Filed 1/22/20 P. v. Lopes CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

SERGIO MORENO LOPES,

Defendant and Appellant.

F075919

(Super. Ct. No. F15907085)

OPINION

APPEAL from a judgment of the Superior Court of Fresno County. Houry A. Sanderson, Judge.

Janet J. Gray, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Jesse Witt, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Defendant Sergio Moreno Lopes was convicted by a jury of forcible rape, first degree burglary, and indecent exposure against one victim, and first degree burglary and first degree robbery of a second victim. He was sentenced to 25 years to life plus seven years in prison. On appeal, he contends: (1) his convictions for the crimes against the second victim were not supported by substantial evidence; (2) he was denied effective assistance of counsel when defense counsel referred to his prior conviction for second degree burglary; (3) the court abused its discretion in imposing the upper term on the robbery count against the second victim; and (4) if his third claim of error was forfeited below, defense counsel was ineffective for failing to timely object. We affirm the judgment.

STATEMENT OF THE CASE

On May 23, 2017, the Fresno County District Attorney filed a first amended consolidated information charging Lopes with the following crimes: forcible rape against victim Jane Doe (Pen. Code, § 261, subd. (a)(2); count 1), first degree burglary against Jane Doe (§ 459/460, subd. (a); count 2), indecent exposure against Jane Doe (§ 314.1; count 3), first degree residential robbery against victim E.M. (§ 211; count 4), and first degree burglary against E.M. (§ 459/460, subd. (a); count 5). As to counts 1 and 5, it was alleged Lopes personally used a knife (§ 12022, subd. (b)(1)). Also as to count 1, it was alleged Lopes committed the rape during the commission of a first degree burglary with the intent to commit rape by force (§ 667.61, subd. (d)(4)), and committed the rape during a burglary (§ 667.61, subd. (e)(2)) while personally using a dangerous or deadly weapon in the commission of the rape (§ 667.61, subd. (e)(3)). As to count 2, it was alleged a non-accomplice was present in the residence (§ 667.5, subd. (c)(21)).

The jury convicted Lopes on all counts and found true all special allegations. He was sentenced to a term of 25 years to life plus seven years as follows: On count 1, he received 25 years to life pursuant to section 667.1, subdivisions (c) and (d), plus one year for the use of a knife to run consecutively to the term imposed on count 4; and on count 4, he received the upper term of six years. Sentence was imposed and stayed on counts 2 and 5. On count 3, Lopes received credit for time served.

On June 30, 2017, Lopes filed a timely notice of appeal.

FACTS

Counts One, Two, and Three

On the morning of July 28, 2013, 76-year-old Jane Doe was watering her lawn behind her apartment in Sanger. As she watered, she saw a man on the other side of her fence with his pants and underwear down below his knees. When the man moved closer, she saw he was touching his penis and moving his hand. She went inside her apartment and tried unsuccessfully to call police. She went into her bedroom to get her cellphone to try to call police again and saw the man jump over the fence onto her side. The man then entered her apartment, uninvited.

The man, who was holding a knife, grabbed Doe by the neck. He told her to walk towards her bed and then told her to take off her clothes. Doe complied and was scared. The man put the knife on the foot of the bed and took off his clothes. He told Doe to lie down and he climbed on top of her.

The man bit Doe on the neck and “everywhere,” and kissed her hard on the mouth and neck. The man penetrated her vagina “with great force.” The penetration hurt Doe “a lot” and the man bit her hard on the mouth. He ejaculated inside of her and then put on his pants and underwear, grabbed the knife, and left.

Doe was taken to a clinic for an examination. Sperm was found on vaginal swabs, from which a DNA profile was generated and stored in CODIS, the state’s DNA and forensic identification databank.

In November 2015, Lopes was convicted of a second degree burglary, unrelated to any of the crimes in this appeal, and as a result had to submit a DNA sample to CODIS. The DNA profile generated from this 2015 sample matched the profile generated from the sperm from Jane Doe’s vaginal swab.

In 2015, Jane Doe was unable to positively identify Lopes from a six-pack photograph lineup produced by the police, but was able to identify him at trial. Doe said she had never seen Lopes prior to the day he raped her.

Counts Four and Five

At 6:00 o’clock in the morning on August 19, 2013, 57-year-old E.M. woke up in her house in Parlier and headed toward her kitchen to make lunch for her husband. The other five members of her family who lived at the house were asleep. Realizing she had forgotten her apron, she returned to her bedroom to get it. When she got back to the kitchen, she found a man she had never seen before standing in the doorway of an open sliding glass door. The man held his finger to his mouth as if to make a “shushing” gesture. E.M. screamed and the man fled into the backyard and climbed over a six-foot tall wooden fence. The man took one of E.M.’s phones from a table before leaving. After the man left, E.M. noticed a hat outside of the door. Neither E.M. nor any of her family members who testified had ever seen the hat before.

The police responded very quickly. E.M. told police the man had a butter knife and was pointing it toward her. However, at trial she could not recall whether the man was holding a knife. An officer wearing gloves picked up the hat, delivered it to the Parlier police department office, and placed it in a paper evidence bag.

A DNA swab was taken from the inside of the hat where the person wearing it would sweat from which a DNA profile was generated. There was no indication of more than one contributor of the DNA found on the hat. This profile would later prove to match the profile from the 2015 sample Lopes provided to CODIS. Lopes was thereafter contacted to obtain a reference sample, which was tested and resulted in a DNA profile matching the one from the hat.

DISCUSSION

I. Substantial Evidence Challenge

Lopes maintains his convictions for first degree robbery (count 4) and first degree burglary (count 5) against E.M. are not supported by substantial evidence and must be reversed. According to Lopes, the DNA evidence from the hat found in E.M.’s backyard, which was the only evidence connecting him to the crime, was insufficient to convict him. We find this contention to be meritless.

“The Due Process Clause of the Fourteenth Amendment denies States the power to deprive the accused of liberty unless the prosecution proves beyond a reasonable doubt every element of the charged offense” (Carella v. California (1989) 491 U.S. 263, 265, citing In re Winship (1970) 397 U.S. 358, 364), and the verdict must be supported by substantial evidence (People v. Zamudio (2008) 43 Cal.4th 327, 357 (Zamudio)). On appeal, the relevant inquiry governing a challenge to the sufficiency of the evidence “ ‘is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” (People v. Nguyen (2015) 61 Cal.4th 1015, 1055 (Nguyen).) “The record must disclose substantial evidence to support the verdict—i.e., evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (Zamudio, supra, at p. 357.)

“In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence.” (Zamudio, supra, 43 Cal.4th at p. 357.) “ ‘[I]t is the jury, not the appellate court which must be convinced of the defendant’s guilt.’ ” (Nguyen, supra, 61 Cal.4th at pp. 1055–1056.) “A reversal for insufficient evidence ‘is unwarranted unless it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support” ’ the jury’s verdict.” (Zamudio, supra, at p. 357.) However, “speculation, supposition and suspicion are patently insufficient to support an inference of fact.” (People v. Franklin (2016) 248 Cal.App.4th 938, 951; accord, People v. Marshall (1997) 15 Cal.4th 1, 35; People v. Xiong (2013) 215 Cal.App.4th 1259, 1268.)

Lopes contends it was speculation on the jury’s part to conclude he was the perpetrator of the robbery and burglary involving E.M. He makes this argument despite that only his DNA was found on the hat and that neither E.M. nor any of her family members who testified had ever seen the hat before. The hat was also found in the backyard, which is where the perpetrator fled and presumably entered from. The backyard was surrounded by a fence and was not open to the public. Based on all of these facts, it was quite reasonable for a jury to conclude the hat belonged to the person who had just burglarized the home. Lopes contends the hat could have gotten into the backyard “by any number of different ways,” but fails to provide any alternative theories. Our concern is whether there was sufficient evidence of solid value to inspire confidence in the verdicts rendered, and we conclude there was. It was not at all irrational for the jury to conclude Lopes was the perpetrator based on the DNA evidence, and Lopes’s claim to the contrary strains credulity. His convictions on counts 4 and 5 are affirmed on this ground.

II. Evidence of Prior Conviction

Lopes contends he was denied effective assistance of counsel because counsel argued against his interest when she referred to his prior conviction for second degree burglary, which suggests he had the propensity to commit burglary even though evidence of the prior conviction was not admitted for that purpose. He argues his two burglary convictions and the true finding on the special allegation he burglarized Jane Doe’s home with the intent to commit rape should be reversed. We disagree. Defense counsel had a sound tactical reason for discussing Lopes’s prior conviction, and the prior conviction was not discussed in such a manner as to deprive Lopes of his right to effective assistance of counsel.

A. Background

During trial, the parties entered into a stipulation that provided Lopes had suffered a 2015 second degree burglary conviction and as a result had to submit a sample of his DNA for inclusion in CODIS. This stipulation was read to the jury prior to the introduction of DNA evidence. No instruction was given or requested regarding the purpose of the admission of the prior conviction.

Defense counsel said the following to the jury during closing argument:

“Now, you might be thinking to yourselves, well, you told us that he has a conviction for second degree burglary. So as I’m sitting here as a juror I’m thinking to myself, well, more likely than not, Mr. Lopes is the person that entered that house. And that’s valid. More likely than not. But more likely than not is not the burden of proof. The burden of proof is beyond a reasonable doubt. And I want to actually get into reasonable doubt a little bit more later; okay? I don’t want to do it right now. But I want you to keep that in the back of your head. I want you to keep that in the back of your head that more likely than not is not the standard of proof, and it shouldn’t be in a criminal case.

“For those reasons, at the end I will ask you to find him not guilty of Count Four and Count Five of the Information.

“I want to move on to Ms. Jane Doe. [¶] … [¶]

“… Mr. Lopes is being accused of rape. But in this case it goes beyond that. And what do I mean by that. Count One of the Information charges him with rape. [ ] This is a copy of one of the verdict forms that you’re going to get when you go back into the deliberation room with your binder. This is actually going to illustrate—this is actually two pages of one of the verdict forms. Prosecutor talked to you about if you find him guilty, for example, of rape, there’s still some other things that you have to look at. So you can find him guilty of rape. That is Count One. But then, on top of that you will still be required to answer a few other questions. Now, that is independent of the rape charge; okay? You can find him guilty of the rape charge, but then, you will have to look at the additional special allegations. And the burden of proof on those does not go any lower. And of those special allegations your decision still has to be unanimous. And what I mean by that is, if all 12 of you cannot agree that it’s true, or if all 12 of you cannot agree that it’s not true, you can be dead-locked on those allegations; okay? So I want to put that up there for you, cause I want you to see how you’re going to see it in the back. Cause I really need you to pay attention to that. Because at the beginning when I made my opening statement, recall that I told you that at the conclusion of this case you would have to ask yourself two very important questions: One, did he actually, personally use a knife in the commission of the crime of the rape; and two, that other special allegation. Okay? Whether he actually entered that home. Whether he crossed that threshold. That door. If the intent that he had in his mind was to go in and commit rape. Okay? So those two things are independent, okay, of whether you find him guilty of rape.”

Later in oral argument, defense counsel said:

“Do not automatically say, well, she got—she was raped, therefore, his intent when he went in there was to rape her. Something independent. And I don’t want to keep harboring on this, but it is important. He doesn’t go in—now remember, she said he goes in, pants are up, belt is buckled. She says, you know, wearing underwear. She can’t really tell that until probably later when he takes his clothes off. Couldn’t tell if he had an erection; okay? And once they’re in the room doesn’t have sex with her right away. Can’t couldn’t get an erection. Took him minutes. Fifteen more minutes. He had to masturbate again to get [an] erection again; okay? So as callous and as cold and as uncomfortable as that sounds, there is a very good chance that when he entered, he didn’t even know who was there.”

Counsel later said:

“Focus on that allegation of entering the home with the intent—with the specific intent to commit a rape. Read a little part of it right now, but I want you to remember, okay, the stipulation that we entered into with the prosecutor to let you all know why—why his DNA as a convicted felon is in [CODIS] because of that prior conviction for second degree burglary. So I’ve told you—and maybe that state of mind that he was in, maybe he went into that other apartment thinking he was going to, you know, maybe score some drugs. But what about the other reasonable inference that you could make that not knowing that Ms. Doe was alone in that apartment he went in there to commit another crime. What I mean by that is maybe he went in there looking to steal something. Looking to get something to sell. Buy some more drugs. Who knows. But isn’t that more reasonable to believe that he went in that home with an intent other than to commit a rape? Given what you know about how his DNA as a convicted felon was entered into [CODIS], given that he has that—the prosecutor has not presented any evidence that he’s either been arrested or accused of any other sexual assault in his life.”

Defense counsel concluded her closing argument with the following: “And in the end you will find not true any of those special allegations and find him not guilty of Count Four and Five of the allegation. Thank you.” Defense counsel did not make a similar express request to the jury for a not guilty verdict on the crimes alleged in counts 1 through 3.

B. Discussion

1. Applicable Law

Criminal defendants have the right to effective assistance of counsel under both the Sixth Amendment of the federal Constitution and the California Constitution, article I, section 15. “ ‘The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.’ ” (In re Valdez (2010) 49 Cal.4th 715, 729 (Valdez), quoting Strickland v. Washington (1984) 466 U.S. 668, 686 (Strickland).) “ ‘A convicted defendant’s claim that counsel’s assistance was so defective so as to require reversal of a conviction … has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction … resulted from a breakdown in the adversary process that renders the result unreliable.’ ” (Valdez, at p. 729.)

To establish ineffectiveness, a defendant “must show that his attorney’s ‘representation fell below an objective standard of reasonableness’ ‘under prevailing professional norms’ [citations] and ‘that 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’ [citation]. ‘This second part of the Strickland test “is not solely one of outcome determination. Instead, the question is ‘whether counsel’s deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair.’ ” ’ ” (Valdez, supra, 49 Cal.4th at p. 729; In re Hardy (2007) 41 Cal.4th 977, 1018–1019; Williams v. Taylor (2000) 529 U.S. 362, 390–391.)

Appellate scrutiny of defense counsel’s performance must be highly deferential. “ ‘It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. [Citation.] A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.” ’ ” (Valdez, supra, 49 Cal.4th at pp. 729–730.) To overcome this presumption, “the record must affirmatively disclose the lack of a rational tactical purpose for the challenged act or omission.” (People v. Ray (1996) 13 Cal.4th 313, 349.)

2. Analysis

Lopes asserts that defense counsel’s comments during closing argument suggested to the jury that it may consider his prior burglary conviction as evidence that he has a propensity to burglarize. The jury was in turn inclined to conclude, according to Lopes, that he was more likely than not the perpetrator of the current offenses. We disagree with this assessment of counsel’s comments. Counsel told jurors they may be thinking Lopes was “more likely than not” the perpetrator based on his prior conviction, but then cautioned that “more likely than not” is not the standard of proof—“beyond a reasonable doubt” is.

Lopes also seems to suggest counsel’s discussion of his prior conviction was effectively an admission of guilt. Again, we disagree this was the intent or effect of counsel’s comments. Defense counsel’s apparent strategy during closing argument was to argue that if Lopes forcibly raped Jane Doe, he did not enter her home with the intent to do so, but instead entered for some other purpose. This argument was obviously aimed at the special allegation connected with count 1 that Lopes committed the rape during the commission of a first degree burglary with the intent to commit forcible rape, which is what supported a sentence of 25 years to life. Had the jury found that allegation not true, Lopes could have potentially been sentenced to only 15 years to life, or possibly even a determinate term of only up to six years, depending on what other special allegations the jury found true. At no point during closing argument did defense counsel admit Lopes’s guilt on any of the charges. Granted, defense counsel did not expressly deny Lopes’s guilt on the forcible rape charge like she denied guilt on the charges involving E.M., but by no means did she admit guilt. Furthermore, defense counsel advised the jury Lopes had never been convicted of a sexual offense.

Considering the great weight of the evidence, we conclude there was a rational tactical purpose for defense counsel to disclose to the jury Lopes’s prior burglary conviction. The evidence was overwhelming Lopes masturbated outside in view of Jane Doe immediately prior to entering her home with a knife and forcibly raping her. This is compelling evidence Lopes entered her home with the intent to rape her. Defense counsel probably recognized the strength of the evidence that Lopes had raped Doe, and decided the best strategy during closing argument would be to disclose the fact Lopes had been convicted of a prior second degree burglary—and had never been convicted of a sexual offense—as part of an effort to convince the jury Lopes did not enter the home with the intent to commit rape. Had this argument succeeded, Lopes probably would not have received an indeterminate life sentence.

In sum, the record reveals a sound tactical purpose for defense counsel’s discussion of Lopes’s prior burglary conviction. We also do not believe there is any reasonable probability any of the verdicts would have been different but for the discussion of the prior conviction because the evidence supporting each count and special allegation was overwhelming. We accordingly deny this claim of ineffective assistance of counsel.

III. Imposition of Upper Term on Count 4

Lopes contends the trial court abused its discretion in imposing the upper term on count 4, the robbery against E.M. Specifically, he argues the court impermissibly relied on his lack of remorse as an aggravating factor and failed to consider mitigating factors. To the extent the issue is forfeited, Lopes contends defense counsel rendered ineffective assistance. We conclude imposition of the upper term was proper, and we accordingly reject Lopes’s ineffective assistance of counsel claim.

A. Sentencing Hearing

At the start of the sentencing hearing, the trial court noted it had reviewed the probation report. The report noted Lopes said he used to drink 2-3 beers per week, but could not remember the last time he had a drink. He also said he smoked one “joint” of marijuana daily and had last smoked on the date of his arrest in this case. He also said he had tried methamphetamine before but could not recall when or how much he had used. He advised he had attended a few Alcoholics Anonymous meetings in 2003 in Mexico because he “wanted to see what it was like.” Lopes also had been injured eight years before his interview by falling from a ladder. He also reported being raped by “some big guy” when he was 11 years old. The report noted Lopes’s record contained only one other conviction for second-degree burglary, which was committed after the crimes in the instant case.

Lopes told the probation officer he had consensual sex with Jane Doe. When asked whether he was attracted to Jane Doe, who was 76 years old at the time of the offense, he said, “It was like an adventure. I never did that. Yes, there was an attraction.” He said Jane Doe was lying when she said she did not know him, and he denied masturbating outside Jane Doe’s home.

As to the incident involving E.M., Lopes said he was sitting outside of E.M.’s house, smoking “weed,” and he put his hat down and left it there. He denied entering the house, stealing a phone, or encountering occupants.

The probation report listed three factors in aggravation: (1) the victim was particularly vulnerable; (2) Lopes had engaged in violent conduct which indicates a serious danger to society; and (3) Lopes’s prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness. The report noted only one factor in mitigation: Lopes had no prior record, or an insignificant record of criminal conduct, considering the recency and frequency of prior crimes.

Defense counsel asked the court to run the sentence on the robbery count involving E.M. concurrently with the 25 years to life sentence on the forcible rape count. In the alternative, defense counsel requested the court impose the mitigated term of three years for the robbery count involving E.M. because Lopes did not use physical violence against E.M. nor did he verbally threaten her with violence.

The trial court agreed with probation that the current crimes were “particularly revolting and callous.” The court said Lopes “[preyed] on strangers that were extremely vulnerable in their home where they would have been the safest, and instead violence was brought into their home by [his] presence.” The court also said some of the things Lopes told the probation officer in the presentence interview were “very disturbing” and that they suggested he has “no remorse” and “absolutely no insight into the acts” he committed against 76-year-old Jane Doe. The court stated Jane Doe was a “vulnerable, elderly woman that is most likely, as [the prosecutor] said, will never get over the trauma that she experienced at [Lopes’s] hands.” The court proceeded to sentence Lopes to 25 years to life in prison for the forcible rape (count 1), plus one year for the use of the knife.

As to count 4, the court said: “I have considered counsel’s remarks, but had there been a slight of remorse shown in this case, [ ], even an indication—a glimmer of insight by [Lopes] when he chose to speak with Probation, it may have swayed me into believing that even the mid-term would be appropriate.” The court said while Lopes’s prior criminal history was not extensive, his crimes had escalated. The court also said the current offenses, considered together, make even the middle term inappropriate. The court further said: “There’s absolutely no remorse shown. No empathy shown. No sympathy shown. This is a person who has no concern for his actions and finds nothing other than just explanations that make absolutely no sense.” The court proceeded to impose the aggravated term on count 4 of six years, to run consecutively with the term on count 1.

B. Forfeiture and Ineffective Assistance of Counsel

A defendant’s failure to object to the trial court’s sentencing determinations when given a “meaningful opportunity” to do so forfeits the claim on appeal. (People v. Scott (1994) 9 Cal.4th 331, 355–356 (Scott); see People v. de Soto (1997) 54 Cal.App.4th 1, 7–8 [failure to impose a specific objection at sentencing forfeits claim on appeal].) Acknowledging his failure to object below, Lopes asserts the issue was not forfeited on appeal, but should we find otherwise, any failure to object was the result of ineffective assistance of counsel. We conclude Lopes forfeited his claim.

To establish ineffective assistance of counsel based on counsel’s failure to object, Lopes must show (1) counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel’s deficient performance was prejudicial. (Strickland, supra, 466 U.S. at pp. 687–¬¬¬¬¬¬¬688; People v. Ledesma (1987) 43 Cal.3d 171, 216–217 (Ledesma).) To establish prejudice, Lopes must make a showing “sufficient to undermine confidence in the outcome” that but for counsel’s deficient performance there was a “reasonable probability” that “the result of the proceeding would have been different.” (Strickland, at p. 694; Ledesma, at pp. 217–218.) On review, we can adjudicate an ineffective assistance claim solely on the issue of prejudice without determining the reasonableness of counsel’s performance. (Strickland, at p. 697; People v. Hester (2000) 22 Cal.4th 290, 296¬–297.) We will do so here because, as we will explain, imposition of the upper term was proper and there is thus no reasonable probability Lopes would have received a lesser sentence had counsel objected.

C. Standard of Review for Sentencing Choice

A trial court’s decision to impose the upper term is subject to review for abuse of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847.) A trial court abuses its discretion if it “relies upon circumstances … not relevant to the decision or that otherwise constitute an improper basis for [its] decision.” (Ibid.) In exercising its sentencing discretion, the court may consider circumstances in aggravation or mitigation, and any other factor reasonably related to the sentencing decision. (Cal. Rules of Court, rule 4.420(b).) Even one aggravating factor is enough to justify imposition of an upper term, and a court may minimize or even completely disregard mitigating factors without stating its reasons. (People v. Lai (2006) 138 Cal.App.4th 1227, 1258.)

D. Analysis

Lopes contends the court improperly relied on his lack of remorse as an aggravating factor. This is the only aggravating factor with which he takes issue. The People argue the trial court’s comments do not indicate the court considered Lopes’s lack of remorse to be an aggravating factor, but instead indicate the court may have considered a showing of remorse to be a mitigating factor. However, our review of the transcript of the sentencing hearing leads us to conclude the court did consider Lopes’s lack of remorse an aggravating factor. However, in the context of this case, this was not improper.

Lack of remorse may be considered an aggravating factor, “unless the defendant has denied guilt and the evidence of guilt is [in conflict].” (People v. Leung (1992) 5 Cal.App.4th 482, 507.) Although Lopes has denied his guilt, the evidence of his guilt as to all charges, including count 4, was overwhelming and not in conflict. That a hat with only his DNA found on it was located in E.M.’s backyard is compelling evidence he was the perpetrator. Also, it was not as if Lopes chose not to speak during his presentence interview, only to have his silence be used against him as evidence he lacks remorse. To the contrary, Lopes chose to speak to the probation officer regarding both the rape of Jane Doe and the burglary and robbery of E.M., and offered far-fetched explanations for his conduct despite the overwhelming evidence against him. The court was allowed to construe the implausibility of the explanations he gave for his conduct as evidence of a lack of remorse, and was in turn allowed to consider this as an aggravating factor.

Lopes also contends the trial court failed to consider mitigating factors, including his alleged drug addiction, his mental condition, and that he was allegedly raped as a boy. First, the trial court expressly stated that it had reviewed the probation report and “certainly recalled” the trial testimony. Second, while a trial court must consider applicable aggravating and mitigating factors, it may minimize or disregard mitigating factors without stating its reasons. (People v. Avalos (1006) 47 Cal.App.4th 1569, 1583; People v. Jones (1985) 164 Cal.App.3d 1173, 1181.) “Absent an explicit statement by the trial court to the contrary, it is presumed the court properly exercised its legal duty to consider all possible mitigating and aggravating factors in determining the appropriate sentence.” (People v. Oberreuter (1988) 204 Cal.App.3d 884, 888, disapproved on other grounds in People v. Walker (1991) 54 Cal.3d 1013, 1022.) While the trial court may not have expressly discussed all of the mitigating factors, it does not mean it did not consider them and we find no error in this regard.

The court did not abuse its discretion in considering Lopes’s apparent lack of remorse as an aggravating factor. Finding no error, we conclude there is no reasonable probability Lopes’s sentence would have been different had defense counsel raised an objection to the sentence.

DISPOSITION

The judgment is affirmed.

SNAUFFER, J.

WE CONCUR:

HILL, P.J.

DETJEN, J.