P. v. Torres
Filed 5/20/13 P. v. Torres CA4/1
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
>
THE PEOPLE, Plaintiff and Respondent, v. SECUNDINO TEODORO TORRES, Defendant and Appellant. | D062136 (Super. Ct. No. SCN270271) |
APPEAL from
a judgment of the Superior Court
of
County, Timothy M. Casserly, Judge. Affirmed as modified.
Siri
Shetty, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Lilia E.
Garcia, Deputy Attorneys General, for Plaintiff and Respondent.
Secundino
Teodoro Torres appeals for a second time in this action in which he was
convicted of committing numerous acts of sexual molestation on C. when she was
between the ages of eight and 12. After
we modified the judgment as a result of Torres's first appeal to reflect lesser
included offenses on two of the counts and remanded for resentencing, the trial
court resentenced Torres to prison for a term of 72 years eight months.
Torres
contends that he received ineffective assistance from
argue at resentencing that the trial court should exercise its discretion to
impose concurrent rather than consecutive sentences for some of the
counts. As we will explain, we conclude
that the record on appeal is insufficient to establish that defense counsel
provided ineffective assistance, and we therefore reject Torres's
argument. Torres also argues, and the
Attorney General agrees, that the abstract of judgment should be modified to
correct a clerical error. We order the
trial court to correct the clerical error in the abstract of judgment, and we
otherwise affirm the judgment.
I
FACTUAL
AND PROCEDURAL BACKGROUND
As we
explained in an earlier nonpublished opinion in this matter,
Torres was found guilty of nine counts of forcible lewd acts on a child (Pen.
Code, § 288, subd. (b)(1));
counts of nonforcible lewd acts on a child (§ 288, subd. (a)); two
counts of employing a minor to perform prohibited acts (§ 311.4,
subd. (c)); and one count of possessing matter depicting a person under
the age of 18 in sexual conduct (§ 311.11, subd. (a)). The trial court sentenced Torres to prison
for 94 years eight months, running all of the sentences for the lewd act counts
and forcible lewd act counts consecutively to each other.
Torres's
conviction was based on the molestation
of C. that occurred on several different days when C. was between the ages of
eight and 12.
title="">[3] Some of the lewd act counts were based on
Torres's molestation of C. that was recorded on videotape by Torres on two
different occasions.
name="_ftnref4" title="">[4] The remaining lewd act counts were based on
several different incidents that C. recalled but that were not captured on
videotape.
In the 2011
opinion, we modified the convictions on counts 16 and 17 (two of the
forcible lewd acts not depicted on the videotape) to reflect convictions on a
lesser included offense of nonforcible lewd acts (§ 288,
subd. (a)). We also concluded that
the trial court erred in ruling that counts 13, 14 and 15 were subject to
a mandatory full-term consecutive sentence under section 667.6,
subdivision (d), and we remanded for the trial court to exercise its
discretion as to whether Torres should receive consecutive sentences for those
counts.
Because we
were remanding the matter for resentencing, we specifically declined in the
2011 opinion to rule on Torres's contention that the trial court abused its
discretion by imposing consecutive sentences for the nonforcible lewd acts
based on its conclusion that "they're separate acts, separate attacks,
separate opportunity to reflect, and I think as a result should be run
consecutively."
name="_ftnref5" title="">[5]
On remand,
the trial court exercised its discretion with respect to the forcible lewd acts
in counts 13, 14 and 15 to run counts 14 and 15 concurrent to count 13. The trial court also decided to run the
sentence for count 17 concurrent to the sentence for count 16.
The trial
court specifically addressed whether to revisit its decision on consecutive
sentencing for the remaining counts that were not affected by our decision in
the 2011 opinion. The court stated,
"I recognize that on appeal the court can look at the whole sentencing
structure over again, including all of those counts, but I think nothing has
changed with respect to any of those counts that should cause the court to
change its sentencing. I think each of
the sentencing choices and reasons the court gave in the original sentence
still appl[y], and I am applying them to this sentencing." The trial court accordingly imposed
consecutive sentences for the nonforcible lewd act counts, as it had done for
the previous sentencing, for a total prison term of 72 years eight months.
II
DISCUSSION
A. Torres Has Not
Established Ineffective Assistance of Counsel
Torres
contends that defense counsel was ineffective at the
did not argue that the trial court should revisit its decision to impose
consecutive sentences for the nonforcible lewd act counts.
"Under
both the Sixth Amendment to the United
States Constitution and article I, section 15, of the California
Constitution, a criminal defendant has the right to the assistance of
counsel." (People v. Ledesma
(1987) 43 Cal.3d 171, 215.) A defendant
claiming ineffective assistance of
counsel has the burden to show:
(1) counsel's performance was deficient, falling below an objective
standard of reasonableness under prevailing professional norms; and
(2) the deficient performance resulted in prejudice. (Strickland v.
Washington (1984) 466 U.S. 668, 687; Ledesma, at pp. 216, 218.)
Prejudice is shown when "there is a reasonable probability that,
but for counsel's unprofessional errors, the result of the proceeding would
have been different. A reasonable
probability is a probability sufficient to undermine confidence in the
outcome." (Strickland, at p. 694.) Further, "[r]eviewing courts reverse
convictions on direct appeal on the ground of incompetence of counsel only if
the record on appeal demonstrates there could be no rational tactical purpose
for counsel's omissions." (People
v. Lucas (1995) 12 Cal.4th 415, 442; see also People v. Anderson
(2001) 25 Cal.4th 543, 569.)
Here, the
record on direct appeal is insufficient to establish that defense counsel
offered ineffective assistance.
Specifically, statements made during the sentencing hearing make clear
that the trial court and counsel participated in an unreported discussion in
the trial court's chambers prior to the reported sentencing hearing. Moreover, instead of repeating the content of
those discussions on the record, defense counsel stated at the outset of the
sentencing hearing, "We will submit on the discussions we had in
chambers." As Torres correctly
points out, defense counsel did not argue during
the reported portion of the sentencing hearing that the trial court should
revisit its decision to impose consecutive sentences for the nonforcible lewd
act counts. However, the appellate
record contains no indication of whether defense counsel raised that issue
during the unreported discussion in
chambers.
It is well
established " 'that
"[if] the record on appeal 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 unless there simply could be no
satisfactory explanation," the claim on appeal must be rejected.' [Citations.]
A claim of ineffective assistance in such a case is more appropriately
decided in a habeas corpus proceeding."
(People v. Mendoza Tello
(1997) 15 Cal.4th 264, 266-267.) Because
we do not know what was discussed in chambers, we are not able to conclude that
"there simply could be no satisfactory explanation" for defense
counsel's failure to raise the issue of consecutive sentencing for the
nonforcible lewd acts during the sentencing discussion that appears in the
reporter's transcript. (People v.
Carter (2003) 30 Cal.4th 1166, 1211.)
As the content of the unreported discussion in chambers may provide an
explanation for defense counsel's failure to argue at the sentencing hearing in
favor of concurrent sentences for some or all of the nonforcible lewd act
counts, we reject — in the context of Torres's direct appeal — the contention
that defense counsel offered ineffective assistance of counsel.
B. Correction of the
17
As Torres
points out, the abstract of judgment erroneously fails to reflect that
counts 16 and 17 were reduced from forcible lewd acts (§ 288,
subd. (b)(1)) to nonforcible lewd acts (§ 288, subd. (a)). The Attorney General concurs that the error
should be corrected.
We
accordingly order that the abstract of judgment be modified to correctly
reflect convictions on counts 16 and 17 for nonforcible lewd acts in
violation of section 288, subdivision (a).
(People v. Mitchell (2001) 26 Cal.4th 181, 185 [discussing
appellate court's authority to order correction of the
DISPOSITION
The trial court is directed to amend the abstract
of judgment to reflect that the convictions for
counts 16 and 17 are for nonforcible lewd acts in violation of
section 288, subdivision (a).
The trial court shall forward a certified copy of the amended
and Rehabilitation. In all other respects, the judgment is
affirmed.
IRION, J.
WE CONCUR:
BENKE,
Acting P. J.
McINTYRE, J.
name="_ftn1" title="">[1] We have taken judicial notice of the contents of the record
of the first appeal.
name="_ftn2" title="">[2] Unless otherwise indicated, all further statutory references
are to the Penal Code.
