentencing would have resulted in a[] ... more 

lenient sentence.” (People v. Jones (2013) 217 Cal.App.4th 735, 748.) 

Further, there were numerous factors weighing in favor of the imposition of 

consecutive sentences, including the defendant’s commission of multiple 

forcible sex acts on separate occasions, his forcible impregnation of one of his 

victims, his limited or non-existent show of remorse for his crimes, and his

status as a probationer when he committed his crimes. Given these factors, 

“it is not objectively reasonable to argue that counsel was deficient.” (Jones, 

at p. 748.) For similar reasons, the defendant has not established a

reasonable probability he would have obtained a more favorable result—i.e., 

concurrent sentences—but-for his trial counsel’s allegedly deficient 

performance. (People v. Alvarado (2001) 87 Cal.App.4th 178, 194–195.)

IV

DISPOSITION

The judgment is affirmed.

McCONNELL, P. J.

WE CONCUR:

AARON, J.

GUERRERO, J.