Filed 4/20/18 P. v. Santiago CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO


THE PEOPLE,
Plaintiff and Respondent,
v.
ANTONIO SANTIAGO,
Defendant and Appellant.

A146414

(San Mateo County
Super. Ct. No. SC079207)


Antonio Santiago was sentenced to eight years in state prison for four counts of lewd acts upon a child under the age of 14, and he challenges that sentence in two respects. First, he argues that the trial court abused its discretion in choosing the aggravated term for his crimes. Second, he argues that the attorney who represented him at sentencing was constitutionally ineffective for failing to object to the sentence and for failing to urge leniency on the basis of Santiago’s limited cognitive abilities. We will affirm, as we find no abuse of discretion in the trial court’s sentencing decision and no prejudice from the complained-of inadequacies in defense counsel’s representation.
BACKGROUND
Santiago’s granddaughter J.D. was a teenager in 2015, when this case went to trial. She testified that when she was five or six years old Santiago had French kissed her. When she was nine years old and staying with her grandparents in Texas, he put his hand inside her pajamas and underwear and touched her vagina. With his finger, he penetrated and manipulated her, ignoring J.D. when she told him to stop because it hurt. In September or October 2012 when J.D. was 12 years old, her grandparents came to stay with her family in San Mateo. On several occasions during this visit, Santiago sexually assaulted J.D. in a similar fashion. Once, after digitally penetrating J.D., Santiago grabbed her hand and placed it, over his pajamas, on his penis. He told her that when they were alone he would have sex with her, which “really scared” her.
For these assaults when J.D. was 12, Santiago was arrested, tried, and convicted as charged. The jury found that he committed four lewd acts upon a child under the age of 14 (Pen. Code, § 288, subd. (a)), and that three of these acts involved substantial sexual conduct, specifically penetration (Pen. Code, §1203.066). The fourth count was for causing J.D. to touch his penis. At trial, the jury heard evidence that Santiago admitted the crimes to a Spanish-speaking police officer when interviewed while in jail. In an unrecorded statement, Santiago was said to have initially denied wrong-doing, but eventually admitted touching J.D. skin-to-skin on her vagina in Texas and putting his finger inside her vagina on three occasions in San Mateo. At trial, when Santiago testified, he denied all wrong-doing. Specifically, he denied French kissing J.D., touching her in a sexually inappropriate manner, being alone with J.D. at any time during the visit to her home when J.D. was 12, and making the admissions attributed to him during the police interview.
After the verdict, Santiago changed lawyers. His new lawyer, Chris Morales, brought an unsuccessful motion for a new trial. Immediately after denying that motion, the court moved to sentencing. The judge said she had read the probation report and the prosecutor’s sentencing memorandum, and she invited Morales’s arguments on sentencing. Morales cited three mitigating factors: Santiago’s lack of any criminal record, his advanced age (77 at time of trial), and his relationships with other family members. Morales requested probation and then, when the court informed him that Penal Code section 1203.066, subdivision (a)(8) precluded probation, requested the low term on each count, with penalties run concurrent. The result would have been a three-year sentence. The prosecutor asked for an eight-year sentence, which he calculated as a midterm of six years on count 1, plus one-third the midterm (i.e., two years) on count 2, with the other counts run concurrent.
The trial court sentenced Santiago to eight years, but on a different calculus. The judge chose the aggravated term of eight years for each of the four counts, and then ran the terms concurrent. She explained that several circumstances in aggravation set forth in rule 4.421 of the California Rules of Court applied and, while she did not “need to name all of them,” she would articulate some for the record. “The victim was particularly vulnerable,” as she was nine when Santiago began touching her, “your nine-year-old granddaughter,” the judge explained. Also, the crimes involved a “threat of great bodily harm and a high degree of callousness,” in that Santiago was molesting his own grandchild on a “repeated and ongoing” basis “encompass[ing] periods of time even greater than what you have been charged with.”
Before articulating these reasons, the judge mentioned some other factors affecting her sentencing decision. She told Santiago she would not ignore the acts of molestation that occurred before the crimes with which he was charged; that it was “very tragic that [J.D.] and her mother have been alienated by you and by . . . other members of your family simply because they have the courage to tell the truth”; and that she was “troubled” by his “continuing to label the victim as a liar and to defame her character,” which is doubtless a reference to statements attributed to Santiago in the probation officer’s report. Addressing the potentially mitigating factors that Morales raised, she commented that she found it “tragic that at 76 years of age you come before me having lived a life free of any criminal liability” although he had been committing these crimes for several years, and that it was “admirable” but irrelevant that he had been a hard-worker and “a good provider to your family.” “[T]hat doesn’t in any way excuse or mitigate against the horrible crimes that you committed,” the judge told Santiago.
The judge had considerable information about Santiago when she decided his sentence. At trial, she had heard from family members and police officers about their interactions with him, and she had the opportunity to observe him directly as he testified before the jury. Reading the probation report, she would have learned more about his personal background and circumstances, including that “he was forced to quit school and work on the family farm” after just one year of schooling, and had worked in manual jobs ever since. The probation officer also reports that Santiago “is illiterate.”
The court file contained other information that the trial judge may never have seen. Pursuant to Penal Code section 1368, two psychologists evaluated Santiago’s competence to stand trial, both concluding that he was competent but with limited cognitive abilities. One psychologist reported that Santiago suffered from “Borderline Intellectual Functioning,” explaining that his “ability to engage in abstract thinking was seemingly below the average range, but seemingly sufficient to meet the demands of his present legal situation.” Santiago lacked “cognitive flexibility,” and was “not a man who can think in any but the most concrete and simplistic of terms.” The other psychologist characterized Santiago as having “in the low average range of cognitive abilities” but also reported that, “despite his lack of education, he demonstrated the ability to both read and write in basic Spanish,” and had passed the written test to receive a driver’s license. Because a different judge handled the pre-trial determination of Santiago’s competence, the trial judge may never have seen these reports.
DISCUSSION
I. Choosing the Aggravated Term Was No Abuse of Discretion
The trial court has “broad discretion” to choose the upper, middle, or lower term in sentencing a defendant to state prison, but must “specify reasons for its sentencing decision.” (People v. Sandoval (2007) 41 Cal.4th 825, 846-847; see also (Pen. Code, § 1170, subd. (b) [“court shall select the term which, in the court’s discretion, best serves the interests of justice”].) We review for abuse of discretion, and a trial court abuses its discretion “if it relies upon circumstances that are not relevant to the decision or that otherwise constitute an improper basis for decision.” (Sandoval, at p. 847.) For example, “the court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed,” nor “[a] fact that is an element of the crime.” (Pen. Code, § 1170, subd. (b); Cal. Rules of Court, rule 4.420(d).) The California Rules of Court set forth aggravating and mitigating factors that the judge may consider, but the enumerated factors are not exclusive. (Cal. Rules of Court, rules 4.408, 4.420, 4.421, 4.423.)
Santiago argues that the imposition of the upper term was an abuse of discretion for two reasons: (1) the trial court was unaware of Santiago’s cognitive limitations as a mitigating factor and as a possible explanation for remarks the court interpreted as “callousness,” and (2) the trial court treated as aggravating factors certain circumstances that were inherent in the crime itself, such as the victim’s vulnerability and the threat of great bodily injury. The Attorney General is correct that Santiago forfeited these arguments by failing to object when his sentence was imposed. (People v. Scott (1994) 9 Cal.4th 331, 356.) However, because Santiago also alleges trial counsel was constitutionally ineffective for having failed to make these arguments in the trial court, we will address them here on the merits.
First, we see no abuse of discretion in the trial court’s apparent failure to consider the psychologists’ reports in sentencing. Having reviewed those reports, we disagree with Santiago’s assertion that they “revealed that his insistence on maintaining his claims of innocence [was] a product of his very low cognitive abilities and low intellectual levels of functioning.” On the contrary, one report placed him “in the low average range of cognitive abilities” and recognized, as the probation report did not, that he was literate in Spanish. The other report, arguably more pessimistic about his cognitive abilities, nonetheless concluded that Santiago’s “ability to engage in abstract thinking” seemed “sufficient to meet the demands of his present legal situation.” These reports add little, if anything, to the information the judge already had about Santiago’s intellectual abilities, and they do not mitigate his crimes or his subsequent defaming of his granddaughter as a liar. There is nothing particularly abstract or intellectual about the conduct that the trial judge was evaluating, neither the specific acts of child molestation nor the subsequent attempts to discredit his accuser. While the law recognizes as a potential mitigating factor a defendant who suffers “from a mental . . . condition that significantly reduced culpability for the crime” (Cal. Rules of Court, rule 4.423(b)(2)), Santiago’s lack of intellectual sophistication in no way reduces his culpability for this conduct. The reports Santiago brings to our attention confirm this conclusion. They do not establish that Santiago suffers from an intellectual disability that would previously have been called mental retardation, see Hall v. Florida (2014) 572 U.S. __ [134 S.Ct. 1986, 1990], so Hall and Atkins v. Virginia (2002) 536 U.S. 304, do not apply.
Second, we see no abuse of discretion in the trial court’s considering as circumstances in aggravation (a) J.D.’s vulnerability, and (b) the callousness or threat of great bodily harm that characterized these crimes. J.D.’s vulnerability was not solely because she was a child under the age of 14. She was particularly vulnerable because she was considerably younger than 14—only five, six, or nine years old—when the conduct started, and she was Santiago’s granddaughter. The family relationship made J.D. more vulnerable because a stranger would not likely have been able to slip into a bedroom with J.D. on multiple occasions. Explaining why this criminal conduct involved a high degree of callousness, the court again cited the family relationship and the repeated nature of the criminal conduct. Neither of these facts is inherent in a single charge of lewd act on a minor, so both are appropriate bases for the court to determine that this crime was unusually callous. Finally, we doubt that the trial judge considered the threat of great bodily harm to be a separate factor in aggravation, as she mentioned it only in a sentence fragment introducing her point that the crime involved a high degree of callousness, and the two ideas are listed together as a single aggravating factor in the applicable Rule of Court. (See Cal. Rules of Court, rule 4.421, subd. (a)(1) [“The crime involved . . . threat of great bodily harm, or other acts disclosing a high degree of . . . callousness”].) But this factor is in any event substantiated by Santiago’s threat to J.D. that when the two of them were alone together in the future he would have sex with her, which the court could have considered a threat of great bodily harm to a 12-year-old child.
In sum, we find no abuse of discretion in the court’s explanation for why she chose the upper term in this case.
II. No Prejudice from Ineffective Assistance of Counsel
A criminal defendant has a constitutional right to the effective assistance of counsel during criminal proceedings. (People v. Ledesma (1987) 43 Cal.3d 171, 215 (Ledesma).) A defendant has been denied such assistance, requiring that his conviction be reversed if: (1) “ ‘counsel’s representation fell below an objective standard of reasonableness . . . under prevailing professional norms,’ ” and (2) prejudice ensued, meaning “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. (Id., at pp. 216-218.) The defendant bears the burden of proving by a preponderance of evidence an ineffectiveness claim (id., at p. 218), and may do so on direct appeal where no tactical or other reason could adequately explain counsel’s conduct. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.)
Santiago urges that counsel was constitutionally ineffective for failing to object to the improper use of aggravating circumstances, and for not urging the contents of the Penal Code section 1368 reports in mitigation and in response to the judge’s concerns about callousness. But even if we assume for purposes of argument that counsel was ineffective in failing to read the section 1368 reports before the sentencing hearing, we find no prejudice here. For the reasons explained above, we conclude there is no reasonable probability that objections from counsel or arguments based on the psychologists’ reports would have produced a more favorable sentence for Santiago in this case. Santiago’s ineffective assistance of counsel claim accordingly fails. (See Ledesma, supra, 43 Cal.3d at pp. 216-218.)
DISPOSITION
The judgment is affirmed.









_________________________
Tucher, J.*


We concur:


_________________________
Kline, P.J.


_________________________
Stewart, J.