Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super. Ct. No. CC459292
McAdams, J.
Defendant Roger Oduca Ramirez was convicted by jury of one count of first degree murder (Pen. Code, § 187) for stabbing his wife to death. The jury found true enhancement allegations that defendant personally used a deadly and dangerous weapon, a knife, to commit the murder. (§ 12022, subd. (b)(1).) The court denied defendant’s new trial motion and sentenced him to 25 years to life for the murder, plus one year for the weapons enhancement, for a total sentence of 26 years to life.
Unless otherwise stated, all further statutory references are to the Penal Code.
On appeal, defendant argues his counsel’s performance was so deficient with regard to his opening statement, his examination of witnesses and presentation of evidence, and his closing argument, that it amounts to an abandonment of defendant. Alternatively, he contends his attorney’s deficient performance denied him the effective assistance of counsel. Finally, he argues the court erred when it denied his new trial motion based on ineffective assistance of counsel. We find neither abandonment nor ineffective assistance of counsel and affirm the judgment.
Facts
Prosecution Case
In 2004, defendant and his wife Rosanna Ramirez (Rosanna) were estranged and living apart. Rosanna lived with her sister and brother-in-law. Defendant lived with his son in a converted garage apartment at his cousin, Esther Ramirez’s (Esther) house.
For ease of reference and clarity, and not out of disrespect, we shall hereafter refer to members of the Ramirez family by their first names.
On the evening of July 7, 2004, a group of Esther’s friends gathered at Esther’s house to socialize. They watched television in the living room of the main house, then moved into the garage apartment to play cards. One of the guests, Darlene Domingo, testified at trial. According to Domingo, Rosanna arrived between 8:00 and 9:00 p.m. and joined one of the card games in the garage. Defendant did not play cards that evening. He walked by the card tables and seemed to be his “normal self.” He did not talk to Domingo.
Between midnight and 12:30 a.m. on July 8, 2004, Rosanna decided to leave the party. Domingo asked Rosanna if she could have a ride home. Rosanna agreed, but said she needed to talk to defendant first. Rosanna and defendant stepped outside to the walkway adjacent to the garage apartment. After they got outside, Domingo heard them arguing. It was not unusual for defendant and Rosanna to argue. Domingo saw defendant come back into the garage apartment alone. He walked through the kitchen, into his room. Domingo asked him whether Rosanna had left. Defendant did not respond to her question. He did not appear to be angry. A couple of minutes later, he went back outside.
Domingo heard Rosanna say, “ ‘Stop it, Roger’ ” and saw Rosanna run into the garage apartment with defendant chasing her. Domingo saw blood but did not know where it came from. She saw defendant push Rosanna to the floor and stab her, first on her right side, then in the back. Finally, Domingo told defendant, “ ‘can you stop it because she’s dead already.’ ” Defendant responded, “ ‘It’s good for her because she was cheating on me and she never helped me for my immigration.’ ” His face looked “normal” when he said this.
Andrea Ochoa lived next door to Esther. On the night of the killing, she heard “paranoid screaming.” She went outside, looked over the fence, and saw two women screaming in the garage apartment next door. She saw a woman face down, covered in blood. All of a sudden, she saw defendant come out, get on his knees, and stab the woman three times in the back. Defendant looked mad but did not say anything. Ochoa called 911.
San Jose Police Officer Steven Jeffrey was dispatched to defendant’s home after a report of a stabbing. As he walked up the driveway, he saw defendant walk out of the garage area. The officer asked defendant what was going on and defendant said he had just killed his wife. Defendant seemed “very calm, cool, collected, nonchalant” to the officer. As the officer took defendant into custody, defendant showed him where to find the knife, which was covered with blood, at the base of a fence near the garage. Defendant had blood all over his hands and there was blood on the ground near the door to the garage apartment. Defendant did not tell Officer Jeffrey where the body was, ask him to call an ambulance, or express any concern.
Crime Scene Investigator Michael Hoopes described the scene and his efforts to document and process the evidence. The evidence at trial included photographs of the garage apartment, the victim, the knife, Rosanna’s clothing, and blood on the walkway, a door frame, and a door knob.
Dr. Joseph O’Hara, a forensic pathologist in the coroner’s office, testified regarding the autopsy, which revealed that Rosanna had suffered 10 stab wounds and five incision-type wounds to various parts of her body. She had a one quarter-inch deep stab wound to her left shoulder, a five-inch deep stab wound on the center of her upper back, and a constellation of four wounds in her left chest area that were six to eight inches deep. One of the chest wounds went through the esophagus behind the heart and through the upper lobe of the right lung. Rosanna had two wounds that overlapped on the left side of her abdomen that were six and one half inches deep and went through the colon into the soft tissue at the back of the abdominal cavity. She had a three and one quarter-inch deep stab wound in the lower portion of her left chest and a one and a half-inch deep stab wound on her upper left arm. She had incision-type wounds on her left wrist, left thumb, left forearm, and right middle finger. Dr. O’Hara testified that it takes a significant force to reach a depth of six or eight inches.
Detective Rob Millard took a recorded statement from defendant within a few hours of the killing. The jury heard defendant’s recorded statement. In the statement, defendant told the detective Rosanna was cheating on him with her sister’s husband. Defendant found out about it a year or two before the killing. Defendant said he and Rosanna were having money problems and she would get angry with him if he did not give her money.
Defendant told the detective his wife was a United States citizen, but he was not. He wanted her assistance in obtaining a green card, but she refused to go to the immigration office with him. She told him she did not want to be married to him anymore and threatened divorce. On the night she died, defendant and Rosanna argued about her affair and “why she [did not] want to come to the immigration.” Defendant was angry that she was “always insulting” him. He talked to her first, then decided to stab her. He did not think he would kill her. He went inside and got a knife that he used when he worked in security. He kept the knife in his room. He hid the knife behind his hip and back. He said he stabbed her two or three times; he could not recall where he stabbed her. As he stabbed her, he said, “Why you do that to me?” He stabbed her while she was on the ground because he was angry. He does not know what happened in those minutes and seconds. Twice, he said he could not control himself.
Defense Case
Defendant did not testify or present any witnesses. His counsel cross-examined the prosecution witnesses.
Discussion
I. Abandonment
Defendant argues his trial counsel’s performance was so substandard that it amounted to an abandonment of his client. Citing Unites States v. Cronic (1984) 466 U.S. 648 (Cronic), defendant contends that defense counsel failed to subject the prosecution’s case to meaningful adversarial testing, thereby depriving him of his Sixth Amendment right to counsel, and that counsel’s errors require reversal without consideration of prejudice.
In Cronic, the court stated: “[T]he adversarial process protected by the Sixth Amendment requires that the accused have counsel acting in the role of an advocate. [Citation.] The right to the effective assistance is thus the right of the accused to require the prosecution’s case to survive the crucible of meaningful adversarial testing. When a true adversarial criminal trial has been conducted – even if defense counsel may have made demonstrable errors – the kind of testing envisioned by the Sixth Amendment has occurred. But if the process loses its character as a confrontation between adversaries, the constitutional guarantee is violated.” (Cronic, supra, 466 U.S. at pp. 656-657, internal quotation marks and fns. omitted.) The Cronic court identified three situations involving a breakdown of the adversarial process: (1) where there had been a “complete denial of counsel” (id. at p. 659); (2) where “counsel entirely fail[ed] to subject the prosecution’s case to meaningful adversarial testing” (ibid.); and (3) where counsel was forced to represent a defendant under circumstances which a competent counsel could not do (id. at pp. 659-662). Under any of these circumstances, a defendant need not show prejudice. (Id. at pp. 658-659.)
Defendant contends the instant case falls within the second situation and that his trial counsel failed to subject the prosecution’s case to meaningful adversarial testing because his attorney made a weak, conciliatory opening statement, failed to adequately cross-examine witnesses, and failed to argue facts favorable to defendant in his closing argument.
After carefully reviewing the record, we do not conclude that defense counsel “entirely fail[ed] to subject the prosecution’s case to meaningful adversarial testing.” (Cronic, supra, at p. 659, italics added.) In Bell v. Cone (2002) 535 U.S. 685 (Cone), the United States Supreme Court emphasized the narrowness of its holding in Cronic. “When we spoke in Cronic of the possibility of presuming prejudice based on an attorney’s failure to test the prosecutor’s case, we indicated that the attorney’s failure must be complete.” (Id. at pp. 696-697.)
The defendant in Cone was convicted of two counts of first degree murder and other offenses and sentenced to death. (Cone, supra, 535 U.S. at pp. 689-690.) In mounting a guilt phase insanity defense, defense counsel in Cone presented psychological and neuropharmacological evidence of the defendant’s substance abuse and posttraumatic stress related to his military service in Vietnam, testimony by the defendant’s mother, and evidence of remorse. During the sentencing phase of the trial, defense counsel called the jurors’ attention to the mitigating evidence they had heard in the guilt phase of the trial and asked them to exercise mercy. Defense counsel objected to the prosecutor’s proffer of photographs of the victims’ decomposing bodies. After the junior prosecuting attorney gave a “low-key” summation, defense counsel waived closing argument, thereby foreclosing the lead prosecutor, who by all accounts was a highly effective advocate, from offering rebuttal. (Cone, supra, 535 U.S. at pp. 690-692.) The high court rejected the defendant’s claim that his counsel failed to subject the prosecution’s case to adversarial testing within the meaning of Cronic. (Id. at p. 697.) The court concluded that when a defendant can point only to specific attorney errors and not a complete failure to challenge the prosecution’s case, the applicable standard is the two-pronged test for ineffective assistance of counsel from Strickland v. Washington (1984) 466 U.S. 668 (Strickland), which requires a showing of both deficient performance and prejudice. (Id. at p. 698.)
In Strickland, which was decided the same day as Cronic, the high court announced a two-part test for evaluating claims of ineffective assistance of counsel, (Cone, supra, 535 U.S. at pp. 695.) We discuss that test further in section II of this opinion.
Defendant argues his attorney abandoned him because he made a conciliatory opening statement in which he stated the facts were not in dispute, he failed to adequately cross-examine the witnesses, and he failed to argue critical facts and the law in his closing statement. In our view, the errors alleged in this case are like those in Cone and do not support a finding of abandonment under the standard set forth in Cronic.
In his brief opening statement, defense counsel told the jury that the facts surrounding the killing were not in dispute. The prosecutor had already told the jurors that they would hear defendant’s recorded statement to the police. Defense counsel asked the jury to keep an open mind, listen to what defendant had to say during the interview, and “make a determination as to what the conduct was.” He stated he did not believe the prosecution would prove a case of first degree murder.
Defendant argues his counsel’s cross-examination was inadequate because counsel did not cross-examine most of the witnesses, counsel did not question the witnesses about facts related to defendant’s mental state, and counsel did not attempt to adduce facts supporting his theory of the case. The record reflects otherwise. Defense counsel cross-examined the majority of the witnesses, including Officer Jeffrey, Officer Hoopes, Darlene Domingo, and Dr. O’Hara. Ochoa testified she was only four feet away from defendant when she saw him stab Rosanna. She said he looked “mad.” Defense counsel did not cross-examine her at all. However, her testimony supported defendant’s theory of his case. Officer Jeffrey testified that defendant looked “very calm, cool, collected, nonchalant” when the officer arrived. Defense counsel attacked that testimony on cross-examination by getting the officer to testify that he is taught to include all significant details in his report, that a suspect’s demeanor is a significant detail, and that there was nothing in his report regarding defendant’s demeanor. On cross-examination, the crime scene investigator testified that he did not submit the blood samples on the pavement for DNA testing. On direct examination, Domingo testified that defendant appeared to be his “normal self” while she was playing cards and that he did not appear to be angry when he walked back into the house after speaking with Rosanna outside. On cross-examination, defense counsel got Domingo to admit that she was not really watching defendant when he came back into the garage apartment to get the knife because she was paying attention to the card game. During his cross-examination of Dr. O’Hara, defense counsel elicited testimony that it was rare to see this many stab wounds and that it takes a significant force to reach a depth of six or eight inches, which supported the defense theory that defendant acted in the heat of passion.
Defendant also contends defense counsel abandoned him within the meaning of Cronic in closing argument because he did not point to any facts favorable to defendant and did not focus on the defense theory of the case. However, our review of defendant’s closing argument proves otherwise. Defense counsel told the jurors he had a different perspective from that of the prosecutor, who was looking for a first degree murder conviction. He stated defendant was responsible for killing his wife and should be punished and discussed the various degrees of culpability under the law: first degree murder, second degree murder, and manslaughter. He told the jury to focus on what was going on in defendant’s mind and argued defendant was acting in the heat of passion because of the adultery. He told the jury defendant’s emotions could be used to negate the element of malice. He discussed the prosecution’s burden of proof and how the jury was to view circumstantial evidence. Defense counsel argued that the prosecution had not proven malice and that malice and premeditation were negated by defendant’s emotions and asked the jury to come back with a verdict of voluntary manslaughter.
In this case, defense counsel was present and actively participating in the trial as a whole, including arguing motions in limine, making an opening statement, participating in the presentation of evidence, and arguing to the jury. These circumstances do not reach the magnitude of those that require reversal under the standard set forth in Cronic. In light of counsel’s active participation, we cannot say he failed to subject the prosecution’s case to meaningful adversarial testing. We therefore conclude there is no merit to defendant’s first contention.
II. Ineffective Assistance of Counsel
Defendant argues that even if we conclude that his attorney did not fail to subject the prosecution’s case to true adversarial testing under Cronic, his trial counsel was prejudicially ineffective under the standard set forth in Strickland. Defendant’s ineffective assistance of counsel claim is based on the same claims of error as his abandonment claim, including alleged deficient performance in counsel’s opening statement, his failure to cross-examine witnesses, and his closing argument.
A. Applicable Legal Principles
“To prevail on a claim of ineffective assistance of counsel, a defendant must show both that counsel’s performance was deficient and that the deficient performance prejudiced the defense. [Citations.] Counsel’s performance was deficient if the representation fell below an objective standard of reasonableness under prevailing professional norms. [Citation.] Prejudice exists where there is a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different.” (People v. Benavides (2005) 35 Cal.4th 69, 92-93 (Benavides), citing Strickland, supra, 466 U.S. at pp. 687-688, 693-694.)
“ ‘Tactical errors are generally not deemed reversible; and counsel’s decision-making must be evaluated in the context of the available facts. [Citation.] To the extent the record on appeal fails to disclose why counsel acted or failed to act in the manner challenged, we will affirm the judgment “unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.” ’ ” (People v. Hart (1999) 20 Cal.4th 546, 623-624 (Hart).) Case law recognizes that “counsel’s omission legitimately may have been based in part on considerations that do not appear on the record, including confidential communications from the client.” (People v. Lucas (1995) 12 Cal.4th 415, 443.) “ ‘Finally, prejudice must be affirmatively proved; the record must demonstrate “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.” ’ ” (Hart, at p. 624.)
B. Opening Statement
Defendant contends his counsel’s opening statement was defective because counsel conceded that the facts were not in dispute, when the facts relating to defendant’s state of mind were very much in dispute. He argues that counsel’s failure to make clear from the outset that defendant challenged the prosecution’s claim that this was a premeditated and deliberate murder told the jurors they had no fact-finding function.
As noted above, in his opening statement, defense counsel told the jury that the facts were not in dispute. In her opening statement, the prosecutor told the jurors that they would hear defendant’s recorded interview with the police. Defense counsel asked the jury to keep an open mind, listen to what defendant had to say the interview, and “make a determination as to what the conduct was.” He stated he did not believe the prosecution would prove a case of first degree murder.
This argument informed the jury that the facts related to the killing were not in dispute, but that the nature of the crime, whether it was a first degree murder or some other type of homicide, was in dispute. Although defense counsel may not have been the most artful at presenting this argument to the jury, his opening statement did apprise the jury of the primary issue in the case and defendant’s contention that this was not a case of first degree murder. Defense counsel also asked the jurors to keep an open mind and to focus on defendant’s recorded statement to the police. Defendant’s statement to the police was the most critical piece of evidence in defendant’s favor and the primary piece of evidence supporting the defense theory.
Moreover, defense counsel may have had tactical reasons for telling the jury that the facts related to the killing were not in dispute. Two eyewitnesses saw defendant stab his wife. When the police arrived, defendant had blood on his hands, told Officer Jeffrey where to find the knife, and said he had killed his wife. Defendant also admitted stabbing his wife during his interview with Detective Millard. “Recognizing the importance of maintaining credibility before the jury, [our State Supreme Court has] repeatedly rejected claims that counsel was ineffective in conceding various degrees of guilt.” (People v. Freeman (1994) 8 Cal.4th 450, 498.) As the court stated in People v. Bolin (1998) 18 Cal.4th 297, 334-335, “Given the overwhelming evidence of defendant’s guilt, including the testimony of two eyewitnesses, the concession appears to be a reasonable trial tactic by which counsel could urge the jury to return verdicts on the lesser included offenses of second degree murder or voluntary manslaughter.”
For these reasons, we conclude that defense counsel’s performance related to his opening statement was not deficient.
C. Cross-Examination
As defendant acknowledges, “[t]he cross-examination of witnesses is a matter falling within the discretion of counsel, and rarely provides an adequate basis for a claim of ineffective assistance of counsel.” (People v. Frye (1998) 18 Cal.4th 894, 985.) Defendant argues that defense counsel should have elicited testimony from Domingo regarding the argument between defendant and Rosanna that preceded the stabbing. Domingo testified on direct that she heard defendant and Rosanna start arguing once they stepped outside the apartment. It was not unusual for them to argue and Domingo could not recall whether this argument was different from previous arguments she had heard between defendant and Rosanna. Domingo did not hear what defendant said to Rosanna when they were arguing. Moreover, Domingo testified twice on direct that defendant told her his reasons for stabbing Rosanna; he told Domingo he killed Rosanna because she was cheating on him and would not help him at his immigration hearing. Thus, Domingo’s testimony on direct corroborated defendant’s statement to the police regarding the reasons for the killing and supported his crime of passion defense. It was a reasonable tactical decision for defense counsel to accept Domingo’s testimony rather than question her further regarding these points on cross and risk her equivocating or changing her testimony.
Defendant argues that defense counsel’s cross-examination of Detective Millard should have emphasized those portions of the recorded interview in which defendant denied any intent to kill or premeditation. During trial, the jury heard the relevant portions of defendant’s recorded interview with Detective Millard. They also received a copy of the interview transcript. The interview itself was the best evidence of what defendant said during the interview. In addition to authenticating the recorded interview, on direct, Officer Millard testified that defendant was quiet, seemed “shocked,” and did not cry during the interview. While interviewing defendant, Officer Millard had defendant demonstrate how he hid the knife and the stabbing motion he used to kill Rosanna. The officer demonstrated what defendant had shown him for the jury on direct. Since the testimony regarding defendant’s demeanor was favorable for the most part and the interview tape was in evidence, it was a reasonable tactical decision for defense counsel not to cross-examine Officer Millard and open the door for damaging testimony on redirect. During their deliberations, the jurors asked for a compact disc player and 11 additional copies of the transcript of the interview. This supports the conclusion that they reviewed the interview during their deliberations and considered the evidence carefully. At the hearing on defendant’s new trial motion, which was based on the same grounds as this appeal, the trial judge stated he had observed defense counsel’s efforts to persuade the prosecutor that she could not get a first degree conviction without defendant’s statement. The judge stated, “It was actually impressive the way he was trying to manipulate her into getting that. … [¶] … I got the impression [defense counsel] made a lot of effort to convince [the prosecutor] she needed that statement in order to avoid having Mr. Ramirez take the stand and be subjected to cross-examination. Because I actually mentioned the difficulty he was going to have getting the manslaughter instructions without his client testifying.”
The court sustained defense counsel’s objection that portions of the interview were too prejudicial and lacked probative value (Evid. Code, § 352).
For these reasons, we conclude counsel was not ineffective with regard to his cross-examination of either Domingo or Officer Millard.
D. Closing Argument
Defendant contends his counsel’s closing argument amounted to prejudicial ineffective assistance of counsel because the argument did not sharpen or clarify the issues for resolution. He asserts the argument was confusing and incoherent and contends counsel failed to argue the facts supporting a manslaughter or second degree murder conviction.
As noted above, defense counsel told the jury he had a perspective different from that of the prosecutor, who was looking for a first degree murder conviction. He acknowledged that defendant had killed his wife and should be punished and discussed three degrees of culpability under the law: first degree murder, second degree murder, and manslaughter. He asked the jury to focus on defendant’s mental state and argued that defendant was acting in the heat of passion because of the adultery. He told the jury defendant’s emotions could be used to negate the element of malice. He discussed the prosecution’s burden of proof and how the jury was to view circumstantial evidence. Defense counsel argued that the prosecution had not proven malice and that malice and premeditation were negated by defendant’s emotions and asked the jury to return a verdict of voluntary manslaughter.
Defense counsel’s closing argument addressed the key issues in the case. Given the content of defense counsel’s closing argument, we cannot say that defense counsel failed to sharpen and clarify these issues for the jury or that his performance fell below an objective standard of reasonableness under prevailing professional norms. (Benavides, supra, 35 Cal.4th at pp. 92-93.) We therefore conclude counsel’s performance was not deficient with regard to the closing argument and that defendant’s claim of ineffective assistance of counsel fails in all respects.
Since we conclude counsel’s performance was not deficient and that counsel did not fail to subject the prosecution’s case to meaningful adversarial testing, we shall not reach defendant’s contention that the trial court erred when it denied his new trial motion, which was based on these same grounds.
Disposition
The judgment is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P.J., Duffy, J.