Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F05900315-3, Gregory T. Fain, Judge.
United Defense Group and Michael N. Friedman for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Janis Shank McLean and David A. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Levy, Acting P.J.
INTRODUCTION
Appellant James Martin Sanchez was convicted after jury trial of the following offenses: oral copulation of a child under the age of 14, digital penetration of a child under the age of 14, sexual penetration of a child under the age of 14, assault with intent to commit oral copulation, assault with intent to commit a lewd or lascivious act, assault with intent to commit rape, forcible lewd act upon a child under the age of 14, and false imprisonment. Appellant admitted a prison prior. (Pen. Code, §§ 269, subd. (a)(4); 269, subd. (a)(5); 220; 288, subd. (b)(1); 236; 667.5, subd. (b).) Appellant was sentenced to an aggregate term of 31 years to life imprisonment.
Unless otherwise specified, all statutory references are to the Penal Code.
Appellant argues that his confrontation and fair trial rights were infringed during trial and that the court erred by imposing a full-term consecutive sentence for count 2. None of these arguments are persuasive. We will affirm.
STATEMENT OF FACTS
On the morning of January 10, 2005, 13-year-old B.R. skipped school with appellant’s daughter (Daughter), and another girl. They went to a neighbor’s residence (Samantha) and smoked marijuana.
Later that day, B.R. went to Daughter’s house and the girls went into Daughter’s bedroom. About 10 minutes later, appellant entered the room and told Daughter to go feed their dogs. After Daughter left, appellant told B.R. that he had a surprise for Daughter and wanted B.R.’s opinion about it. Appellant led B.R. to the master bedroom and locked the door. He asked B.R. if she ever smoked drugs. B.R. replied in the negative. Appellant showed B.R. a film canister containing rocks of cocaine. Appellant smoked a rock of cocaine. B.R. tried to leave, but appellant blocked her path. She asked appellant to let her go, but he refused. Then appellant told B.R. she could leave if she went into the bathroom, took off her underwear and gave it to him. B.R. refused. Appellant blew cocaine smoke into her face. Appellant told B.R. to be quiet so Daughter would not hear. Appellant attempted to remove B.R.’s pants. B.R. pulled away from him and fell to the ground. Appellant pulled off B.R.’s pants and underwear. When B.R. tried to get up, appellant pushed her down and tried to pull her legs apart. B.R. started screaming for help. Appellant removed his pants, got on top of B.R. and attempted to insert his penis into her vagina. B.R. continued to struggle and appellant finally said, “Okay. I won’t.” Then he said, “I’ll just finger you and eat you.” He slid one or two fingers into her vagina. He licked her vagina and penetrated it with his tongue. Appellant asked B.R. if what he was doing felt good. She replied that it did not. She grabbed a cordless telephone and attempted to dial 911, but appellant took the telephone away from her.
Meanwhile, Daughter finished feeding the dogs. Hearing noises coming from the master bedroom, Daughter knocked on the door. B.R. called out to her. Daughter opened the door. She and two younger brothers went into the room. Daughter told appellant to get off of B.R. Appellant told Daughter to leave. B.R. got up and ran toward the open bedroom door. Appellant unsuccessfully tried to close the door. B.R. ran out of the house.
A neighbor saw B.R. running down the street. B.R. yelled, “Please help me. My best friend’s dad just tried to rape me.” The neighbor saw Daughter holding B.R.’s pants and calling for her to come back. The neighbor took B.R. into her house and called the police.
Daughter ran to Samantha’s residence and pounded on the door. Samantha testified that Daughter was hysterical. Daughter told Samantha that “my dad tried to rape B.R..” Samantha walked Daughter down the street to some police officers. Daughter gave a statement to the police and returned to Samantha’s apartment. Samantha testified that Daughter told her that appellant asked her to feed the dogs. Daughter said that she heard yelling in the master bedroom. Daughter kicked the door open and saw appellant on top of B.R. Daughter pushed appellant off of B.R. Daughter yelled, “How could you do this[?] Why are you doing this[?] I hate you[.] You’re not my father.”
After a 17-hour stand-off, police officers entered appellant’s house and found appellant in bed with three of his children. Appellant was subdued and arrested.
Appellant testified that about 10 to 15 minutes after the girls went into Daughter’s bedroom he heard the sound of a lighter and smelled what he believed to be marijuana smoke coming from the room. He entered the bedroom and saw B.R. and Daughter on the bottom bunk of a bunk bed. B.R. was not wearing any pants or underwear. Appellant yelled at B.R., “This kind of crap does not go on in this house. Get the hell out of here.” B.R. ran out of the house. She yelled, “Don’t touch me, don’t touch me.” Daughter left the house shortly thereafter. He started to call 911 but changed his mind and ended the call before it connected. A while later, appellant heard sounds made by police officers and helicopters outside his house. He did not want to come outside until his wife had taken his three children and he communicated this to the police. He drank five or six rum and Pepsi drinks during the course of the evening and fell asleep with three of his children in his bed. He was awakened the next morning by police officers who arrested him.
DISCUSSION
I. Appellant forfeited the constitutional confrontation and fair trial claims; the court did not have a sua sponte instructional obligation.
In accordance with the guidance provided by the California Supreme Court, we will refer to the loss of the right to raise the issue on appeal as “forfeiture” (instead of “waiver”) because that term refers to the legal consequences resulting from the failure to object or invoke a right. (In re Sheena K. (2007) 40 Cal.4th 875, 881, fn. 1.)
A. Facts
i. Daughter’s testimony
During a pretrial in limine hearing, the prosecutor informed the court that she had information Daughter intended to refuse to answer any questions when the People called her to testify. Defense counsel and the prosecutor agreed that Daughter did not have a privilege to refuse to testify. In relevant part, defense counsel asked, “Let’s assume there’s no privilege. And if they say I’m not going to testify, you’re going to have them come in front of the jury and do it?” The court replied, “You bet.” Defense counsel responded, “Okay. That’s fine.” After research, the court concluded that it had limited authority to sanction Daughter for contempt because she is a minor. The court allowed the prosecutor to call Daughter as a witness.
The prosecutor stated that Daughter was cooperative initially but she changed her mind and refused to testify after she “had contact with” defense counsel. Defense counsel denied speaking with Daughter
When Daughter was called as a witness, she initially answered the prosecutor’s questions. She testified that she was 15 years old, a high school sophomore and maintained a 3.0 G.P.A. She also responded affirmatively to questions establishing that Daughter met the prosecutor and the People’s investigator on a prior occasion. When the prosecutor asked Daughter if she remembered a meeting during which both the investigator and the school counselor were present, Daughter replied that she did not “want to answer any more questions.” Next, then the prosecutor asked, “Okay. Do you remember talking, with your counselor present, to [the People’s investigator] and saying that your dad was trying to get you not to testify?” Defense counsel objected on the grounds that the question was leading, suggestive and improper. The court overruled the objections and ordered Daughter “to answer the questions truthfully that are asked by either party.” Daughter said, “Sorry. But I don’t want to testify against my dad. I’m not going to answer any questions.” The prosecutor asked Daughter why she did not want to testify against her father. Daughter replied, “Because he’s my father.” Defense counsel objected, saying, “Excuse me, Your Honor. She said she does not want to testify.” The prosecutor replied, “She just said against her dad.” The court overruled the objection and told Daughter to finish her answer. Daughter said, “I don’t want to testify against my dad. He’s my father and I don’t want to testify against him.” The court said, “Let’s go ahead and have a couple more questions.” It ordered Daughter to answer the questions posed to her and stated, “I’m warning you that -- that I have contempt powers if you don’t answer them. Okay. Do you understand?” Daughter replied, “Yes.” Thereafter, the prosecutor asked, “[Daughter], is it true that your mom and dad have tried to get you not to testify in this case?” Daughter replied, “What I’m doing is what I want to do. And I don’t want to answer any more questions.” The prosecutor asked, “Okay. What is it -- you understand that all we want you to do is to tell the truth today. Do you understand that?” Daughter replied, “Yes. But I’m not going to because -- I mean, I’m not going to answer any more questions because -- because my dad, I love him, and I don’t want to testify against him.” The prosecutor asked, “What is it about the truth, [Daughter], that you think will hurt your father?” Daughter answered, “I just don’t want to testify against him. I don’t want to testify at all.” At this point, the court asked the prosecutor if she was finished and the prosecutor replied affirmatively.
Defense counsel cross-examined Daughter He asked Daughter if she was interviewed by someone from the probation department. When Daughter replied affirmatively, defense counsel asked, “And do you recall at any time in the interview saying something to the effect you’re not for sure what happened?” Daughter replied, “Yes.” Defense counsel asked, “And you’re not going to testify? You told both those things?” Daughter replied, “Yes.” Defense counsel stated he did not have any further questions.
During redirect examination, the prosecutor asked, “[Daughter], isn’t it true that up until just right before you were supposed to testify in this case, that you were very sure about everything that you saw and everything that happened that day? Isn’t that true?” Daughter answered, “I don’t wish to answer any of your questions.” The prosecutor asked, “Isn’t it true that you never expressed any -- any statement that said you didn’t remember or weren’t sure what happened that day until you were pressured by your parents not to testify against your dad?” Daughter replied, “I wasn’t pressured by anyone. And I’m not going to answer any questions.” The prosecutor asked, “[Y]ou told [the People’s investigator], in the presence of your counselor, that your mom and dad were trying to get you not to testify or to say that you didn’t remember. Do you remember making those statements?” Daughter answered, “I’m not going to answer any more of your questions.” The prosecutor asked, “Why aren’t you going to answer my questions?” Daughter replied, “Because I do not wish to testify against my father.”
The court stopped the redirect examination, saying, “Okay. That’s enough.” The court asked defense counsel if he wanted to re-cross, saying “Mr. Kinney?” Defense counsel answered, “No.” Daughter was excused.
ii. Samantha’s testimony
The prosecutor motioned in limine to admit evidence of statements Daughter made to Samantha immediately after the incident under the excited utterance exception to the hearsay rule. Defense counsel argued that he did not receive timely discovery of this witness. Also, he made the following statement, “If this person is a witness, then I think it would be relevant for her to testify that she went and told the same, you know, prior statement to this person. It would come in. [¶] Obviously, if she’s not a witness, if that should develop, I still object to it [as late discovery].” The court ruled that the People complied with the applicable discovery rule and the hearsay statements qualified as excited utterances under Evidence Code section 1240.
After Daughter was excused, the prosecution called Samantha, who testified as previously set forth in the statement of facts. Defense counsel did not object to admission of testimony concerning statements Daughter made to her.
iii. Closing arguments
Without objection, the prosecutor argued during her initial closing summation, as follows:
“You know, one of the most compelling witnesses I thought in this case besides [B.R.] was [Daughter] Because although [Daughter] got on the stand and refused to answer any questions, she did say something that I think speaks louder than anything. And, that is, she told you ‘I don’t want to testify against my father’, ‘I don’t want to testify against my father,’ ‘I love my dad’.
“And I submit to you, ladies and gentlemen, that however awful and creepy and disgusting our parents can be, that little girl is still going to love her dad. And she’s in a terrible position in this case, an awful position that I wouldn’t wish on anyone.”
During defense counsel’s summation, he argued:
“The first witness in this case was [Daughter] And, remember my opening statement. I said don’t get into speculation and conjecture what’s going on with [Daughter] Because [Daughter] said two things -- she said three things. She said, ‘I don’t want to testify. I don’t want to testify against my dad. I don’t want to tell the truth.’ And I asked her --”
The prosecutor objected on the ground that defense counsel’s remarks misstated the testimony. The objection was overruled. Defense counsel continued:
“Go back and look at it. You remember it. She said, “‘I don’t want to testify. I don’t want to testify against my dad. I don’t want to tell the truth.’ And now she’s worried about that statement, but it’s in the record. Go look at it.
“I’ll show you some other things she made a big deal of on cross that were totally wrong, about never bringing up the pipe. It’s right there. She didn’t want to get into it.
“Imagine the intolerable situation, [B.R.] running out, your best friend, you’ve been in bed together, you kind of got to support her because if you don’t, this happens. And on the other hand, all these other charges come out. You heard her say on the stand, ‘I don’t know what happened.’ She said that. I asked her. That’s one question I asked her, something to that effect.
“What a horrible situation, intolerable position. Of course she doesn’t want to testify for the D.A. against her dad and damn well didn’t want to tell the truth what happened, didn’t want to be a snitch on [B.R.] and go through that whole thing in school and be a snitch on herself.
“Do you remember -- well, the Deputy D.A. said, well, you heard from [Daughter] Remember the detective made the comment in the -- you heard on the interview -- ‘Well, you know, [Daughter] said you came in the room. She said it again.’
“Well, no. I don’t think so. Well, I’ll have to talk to her.
“Guess what? That’s not evidence he came in the room. That’s a tactic. That’s what detectives do all the time.”
The prosecutor did not discuss Daughter’s testimony in her rebuttal argument.
iv. New trial motion
Defense counsel filed a new trial motion in which he contended that the prosecutor committed misconduct during “the first thirty minutes of [her] rebuttal argument” by attacking defense counsel’s character. The new trial motion was heard before appellant was sentenced. Defense counsel made a lengthy oral argument. First, he stated that he was not objecting to the prosecutor’s initial closing argument, as follows: “I mean her first closing was no problem. Obviously, she’s covering the law. She’s getting ready. It was fine.” Defense counsel then summarized the trial process from his perspective. In relevant part, he stated, “When [Daughter] decided not to testify, this definitely improved the odds [for acquittal] substantially. Although the D.A. still had much evidence, the chance now of a hung jury or even acquittal was in the air.” Yet, defense counsel later contradicted this assertion, arguing:
“When [Daughter] refused to testify, her short statements on the stand spoke volumes. I think it was improper for the Court to allow her to come in here. You had certain limiting because there was no -- there was no privilege for her not to come forward. But then with coming from the report, you did talk to her and that opened that can of worms. And I think in a sense it might have been better off if she testified and I could have attacked her.
“Then getting in front of the jury this insinuation somehow the defense and the repeated assertion from the prosecutor that I talked to this girl [Daughter] I never talked to her. I went out of the way not to talk to her because of this. When I heard she didn’t want to testify, I didn’t want to get wrapped up in it, but I got wrapped up in it anyway.
“She was emotional on the stand. And, in any event, the case went on….”
At the end of his argument, defense counsel said, “So I submit to you, I feel I had a chance, a real good chance to at least hang or something after your pretrial rulings and after the girl refused taking the stand.” In defense counsel’s view, the chance of acquittal was diminished by the prosecutor’s improper rebuttal argument.
The court denied the new trial motion. The court explained that “[c]ounsel’s comments disparaging counsel one way or another or belittling them are not to be condoned and are not condoned by the Court.” Yet, “[n]othing that the prosecutor did in this case infected the trial with unfairness to make [appellant’s] conviction a denial of due process.”
B. Appellant forfeited confrontation clause and fair trial challenges to admission of Daughter’s testimony why she refused to testify and to the prosecutor’s references to this testimony during her initial closing argument.
Appellant argues “the admission of [Daughter]’s ‘testimony’ denied the defendant a fair trial. It precluded the defendant from cross-examining [Daughter] and possibly eliciting exculpatory testimony from her. It invited the jury to speculate as to what she actually saw and did.” Appellant asserts that the court should have “limit[ed] the nature of the questions that could be posed to [Daughter] by the prosecutor” and it should have “instruct[ed] the jury not to speculate as to what [Daughter]’s testimony would be.” Appellant also claims that he was prejudiced by the prosecutor’s discussion of Daughter’s testimony in her initial summation. Respondent argues that these claims were forfeited because defense counsel did not interpose a timely objection on this basis during trial. Respondent is correct.
It is a well established principle of jurisprudence that only points that were raised and ruled on in the trial court are considerable on appeal. To preserve an evidentiary issue for review, timely objection must have been interposed on the same ground during trial. (Evid. Code, § 353; People v. Clark (1993) 5 Cal.4th 950, 988, fn. 13; People v. Kirkpatrick (1994) 7 Cal.4th 988, 1014-1015.) “Specificity is required both to enable the court to make an informed ruling on the motion or objection and to enable the party proffering the evidence to cure the defect in the evidence. [Citations.]” (People v. Mattson (1990) 50 Cal.3d 826, 854.)
Even constitutional claims are subject to the contemporaneous objection requirement. In People v. Burgener (2003) 29 Cal.4th 833 (Burgener), our Supreme Court rejected defendant’s claim that admission of certain evidence infringed his constitutional confrontation right because objection had only been interposed on hearsay ground at trial, as follows: “On appeal, defendant renews his claims that the evidence was hearsay and unduly prejudicial and adds that its admission violated his federal rights to due process and confrontation. We note preliminarily that defendant [forfeited] his constitutional claims by failing to articulate them below. [Citations.]” (Id. at p. 869.) Also, confrontation clause claims were rejected by our High Court partially on the ground of forfeiture in People v. Rodrigues (1994) 8 Cal.4th 1060 at page 1118 (Rodrigues) and in People v. Alvarez (1996) 14 Cal.4th 155 at page 186 (Alvarez).
Similarly, to preserve a claim of prosecutorial misconduct a defendant must timely object on this ground and request a curative instruction. This requirement is excused only when an objection would have been futile or the claimed misconduct could not have been cured by timely judicial admonishment. (People v. Hill (1998) 17 Cal.4th 800, 819.)
In this case, the record establishes that defense counsel did not object to the prosecutor’s examination of Daughter concerning the reasons why she did not want to testify on any constitutional grounds and he did not interpose an objection based on Evidence Code section 352. Also, defense counsel did not object to the prosecutor’s references to Daughter’s testimony during her initial summation. In fact, defense counsel stated during his oral argument supporting the new trial motion that he did not have any objection to the prosecutor’s initial closing argument; it “was fine.” Appellant argues that defense counsel preserved the issue for appellate review by raising it during his oral argument in support of the new trial motion. We disagree. The record demonstrates that the new trial motion was based on a single contention -- the prosecutor committed misconduct during his rebuttal closing argument by maligning defense counsel’s character. At one point during his oral argument supporting the motion, defense counsel did briefly assert that the court should have excluded Daughter as a witness. Yet, it was not evident at this hearing that defense counsel intended to cite the trial court’s decision to permit the prosecutor to call Daughter as a separate legal basis supporting the new trial motion. Defense counsel did not support his assertion that Daughter should have been excluded with any legal theory or supporting authority. Defense counsel did not articulate a specific claim of legal error connected with the prosecutor’s examination of Daughter In neither the written points and authorities nor the oral argument did defense counsel contend that the prosecutor’s examination of Daughter about the reasons why she refused to testify infringed appellant’s confrontation right or his rights to due process and a fair trial. The trial court did not rule on this point and defense counsel did not cite the omission in his oral response to the court’s ruling. Failure to obtain a ruling results in forfeiture of the issue on appeal. (See, e.g., People v. Cunningham (2001) 25 Cal.4th 926, 984.)
An objection under Evidence Code section 352 preserves a due process claim that, as an additional legal consequence, the contested ruling rendered the trial fundamentally unfair. (People v. Partida (2005) 37 Cal.4th 428, 436-437.)
In sum, the record shows that defense counsel did not object to the prosecutor’s examination of Daughter concerning the basis for her refusal to testify on the ground that it infringed appellant’s Sixth Amendment confrontation right, his fair trial right, or his due process right. Also, defense counsel did not challenge the propriety of the prosecutor’s references to Daughter’s testimony during her initial summation. If these points had been timely raised, the alleged errors were capable of cure by appropriate judicial ruling and admonishment. As a result, the claims were forfeited. (Burgener, supra, 29 Cal.4th at p. 869; People v. Hill, supra, 17 Cal.4th at p. 819.)
In any event, appellant was not prejudiced even under the stringent Chapman standard. (Chapman v. California (1967) 386 U.S. 18, 27.) Defense counsel had an unrestricted opportunity to examine Daughter on her refusal to testify and he availed himself of this opportunity. Testimony helpful to the defense was elicited during cross-examination, when Daughter testified that she told a person in the probation department that she was not sure what happened on the day in question. During the prosecutor’s redirect examination, Daughter refused to answer any questions about this statement and denied being pressured by her parents to refuse to testify. Defense counsel declined to re-cross Daughter Furthermore, Daughter’s repeated statement during direct and redirect that she did not want to “testify against [her] father” is subject to multiple interpretations and does not establish that the content of Daughter’s testimony would have mirrored B.R.’s testimony. Daughter was clear that she did not want to assist in the prosecution of her father by acting as a witness for the prosecution. Yet, she answered all questions posed to her by defense counsel. It was only the prosecutor’s questions she refused to answer. During the prosecutor’s redirect examination, Daughter said, “I’m not going to answer any more of your questions.” (Emphasis added.) It is not apparent what the content of Daughter’s testimony would have been if she had decided to comply with the court’s instructions to answer the prosecutor’s questions. Also, during closing arguments both parties used Daughter’s testimony to their advantage. Finally, during defense counsel’s oral argument supporting the new trial motion, he twice stated that Daughter’s refusal to testify increased the possibility of an acquittal. Based on the entirety of the record, we find it is not reasonably possible that the jury would have returned a more favorable verdict if the court had restricted the prosecutor’s examination of Daughter concerning the reason why she refused to testify or precluded reference to Daughter’s refusal to testify during closing arguments.
C. Appellant forfeited constitutional challenges to Samantha’s testimony.
Appellant also contends that the trial court “should have disallowed the testimony of Samantha Nelson as there was no way that her hearsay statements could be subjected to cross-examination.” Review of the record establishes that defense counsel neither objected to admission of Samantha’s testimony on this basis nor did he object on the basis of Evidence Code section 352. Defense counsel’s pretrial objection to this testimony was primarily based on the lack of timely discovery. The exact basis of defense counsel’s other objection is unclear, although the court interpreted defense counsel’s remark as a generalized contention that the hearsay statements did not fall within the excited utterance exception. At no time did defense counsel argue that Samantha’s testimony should be excluded because Daughter refused to testify or argue that admission of Samantha’s testimony infringed his rights to confrontation or a fair trial. Therefore, the issue was forfeited. (Burgener, supra, 29 Cal.4th at p. 869.)
D. The court did not have a sua sponte instructional obligation.
Appellant’s contention that the court had an obligation to instruct the jury not to speculate about the reasons why Daughter refused to testify also fails. Such an instruction was not requested by either party. “Trial courts generally have no duty to instruct on the limited admissibility of evidence in the absence of a request. [Citation.]” (People v. Lang (1989) 49 Cal.3d 991, 1020.) During the final jury charge, the court instructed the jury that the attorney’s “questions are not evidence. Only the witnesses’ answers are evidence. The attorneys’ questions are significant only if they help you to understand the witnesses’ answers. [¶] Do not assume that something is true just because one of the attorneys asked a question that suggested it was true.” This instruction was adequate to protect against speculation. Absent a request, no additional instruction was required.
II. Appellant was properly sentenced on count 2.
The court selected count 1 (forcible oral copulation of a child) as the principal term and imposed a sentence of 15 years to life imprisonment. For count 2 (forcible digital penetration of a child), the court exercised its discretion under sections 1170.1, subdivision (a) and 667.6, subdivision (c) and imposed a full-term consecutive sentence of 15 years to life imprisonment. It provided two reasons for this sentencing choice. First, “this crime definitely created separate trauma and harm on the young victim [apart] from the oral copulation discussed above.” Second, “[t]he objective of digital penetration was separate from the oral copulation ….”
It is undisputed that the factual predicates underlying counts 1 and 2 are crimes enumerated in section 667.6, subdivision (e). Yet, appellant argues the imposition of a full-term consecutive sentence for count 2 is statutorily unauthorized because the crime of forcible digital penetration of a child in violation of section 269, subdivision (a)(5) is not an offense that is listed in section 667.6, subdivision (e).
We rejected this argument in People v. Jimenez (2000) 80 Cal.App.4th 286 (Jimenez). Therein, we concluded that the absence of explicit reference to section 269 in section 667.6, subdivision (e) is not determinative, explaining:
“It would be irrational to suppose the Legislature intended that criminals who commit multiple violent sexual offenses would be exempt from the aggravated punishment prescribed by section 667.6 merely because their victims happened to be children under age 14 who were 10 or more years younger than they. Defendant does not proffer any decisional or historical support for his assertion that by enacting section 269 the Legislature created a separate sentencing scheme for violent sexual offenders who prey on a particular class of victims. He fails to account for the fact that characterization of section 269 as such would work to the advantage of pedophiles by exempting them from the additional penalties that would ordinarily result when they commit multiple offenses or prey upon more than one victim.” (Jimenez, supra, 80 Cal.App.4th at p. 291.)
Jimenez reflects the current state of the law and there is no persuasive basis to depart from our previously expressed resolution of this point. Therefore, the imposition of a full-term consecutive sentence for count 2 was not erroneous as a matter of law.
Appellant also challenges the sufficiency of the court’s statement of reasons supporting this sentencing decision. Respondent replies that this claim was forfeited because defense counsel did not object on this basis during the sentencing hearing. Respondent is correct. Defense counsel did not challenge the sufficiency of the court’s statement of reasons justifying imposition of a full-term consecutive sentence for count 2. In People v. Scott (1994) 9 Cal.4th 331 (Scott), our Supreme Court determined that defects such as the court’s failure to properly articulate reasons for a sentencing choice are subject to the waiver rule and cannot be raised for the first time on appeal. (Id. at p. 356.) Following and applying Scott, we conclude that appellant forfeited review of the sufficiency of the court’s statement of reasons supporting imposition of a full-term consecutive sentence for count 2.
Appellant also asserts the admission of Daughter’s testimony “provided an improper basis for the court’s harsh sentence.” Objection was not interposed on this ground during the sentencing hearing. Therefore, the contention is forfeited. (Scott, supra, 9 Cal.4th at p. 356.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: Dawson, J., Kane, J.