Opinion
NOT TO BE PUBLISHED
Superior Court County of Ventura No. 2008008888, Allan L. Steele, Judge, Bruce A. Young, Judge
Linda C. Rush, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan Sullivan Pithey, Supervising Deputy Attorney General, Mary Sanchez, Deputy Attorney General, for Plaintiff and Respondent.
COFFEE, J.
Appellant Juan Manuel Alvarez was convicted by jury of forcible oral copulation (count 1, Pen. Code, § 288a, subd. (c)(2)), dissuading a witness (count 3, § 136.1, subd. (c)(1)), false imprisonment (count 4, § 236) and disobeying a domestic relations court order (count 5, § 273.6, subd. (e)). He was initially charged with corporal injury to a child's parent (count 2, § 273.5, subd. (a)), but the jury found him guilty of the lesser included offense of battery of a child's parent (§ 243, subd. (e)(1)). The jury found true the special allegation that appellant caused injury while violating the domestic relations order. It also found true the special allegation that appellant caused injury while violating the domestic relations order prior to the current offense.
All further statutory references are to the Penal Code.
Appellant moved for a new trial, which the court denied. It imposed the upper term of eight years on count 1 (oral copulation) and ordered the remaining counts to run concurrently to count 1. It did not specify those counts or the length of the term imposed. The People indicate that the abstract of judgment does not reflect that appellant was ordered to provide DNA samples pursuant to section 296 and requests that we order the abstract be modified to include DNA testing.
Appellant claims the trial court erred in denying his motion for a new trial, committed instructional error and counts 3-5 should be stayed pursuant to section 654. We affirm with direction to modify the abstract of judgment.
FACTS
Appellant and S.L. dated since age 17 and were together for approximately six years. They have two children. Appellant's mother, Elisa Fernandez, lives in an apartment above a garage. She allowed a man by the name of Sixto to live in the garage. Fernandez testified that, on November 30, 2007, she was awakened when Sixto knocked on her bedroom door and told her that appellant and S.L. were arguing. Fernandez called 911. While she was on the phone, she walked down an exterior stairway to the garage. She opened the garage door and saw that S.L. and appellant were not wearing any pants. S.L. began crying. Fernandez picked up a belt for self-defense.
As she approached the garage, Fernandez told the 911 operator that she believed her son was holding S.L. against her will and that he might be on crystal methamphetamine. Overlapping voices and screaming and crying could be heard in the background. Fernandez said, "you don't hit women, you dumb ass" and "you can't take a girl by force." She also said, "... I have to save the girl...." During the call, appellant ran from the garage. A recording of the 911 call was played for the jury and they were provided with a transcript. At trial, Fernandez was vague about the details of the offense, despite the fact that she was present when the recording of the 911 call was played to the jury.
The parties stipulated that Fernandez's statements concerning appellant's drug use and that he was under the influence of crystal methamphetamine were not offered for the truth, and could not be considered by the jury for the truth. They were offered merely to provide a complete recording of the 911 call. The stipulation also provided that Fernandez's statements that "you can't force a girl," "you don't hit women," and "you can't take a woman by force" could likewise not be considered by the jury for the truth.
Testimony of Officer Escalante
On the day of the offense, Officer Erica Escalante of the Oxnard Police Department responded to a call about a disturbance in a garage. She made contact with S.L., who was upset and close to tears. There was an abrasion on her thumb.
S.L. told Escalante that appellant had been knocking on her door at various times throughout the night. At approximately 4:00 a.m., S.L.'s father told him to leave. When she left for work that morning, appellant was waiting for her and asked for a ride. She refused, but appellant opened the door and got in the passenger side of her car. S.L. thought he was under the influence of drugs, which made him violent and aggressive with her. She was trying to be nice to him so he would not hit her or damage her car. She agreed to give him a ride, and he began accusing her of having sex with his friends and cousins. Appellant asked S.L. to take him to his mother's apartment, which she did.
When they arrived at the garage (underneath the apartment), appellant told S.L. to get out of the car. She did not want to, and threatened to call the police. She reached for her cell phone in the center console. He grabbed it and there was a struggle. S.L. received an abrasion to her thumb from a rough plastic area on the center console. Appellant took her car key out of the ignition and told her that if she came into the garage he would give her things back. He opened the garage door with one hand. With the other hand, he pulled her by her sleeve into the garage. There was a man in the garage and appellant told him to leave. S.L. asked him to stay. The man left and appellant pushed S.L. towards the back of the garage where there was a bed. S.L. asked appellant to return her belongings so she could go to work. He returned her cell phone and keys when she promised not to call the police.
Appellant removed S.L.'s jacket, shirt and bra. She did not actively resist because she was afraid of being hurt. Hoping to delay him, S.L. told appellant she did not want to have sex if he did not have a condom. He pulled down her pants and his own and lay on the bed. He asked her to give him oral sex. She began, then stopped and told him she could not do it. Appellant told her he would just masturbate. He pushed her to the bed and held her hands away from her body. She was on her stomach, and tried to stay curled in a ball to prevent him from having sex with her. S.L. felt his penis on her buttock and was afraid he was going to force her to have sexual intercourse. Appellant's mother then walked into the garage and picked up a belt. She began arguing with appellant, who put on his clothes and fled.
Stipulations and Unreported Incident
The parties stipulated that appellant had a prior conviction for domestic battery, committed in August 2006. (§ 243, subd. (e)(3).) A no-contact order was issued for S.L.'s protection. Appellant was prevented from contacting S.L., unless it was for the purpose of visitation with the children. He was later twice convicted of violating the restraining order prior to his commission of the instant offense.
The parties further stipulated that appellant violated the restraining order on five more occasions (once in 2006 and four times in 2007) and that the incidents occurred as described in the police reports. His conduct included harassing S.L. in her home by knocking on her door throughout the night, threatening her, trying to enter her home, following her to her workplace, and chasing her car with his. He was arrested once.
During interviews following the instant offense, S.L. told Officer Escalante about an unreported incident that occurred in October 2007. S.L. was standing outside appellant's garage and he requested sex. She refused, and appellant pulled down her leggings and tried to get her into the garage. She was able to escape in her car. As she was driving away, appellant struck her car window.
Testimony of S.L.
S.L.'s trial testimony was vague as to the prior incidents of domestic violence as well as the instant offense. She either denied that the incidents had occurred, or testified that she did not remember. She denied her statements made to police, contained in the police reports. S.L. repeatedly contradicted herself, giving different answers to the same question, rendering large portions of her testimony almost nonsensical. S.L. testified that she did not want appellant prosecuted because he is a "good guy" and she wants him to be with her children. She did not consider his conduct to be a violation of the restraining order because she and appellant were still seeing each other.
Appellant's Testimony
Appellant testified that, on the morning of the offense, he was planning to leave for Mexico. He was tired of being in and out of jail because of S.L. and figured it would be good to stay away for a couple of years. He wanted to have sex with her one last time, for the memory.
New Trial Motion
Appellant was arrested two weeks after he committed the offense, and was interviewed at the police station by Detective Robin Whitney. An audio recording of the interview was played for the jury and they were provided with a transcript.
The following exchange occurred:
"[Whitney]: I work cases of um, domestic violence, okay. So what I'll do is I'll read you your rights and then, uh, if you want to talk to me about the case, uh we can do that, okay. You've been arrested before, right? Yes or no?
[Appellant]: Yeah.
[Whitney]: Okay. So you've had your rights read to you before?
[Appellant]: Yeah.
[Whitney]: Okay. Alright. [Miranda rights read]. Do you understand each of these rights I've explained to you?
[Appellant]: Yeah.
[Whitney]: Okay. Having these rights in mind, do you wish to talk to me now?
[Appellant]: No.
[Whitney]: Huh?
[Appellant]: Uh
[Whitney]: Either yes or no?
[Appellant]: Uh, about what, or what?
[Whitney]: Um, about what your um, ex-girlfriend uh, reported – about an incident that happened uh, about two weeks ago?
[Appellant]: Now what?
[Whitney]: Huh?
[Appellant]: Now what does she say?
[Whitney]: Well, before I can talk to you I need to know whether you want to talk to me.
[Appellant]: Well, yeah. I want to know what the fuck's going on 'cause my friend's been telling me that he's been seeing pictures of me everywhere."
Detective Whitney then told appellant what S.L. had reported. Appellant admitted that they had struggled in the car, and he took her cell phone and car keys. She was crying because she thought appellant was going to hit or kill her. She was always scared of him. He wanted to have sexual intercourse, but she refused because he did not have a condom. She tried to leave, but he grabbed her. He told her he would just masturbate. Appellant lay down on a mattress and S.L. began to give him oral sex, but his mother came in and interrupted them.
After the jury verdicts were rendered, conflict defense counsel was substituted in for defense counsel. Counsel moved for a new trial on the grounds that appellant's trial counsel was ineffective for failing to move to exclude appellant's statement to Detective Whitney, in violation of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). The new trial motion was denied.
DISCUSSION
Miranda Waiver and Ineffective Assistance of Counsel
Appellant argues that the denial of his new trial motion was prejudicial error. In support of the motion, conflict defense counsel submitted the declarations of trial counsel (Gary Wayne), who stated that he had recognized a potential Miranda issue. He made a note in his file to move in limine to exclude the statement, but forgot to make the motion. At trial, when the prosecutor began playing a recording of the police interview, Wayne realized he had not raised the Miranda issue in a pretrial motion. After the recording was played to the jury, he realized he should have objected at the time it was introduced.
At the hearing on the new trial motion, the trial court ruled that Wayne should have moved to exclude appellant's statement. It then took evidence to determine whether, had such a motion been made, it would have been granted. Conflict defense counsel played a portion of the recorded interview for the court, and a copy of the transcript was admitted into evidence. Appellant argues that he had twice invoked his Miranda rights. The first disputed exchange is as follows: "[Whitney]: Okay. Having these rights in mind, do you wish to talk to me now? [¶] [Appellant]: No. [¶] [Whitney]: Huh? [¶] [Appellant]: Uh –" Conflict defense counsel argued that appellant's response, "Uh –" was incorrectly transcribed and should have read, "No." The other disputed exchange is as follows: "[Whitney]: Well, before I can talk to you I need to know whether you want to talk to me. [¶] [Appellant]: Well, yeah. I want to know what the fuck's going on 'cause my friend's been telling me that he's been seeing pictures of me everywhere." Appellant asserts that his statement, "Well, yeah," indicated he was asking for more details about what S.L. had told police, and was not a waiver of his Miranda rights.
In reviewing the denial of a nonstatutory new trial motion, we must exercise our independent review where the defendant's constitutional rights are implicated. (People v. Nesler (1997) 16 Cal.4th 561, 582, fn. 5 [alleged juror misconduct]; People v. Albarran (2007) 149 Cal.App.4th 214, 224-225 & fn. 7 [admission of gang evidence].) Denial of a new trial motion based on the ineffective assistance of counsel is a constitutional issue requiring our independent review. (People v. Taylor (1984) 162 Cal.App.3d 720, 724-725 [counsel's failure to challenge in-field identification procedures].)
At the hearing, Detective Whitney testified that he was trying to clarify appellant's responses to make sure there was no issue with the Miranda advisements. He said that appellant's voice was difficult to hear. It was softer than his own because the recording device was in Whitney's breast pocket, and appellant sometimes looked down while answering. Whitney testified that, if he had understood appellant to say, "No," he would have stopped the interview.
The trial court stated that it had listened twice to the tape and could not discern appellant's response relative to the first exchange. It determined, however, from reading the transcript and listening to the recording, that Detective Whitney did not hear appellant's answer and was requesting clarification. The court concluded that a Miranda motion would have been denied "by a reasonable court," thus appellant was not prejudiced by counsel's failure to make it. Appellant's new trial motion was denied.
The trial court was placed in the difficult position of ruling on a motion to exclude appellant's statement, although such a motion had not been made. However, it was necessary for the court to consider the viability of the claim to determine whether appellant was prejudiced by the introduction of the evidence. Given the incriminating nature of appellant's statement, we agree with the trial court that Wayne should have filed a motion in limine to exclude it. We next review the trial court's finding that appellant voluntarily waived his Miranda rights.
When reviewing a claim that a statement was obtained in violation of Miranda, "we accept the trial court's resolution of disputed facts and inferences, and its evaluation of credibility, if supported by substantial evidence." (People v. Kelly (1990) 51 Cal.3d 931, 947.) We independently determine whether the statements were illegally obtained, but give great weight to the conclusion of the trial court. (People v. Jennings (1988) 46 Cal.3d 963, 979.) Waiver must be voluntary, and not the result of intimidation, coercion, or deception. (People v. Smith (2007) 40 Cal.4th 483, 501.)
A reading of the transcript reflects that Detective Whitney began by telling appellant that he was going to read him his rights. He asked whether appellant had been read his rights following other arrests, and appellant confirmed that he had. Whitney asked whether appellant wished to talk to him, and appellant clearly answered, "No." Whitney appears not to have heard because he responded, "Huh?" and asked appellant again, "[e]ither yes or no?" Appellant answered, "Uh about what, or what?" Appellant then asked what S.L. had reported to police. Whitney again stated that he could not talk to appellant unless appellant wished to talk to him.
It is undisputed that Detective Whitney read appellant his rights, and confirmed that he understood them. Before beginning any questioning, Whitney inquired three times whether appellant wished to talk to him. "'Once the defendant has been informed of his [Miranda] rights, and indicates that he understands those rights, it would seem that his choosing to speak and not requesting a lawyer is sufficient evidence that he knows of his rights and chooses not to exercise them.'" (People v. Whitson (1998) 17 Cal.4th 229, 248, quoting People v. Johnson (1969) 70 Cal.2d 541, 558, disapproved on another point in People v. DeVaughn (1977) 18 Cal.3d 889, 899, fn. 8.) The trial court articulated the relevant facts as established by the transcript, the tape and Whitney's testimony. It heard argument from counsel. The court identified the disputed facts, and made its own findings and observations. We conclude, as did the trial court, that appellant was fully informed of his rights and his waiver was voluntary.
Appellant next claims that Wayne's failure to exclude his statement constituted the ineffective assistance of counsel. He reasons that, if defense counsel had objected, and his statement was excluded, there would have been no evidence to support his conviction. We observe that appellant's failure to object has waived this argument on appeal. (People v. Farnam (2002) 28 Cal.4th 107, 153.)
Waiver aside, to establish an ineffective assistance of counsel claim, the defendant bears the burden of demonstrating that counsel's performance fell below an objective standard of reasonableness under prevailing professional norms and that the deficiencies resulted in prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 688; People v. Ledesma (2006) 39 Cal.4th 641, 745-746.) Wayne's performance did not fall below the prevailing professional norms. Appellant's waiver was voluntary, thus his statements were properly admitted. Trial counsel's failure to make a futile or unmeritorious motion or request does not constitute ineffective assistance. (People v. Memro (1995) 11 Cal.4th 786, 834.)
Moreover, appellant was not prejudiced. There was substantial evidence of his guilt, even had his statement been excluded. Appellant's mother, Fernandez, walked into the garage and saw appellant and S.L. partially nude. Her reaction to the events she witnessed was caught on the recording of the 911 call. She also testified at trial. Officer Escalante, who arrived shortly after the offense was committed, testified in detail to the events than transpired in the garage. The trial court did not err in denying appellant's motion for a new trial.
On appeal, the parties invite us to listen to the recording of the interview. Appellant contends that he made certain statements that should have been transcribed as questions rather than declarative sentences. The parties request that we listen to the recording to hear appellant's inflection, to determine for ourselves whether they were interrogatory in nature or factual assertions. This is a request to reweigh the evidence, which we may not do. (People v. Young (2005) 34 Cal.4th 1149, 1181.) It is the exclusive province of the trier of fact to determine the credibility of a witness and the truth or falsity of the facts upon which that determination depends. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
Credibility of S.L.
Appellant contends that S.L. was not a credible witness because she made inconsistent statements regarding prior instances of domestic violence as well as the circumstances surrounding the instant offense. We observe that, at the close of trial, the parties stipulated to the content of the police reports concerning appellant's violation of the no contact order. In light of these stipulations, any argument concerning S.L.'s inconsistency as to the prior violations is irrelevant to this appeal.
Appellant argues that his conviction rests primarily on S.L.'s testimony and his own. He contends that, absent this evidence, Fernandez's testimony, the recording of the 911 call and his statement to Whitney are insufficient to support his convictions. We disagree. Not only was this evidence highly probative of appellant's guilt, the jury also heard the comprehensive testimony of Officer Escalante. The record contained substantial evidence of appellant's guilt.
Instructional Error
Appellant was convicted of battery (§ 243, subd. (e)(1)), the lesser included offense of corporal injury to a child's parent (§ 273.5, subd. (a)). Appellant claims that his battery conviction must be reversed because the trial court failed to give a sua sponte instruction on the defense of accident.
S.L. received an abrasion to her thumb while she and appellant were in her car, struggling over her cell phone. Officer Escalante testified that the abrasion was caused by a rough plastic area on the center console. On appeal, appellant asserts that the abrasion occurred while he was reaching for the cell phone, not S.L.'s hand. Thus, the abrasion was caused accidentally. During closing argument, defense counsel contended that the injury happened accidentally when S.L. reached into the center console.
The trial court instructed the jury with CALCRIM No. 840, corporal injury to a child's parent. It also instructed the jury with CALCRIM No. 841, the lesser included offense of simple battery. Appellant claims that the jury should also have been instructed with CALCRIM No. 3404, which provides that a person is not guilty of an offense if he acted or failed to act "without the intent required for the crime, but acted instead accidentally." Appellant argues that he lacked the requisite intent for battery. He claims that there was substantial evidence to support the defense of accident, and defense counsel relied on this theory during closing argument, thus the trial court erred by failing to give this instruction sua sponte.
CALCRIM No. 841 states in pertinent part, "... To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant willfully touched [S.L] in a harmful or offensive manner; [¶] AND [¶] 2. [S.L.] is the mother of [appellant's] child. [¶] Someone commits an act willfully when he does it willingly or on purpose.... [¶] The slightest touching can be enough to commit a battery if it is done in a rude or angry way. Making contact with another person, including through his or her clothing, is enough. The touching does not have to cause pain or injury of any kind. [¶] The touching can be done indirectly by causing an object to touch the other person."
Trial courts "must instruct sua sponte on general principles of law that are closely and openly connected with the facts presented at trial." (People v. Ervin (2000) 22 Cal.4th 48, 90.) There is no obligation to instruct a jury on a defense if the evidence supporting the defense is minimal or insubstantial. (People v. Barnett (1998) 17 Cal.4th 1044, 1145.) Evidence is substantial when, if believed by the trier of fact, it would be sufficient to raise a reasonable doubt about the defendant's guilt. (People v. Salas (2006) 37 Cal.4th 967, 982.)
Appellant fails to identify any evidence which would have compelled the court to instruct the jury on the defense of accident. The evidence established that S.L. reached for her cell phone to call the police. Appellant tried to grab the phone to prevent her from making the call, and they struggled over it, before appellant took possession. There are no facts to suggest the touching was accidental. The prosecutor's reference to this defense during closing argument is not sufficient to impose upon the court a sua sponte duty to instruct with CALCRIM No. 3404.
Sentencing Error
At sentencing, the trial court stated, "I'm going to impose the upper term on Count 1 [forcible oral copulation, § 288a, subd. (c)(2)] and run everything else concurrent." Regrettably, neither in its oral pronouncement nor in the minutes, did the court did specify the remaining four counts or indicate which of the three terms it wished to impose for each count.
The abstract of judgment reflects imposition of the midterm of three years on count 3 (dissuading a witness, § 136.1, subd. (c)(1)), the midterm of two years on count 4 (false imprisonment, § 236) and the midterm of two years on count 5 (disobeying domestic relations order, § 273.6, subd. (e)). No reference was made to appellant's conviction for count 2 (battery of a child's parent, § 243, subd. (e)(1)). We observe there is no consequence to the trial court's omission, because the upper term on any of the remaining counts does not exceed the eight-year term imposed on count 1. However, the incomplete record precludes us from addressing appellant's section 654 argument.
DISPOSITION
We direct the trial court to modify the judgment to reflect the imposition of concurrent sentences on counts 2 through 5 and to add a requirement that appellant submit to DNA testing (§ 296, subd. (a)(1)). A copy of the amended abstract of judgment shall be forwarded to the Department of Corrections and Rehabilitation. The judgment is otherwise affirmed.
We concur: YEGAN, Acting P.J., PERREN, J.