Opinion
H045685
03-11-2020
THE PEOPLE, Plaintiff and Respondent, v. RAYMUNDO CARMEN CAMARILLO, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. F1452004)
Defendant Raymundo Carmen Camarillo was convicted following a jury trial of four counts of committing lewd or lascivious acts on a child under the age of 14 (Pen. Code, § 288, subd. (a)), one count of committing a lewd or lascivious act on a child with force, violence, duress, menace, or fear (§ 288, subd. (b)(1)), two counts of committing lewd or lascivious acts on a child aged 14 or 15 (§ 288, subd. (c)(1)), and three counts of misdemeanor annoying or molesting a child (§ 647.6, subd. (a)(1)). The jury also found true five allegations that the offenses were committed against more than one victim (§ 667.61, subds. (b) & (e)). The trial court sentenced Camarillo to a total term of 75 years to life consecutive to two years and eight months in prison.
Unspecified statutory references are to the Penal Code.
On appeal, Camarillo argues that (1) the trial court erroneously admitted evidence of his decision to consult with an attorney before his arrest and his prearrest silence in violation of state law and his right to due process, (2) the trial court erroneously permitted the prosecutor to ask him if he believed the victims were lying and conspiring against him, (3) the trial court erroneously permitted the prosecutor to ask his character witnesses guilt-assuming hypotheticals in violation of state law and his right to due process, (4) the prosecutor committed misconduct when questioning witnesses and during argument, (5) the trial court constructively denied him either his right to effective counsel or his right to counsel of his choice during his sentencing hearing, and (6) this court should independently review one of the victim's school records to determine whether any records should have been disclosed to the defense. Camarillo also raises claims of ineffective assistance of counsel to the extent any of his arguments are forfeited by his trial counsel's failure to object below and insists that the cumulative impact of the multiple errors in his case warrants reversal of his convictions. As we explain, we find no merit in his arguments and affirm the judgment.
Camarillo's appellate counsel also filed a petition for writ of habeas corpus, which we ordered considered with his appeal. By separate order, we issue an order to show cause returnable to the superior court on his habeas corpus petition.
I. BACKGROUND
1. The Information
On February 26, 2015, an information was filed charging Camarillo with five counts of committing lewd and lascivious acts on a child under the age of 14 (§ 288, subd. (a); counts 1, 3, 4, 5, 6); one count of committing a lewd or lascivious act on a child by force, violence, duress, menace, or fear (§ 288, subd. (b)(1); count 2); two counts of committing lewd or lascivious acts on a child aged 14 or 15 (§ 288, subd. (c)(1); counts 7, 8); and three counts of misdemeanor annoying or molesting a child (§ 647.6, subd. (a)(1); counts 9, 10, 11). As to counts 1 through 6, it was alleged that the offenses were committed against more than one victim (§ 667.61, subds. (b) & (e)).
2. The Trial
a. Camarillo's Family
Camarillo lived in Morgan Hill with his wife (hereafter wife), and his three sons (hereafter son1, son2, son3). Camarillo owned his own business that he opened in February 2013.
The victims are cousins, hereafter referred to as victim1, victim2, and victim3. Victim1 and victim2 are sisters, and their father, A1, is wife's cousin. Victim3's mother, E1, is A1's cousin's wife. Victim3's father, E2, is wife's brother. Camarillo and wife are victim3's godparents.
b. The Allegations Are Made
In the summer of 2014, victim1 went to her aunt J.'s house in Sacramento. At the time, victim1 had been misbehaving. J. asked victim1 about her behavior, and victim1 responded that she was going through "normal teen stuff." J. told victim1 that she had been molested when she was around victim1's age. Victim1 subsequently revealed to J. that Camarillo had molested her. Later, J. asked victim2 if Camarillo had ever molested her, and victim2 confided in J. that Camarillo had inappropriately touched her in the past.
Afterwards, J. called victim1 and victim2's mother, E3, and told her that victim1 and victim2 were accusing Camarillo of touching them inappropriately. E3 told A1, victim1 and victim2's father, that their daughters were making accusations against Camarillo. E3 and A1 filed a police report. E3 and A1 then spoke with E2 and E1, victim3's parents and told them about the allegations. E2 asked victim3 about her experiences with Camarillo. Victim3 initially said that Camarillo had never been inappropriate with her. After a while, victim3 started to cry and admitted that Camarillo had molested her.
Shortly afterwards, wife learned that victim1, victim2, and victim3 were accusing Camarillo of touching them inappropriately. E2 recalled that Camarillo left him a voicemail either on Wednesday, July 2, or Thursday, July 3, 2014, the same week that Camarillo learned about the allegations. E2 spoke to the police on July 3, 2014 and turned over a recording of the voicemail that same day. In the voicemail, Camarillo is heard crying and saying, "Whatever it was (inaudible) I'm so sorry man I didn't want to hurt no one."
c. Animosity Between Victim3 and Camarillo's Family
Victim3 and her parents had not spoken to Camarillo and his family for more than a year by the time she made her allegations against him. Camarillo had prohibited victim3 from going to his business because he thought that she was showing son1 "naked pictures of girls." Victim3 testified that her dispute with Camarillo arose after she helped son1 create a Facebook page against his parents' wishes. When Camarillo discovered son1's Facebook page, he became upset. E2 called Camarillo, and they fought. Victim3, however, remained in touch with Camarillo's sons and saw them at school. Victim3 accused Camarillo of touching her inappropriately after she found out about what had happened to victim1 and victim2, and she admitted that she was angry with him at the time.
d. Specific Allegations by Victim1
i. The Incidents at the Campground and at Camarillo's House (Counts 1, 2, & 9)
Victim1 was born in 1999. In the summer of 2011, when she was 11 years old, she went on a camping trip in Gilroy, California, with her parents, A1 and E3, and her sisters, victim2 and M. Camarillo, Camarillo's sons, Camarillo's nephew (D.), and wife also attended the trip.
Sometime during the trip, victim1 found herself alone by the lake. She was close enough to the campground to see the rest of her family. While standing near the water, victim1 suddenly realized that Camarillo had walked up next to her. Camarillo, who was wearing shorts and a shirt, groped his penis over his clothing and asked victim1, "What do you want to see?" Feeling uncomfortable, victim1 did not reply and walked away. Afterwards, victim1 tried to avoid Camarillo during the remainder of the trip.
During the evening that same day, several family members, including A1, victim2, son1, son2, D., and Camarillo, decided to go on a hike together. It was dark, and they did not have flashlights, so everybody stayed close together. Around 10 minutes into the hike, victim1 started to lag behind the group. A1 was leading the way, and Camarillo was toward the back making sure nobody was left behind. Camarillo, who was the only person behind victim1, suddenly wrapped his arms around her torso and rubbed her stomach in a downward circular motion. Camarillo's hand went below victim1's belt area but did not go under her pants and did not reach the top of her vaginal area. Victim1 felt scared and uncomfortable. Camarillo asked victim1 if she was scared, and she answered yes. Camarillo responded that he would not let anything happen to her. He kept his hand between victim1's belt area and her vaginal area for several minutes. At some point, Camarillo let go of victim1, and victim1 walked to the front of the group close to her father.
Afterwards, victim1 went to sleep in a tent with her immediate family. Camarillo slept in another tent. Victim1 did not tell anybody about what happened that day because she did not want to ruin the camping trip. She was close with her cousins, and she did not want to be separated from them. She thought that if she told anyone about what Camarillo did, he would get in trouble.
The next day, the entire group left the campground and drove to Camarillo's house in Morgan Hill. Victim1's family drove separately from Camarillo's family. After arriving at Camarillo's house, victim1 helped her family unpack the car. As victim1 walked inside the house, Camarillo stopped her as she was about to step into the living room to go out to the kitchen. Camarillo pushed victim1 against the wall and rubbed his body against hers. Victim1's face was at Camarillo's chest, and Camarillo placed her arms to the side and pinned them. Camarillo grinded his hips against victim1's vaginal area for several minutes. Victim1 asked Camarillo if she could go play, and Camarillo did not reply. Victim1 heard Camarillo's sons run into the house, and Camarillo stopped what he was doing.
On cross-examination, victim1 conceded that the incident could have been shorter and may have lasted for a minute or less.
Afterwards, victim1 felt scared and uncomfortable. She did not tell anyone about what happened because she was shocked and embarrassed. She felt that she had done something wrong.
ii. The Incident at Camarillo's House (Count 3)
When victim1 was 14 years old, she went with her family to Camarillo's house. Camarillo's sons were in the living room playing a video game. Victim1 was sitting next to son1 and son2, and victim2 was sitting on another couch in the same room. At some point, Camarillo walked into the living room. Victim1 was playing with her iPod at the time. Camarillo came from behind the couch, leaned over, moved victim1's shirt from her shoulder, and put his mouth on her shoulder, kissing it. Victim1 felt him rub his beard on her skin. This went on for two minutes. Camarillo's sons, who were nearby, did not notice what was going on. Victim1 did not say anything during the incident and removed herself from Camarillo by walking over to sit with her sister.
Victim1 first said that she was sitting on the floor, then said that she was sitting on the couch.
When she reported this incident to the police, victim1 did not mention that Camarillo kissed her shoulder; she said that he rubbed his mustache on her shoulder.
Afterwards, victim1 felt uncomfortable. She did not believe that Camarillo's behavior was appropriate. She kept silent about this incident because she did not want to come between the two families.
Between the camping trip and the incident at Camarillo's house, there was another incident where, while driving her home after a class, Camarillo grabbed victim1's leg, moved it up, and asked if it hurt.
e. Specific Allegation by Victim2 (Count 4)
Victim2 was born in 2001. When she turned 11, she had a birthday party at the common area of the apartment complex where she lived. Camarillo, wife, and Camarillo's sons attended the party. During the party, victim2's stomach started to hurt, so she stopped playing. She started to go up the stairs to get back to her apartment. Camarillo stopped her and asked her what was wrong. Victim2 replied that her stomach was hurting, and Camarillo placed his hand on her stomach, rubbed it, and asked victim2 if she was okay. As he rubbed her stomach, Camarillo's hand moved in a circular motion toward her vaginal area. The touching lasted approximately 20 seconds.
Victim2 did not tell anybody about what happened. She did not tell victim1 or victim3 about the incident. Afterwards, she did not feel comfortable being alone with Camarillo.
f. Specific Allegations by Victim3
i. The Incident in the Living Room (Count 5)
Victim3 was born in 1998. She frequently visited Camarillo's house and would sometimes spend the night to play with her cousins, Camarillo's sons. When victim3 stayed over, she would sleep in the living room. During one visit when she was 13 years old, victim3 woke up in the middle of the night in the living room after she felt Camarillo's weight on top of her. She had been asleep on the floor on her stomach. Victim3 felt Camarillo's erect penis between her buttocks. Both she and Camarillo were fully clothed. Camarillo humped her for a few seconds, got up, and asked victim3 if she liked that. He then laughed and walked away. Victim3 did not say anything during the incident.
Afterwards, victim3 did not tell anybody about what happened. She was confused and was afraid of what might happen if she said anything. She was also close with her cousins, Camarillo's sons.
ii. The Incident in the Entertainment Room (Count 7)
Around the same time as the incident in the living room, when victim3 was still 13, another incident took place in Camarillo's entertainment room. Camarillo's sons were playing a video game, and victim3 was sitting in a recliner watching them. Wife was not home at the time. Camarillo told his sons to leave the room. Victim3 thought that he was also telling her to leave, so she started to get up. Camarillo told her to stop. At that point, Camarillo, who was behind victim3, grabbed her hand and pulled it back onto his exposed penis. As soon as victim3 felt his penis, she jerked her hand back. The entire incident lasted a couple of seconds. Afterwards, victim3 walked away toward her cousins. Camarillo did not say anything to victim3.
Victim3 did not tell anybody about what happened. She was embarrassed and wanted to continue her relationship with her cousins.
iii. Second Incident in the Entertainment Room (Count 8)
When victim3 was around 14 years old, she stayed the night at Camarillo's house. Wife was not home that evening. Victim3 was sitting in the entertainment room with her cousins, who were playing video games, when Camarillo walked into the room. Victim3 stood up when Camarillo entered the room. Camarillo, who was behind victim3, reached over and put his hand over her vaginal area. Camarillo then rubbed the area for a couple of seconds. Victim3 moved his hand and walked away. Camarillo's sons were still playing video games and did not notice what had happened.
iv. Incident in the Shower (Count 10)
When victim3 was still 14 years old, she visited Camarillo's house and took a shower there. Camarillo had just finished taking a shower himself and had left the bathroom. While showering, victim3 heard someone come into the bathroom, and she peeked out of the shower curtains to see who it was. Victim3 saw that it was Camarillo, wearing only a towel. Camarillo looked at victim3 and dropped the towel. Camarillo was naked, and victim3 could see his penis. Camarillo said he was sorry, but victim3 believed that he intentionally dropped the towel. Victim3 pulled her head back from the shower curtain and continued to take a shower. Camarillo left, and victim3 finished her shower without further incident.
v. Incident in the Car (Count 6 and Count 11)
When victim3 was in seventh or eighth grade, she needed a ride from school and called wife. Wife told victim3 that Camarillo had their car, and she should call him to pick her up. Victim3 called Camarillo, and he agreed to give her a ride. Instead of driving victim3 directly home, Camarillo took her on a more circuitous route on the backroads. While driving, Camarillo reached over and tried to pull down victim3's shirt. Victim3 moved his hand away. Camarillo did not say anything; he just laughed and kept driving.
g. The Victims Did Not Discuss Allegations With Each Other Prior to Reporting the Incidents
Victim1, victim2, and victim3 all testified that they did not speak to each other about Camarillo's actions until after the allegations came to light. Victim1 said that she never told victim2 or victim3 about her experiences with Camarillo, but victim3 later told her that "the same thing was happening to her."
After the trial started, victim3 posted a picture online of her, victim1, and victim2 posing in front of the courthouse after a hearing with the caption, "When we go down, we go down together."
h. Expert Testimony on Child Sexual Abuse Accommodation Syndrome
Dr. Blake Carmichael, a psychologist, testified as an expert in Child Sexual Abuse Accommodation Syndrome. Dr. Carmichael explained that there are five components to the syndrome: secrecy, helplessness, entrapment or accommodation, delayed and unconvincing disclosure, and recanting or retraction of allegations.
The first component, secrecy, is where the perpetrator keeps the abuse a secret. Since many perpetrators have a relationship with the child they abuse, secrecy can be obtained without the perpetrator affirmatively taking steps like making threats. A child may have positive feelings about the perpetrator, making it difficult to come forward and cause the perpetrator trouble. A child may also feel ashamed and feel that he or she will not be believed by others. Oftentimes, the closer the relationship between a child and the perpetrator, the longer the abuse is kept a secret and the harder it is for a child to tell the truth.
The second component, helplessness, comes from the power dynamic between the perpetrator and a child. The perpetrator is bigger, stronger, and more sophisticated than a child. A child's helplessness increases when they think others will not believe the abuse is happening, and when the perpetrator is an adult who is supposed to provide guidance, protection, and nurturance to a child.
The third component, entrapment or accommodation, occurs when a child is experiencing the abuse in secret and feels helpless. A child may end up trying to stop the abuse by doing things like wearing an extra set of pajamas. A child may also emotionally dissociate. When a child emotionally disassociates from the abuse, he or she may not correctly recall every detail of the abuse.
The fourth component, delayed or unconvincing disclosure, is not uncommon in cases of child sexual abuse. Only about 20 percent of abused children promptly report the abuse, and 80 percent of children delay their disclosure. A child's disclosure may not be convincing because children often do not recount the abuse the same way every time and may not disclose all the details the first time. A child may also confuse the sequence of events.
i. Defense Evidence Regarding the Allegations
i. Wife's Testimony
Wife testified about the camping trip where Camarillo purportedly touched victim1. Wife claimed that she did not see any of the children playing by themselves down by the lake. She said that the children were always in view, and it would have been obvious if one of the children went off by him or herself while the rest played together. She also did not see Camarillo go down toward the lake by himself.
Wife said that some of the family members went on a hike during the camping trip. She saw the children return from the hike first, with A1 and Camarillo following behind. After the hike, all the children made s'mores and played together before going to bed.
Wife did not recall seeing victim1 alone in the Morgan Hill house after the camping trip. Wife described the game room as being visible from multiple vantage points. She did not remember anything unusual or out of the ordinary happening that day.
Wife did not recall any changes in the way that victim1 and Camarillo greeted each other or spent time with each other after the camping trip. Wife testified that when victim1's family came over, the adults would spend time with the adults and the children would spend time with the children.
Wife remembered that Camarillo called E2 sometime between July 2, and July 3, 2014, and left him a voicemail. In the voicemail, Camarillo said he was sorry, he did not mean to hurt anybody, and "[h]e would never do anything like this." Wife testified that she believed that victim3 was upset when she was banned from coming to Camarillo's business, and Camarillo was trying to convey his regrets to E2 with the voicemail. According to wife, victim3 sent son1 a Facebook message expressing how she felt hurt about what had happened between the two families.
ii. Son1's Testimony
Son1 testified and recounted that during the camping trip, he went swimming with the other children. He did not recall seeing any of the other children go back to the lake after they finished their swim.
After dinner, son1 went on a hike with Camarillo, D., victim1, victim2, and A1. He remembered that he and Camarillo both carried flashlights, and the group went hiking side by side. He stood next to D., victim1 stood next to victim2, and A1 and Camarillo stood next to each other. Camarillo stayed toward the front of the group during most of the hike and tried to scare the children a few times by hiding in the bushes. On the way back to the campsite, A1 and Camarillo stayed toward the back of the group. Son1 remembered that victim1 and victim2 arrived back at the campsite together.
Son1 testified that victim3 stopped coming around his house after inappropriate images were discovered on wife's phone. Initially, son1 told his parents that victim3 was not responsible for the pornography. Son1 later admitted that he looked up the pictures on the phone after he had a conversation with victim3. Contradicting his mother's testimony, son1 testified that he did not recall victim3 sending him Facebook messages that expressed how she missed visiting his family after she was banned from going to Camarillo's business.
iii. D.'s Testimony
D., who also attended the camping trip, testified about what he remembered. D. testified that he thought victim1 liked him, and she stayed close to him when they went swimming. D. could not recall a period of time when he did not see victim1, except for when he got dressed after finishing his swim. He did not see victim1 go down to the lake by herself. He also did not see Camarillo go down to the lake by himself. Later that same day, he went on a hike led by A1 and Camarillo. The group did not have flashlights. D. did not recall anything unusual about the hike, and he did not lose track of either victim1 or Camarillo during the outing.
After camping, when the group returned to Camarillo's house, the children all went to play video games. Later, they went out as a group to the backyard where there was a trampoline. He did not remember seeing victim1 and Camarillo alone together in the house.
D. testified that two years before Camarillo's trial, he spoke to wife about what happened on the camping trip. About a week before he testified at trial, D. spoke with wife again about what happened on the camping trip. D. acknowledged that he would not have been able to recall the details of the trip if he had not spoken with wife first.
iv. Camarillo's Testimony
Camarillo testified on his own behalf. He first testified about the camping trip and denied that he was ever alone with victim1 by the lake. According to Camarillo, when the family went hiking, they had a flashlight and a lantern-like light. He led the hike with A1 and did not hike behind victim1. During the hike, he played a prank on the children by running ahead of the group, hiding, and popping out when they passed by. He denied touching victim1 in any way during the hike. He also denied pinning victim1 against a wall when they arrived back home after the camping trip, and further denied that he ever put his lips on victim1's neck or shoulder, or that he grabbed her leg during a car ride.
According to Camarillo, victim3 would often stay in his sons' rooms when she came to sleep over at his house. There might have been one or two occasions where victim3 slept alone in the living room, and sometimes she slept in the living room with Camarillo's sons. Camarillo denied that he ever tried to get on top of victim3 while she slept alone in the living room. He also denied that he made victim3 touch his penis. Camarillo confirmed that he had once given victim3 a ride home from school. He denied that he grabbed her shirt during a car ride. He testified that victim3 was getting into trouble at school and with family around that time.
When asked if he would ever touch victim2 in the way that she described at trial, Camarillo answered that he would never touch any child like that.
Camarillo testified that in 2013, a year before the allegations against him were made, he called E2 and left him a voicemail apologizing and saying that he was sorry. At the time, Camarillo was having problems with his business. He was also having problems with wife, who was complaining that he was not "being there" for his family and was "not bringing money home." Camarillo explained that when he told E2 over voicemail that he did not mean to hurt anybody, he was referring to the children who were involved in gangs and drugs that he wanted to help with his business.
j. Character Witnesses
The defense called several character witnesses to testify on Camarillo's behalf, including parents of children who visited his business. One of the parents generally testified that he believed Camarillo was trustworthy. Another parent testified that he did not know Camarillo personally, but he never saw him do anything inappropriate with the children. Several relatives testified that they found Camarillo to be trustworthy, including Camarillo's mother-in-law (hereafter mother-in-law).
Mother-in-law, who did not live close by, previously told investigators that when victim3 turned 13, she became defiant and disrespectful and started dressing differently. She noticed the change after spending one night with Camarillo's family, and she did not know the reason for the change in victim3's behavior. She initially testified that she believed that "[a]ll teenagers act like that."
3. Verdict, Motion for a New Trial, and Sentencing
On June 19, 2017, the jury found defendant guilty of all charges except for count 6, committing a lewd and lascivious act on a child under 14 (§ 288, subd. (a)). The jury also found true five allegations that the offenses were committed against more than one victim (§ 667.61, subds. (b) & (e)). Camarillo filed a motion for a new trial, which the trial court denied.
Thereafter, the trial court sentenced Camarillo to four consecutive terms of 15 years to life for his convictions under section 288, subdivision (a) (counts 1, 3, 4, & 5), a consecutive term of 15 years to life for his conviction under section 288, subdivision (b)(1) (count 2), the middle term of two years for his conviction under section 288, subdivision (c)(1) (count 7), and a consecutive term of eight months for his conviction under section 288, subdivision (c)(1) (count 8). The trial court further imposed a concurrent jail term of 364 days for his misdemeanor convictions for counts 9, 10, and 11. In aggregate, the trial court sentenced Camarillo to a total term of 75 years to life consecutive to two years and eight months.
II. DISCUSSION
1. Decision to Consult an Attorney and Prearrest Silence
Camarillo argues that the trial court erroneously admitted evidence that he consulted with an attorney before he was arrested and that he followed the advice of the attorney to stay silent and not speak with the police. Camarillo argues that his arguments were preserved by his defense counsel's objections below, and in the event any issues were not preserved, his counsel rendered ineffective assistance.
a. Background
When the prosecutor cross-examined Camarillo, he asked Camarillo the following question: "Isn't it true this is the first time that anybody in this courtroom is hearing this testimony?" Defense counsel objected to the question without stating any specific grounds, which the trial court initially sustained.
Thereafter, the trial court held an off-the-record sidebar discussion with both attorneys. Defense counsel clarified that he was objecting to the prosecutor's question on the basis of "[T]he Fifth Amendment to the United States Constitution." The prosecutor argued that the Fifth Amendment was inapplicable because his question referred only to the period of time between when Camarillo first learned of the allegations against him and his arrest. The trial court agreed with the prosecutor and overruled the objection.
The prosecutor then asked Camarillo the question again, and the following exchange took place:
"[Camarillo]: I was advised to by my attorney. I wanted to.
"[Prosecutor]: You never told the police this story, did you?
"[Camarillo]: I wanted to call, but I was advised not to by an attorney. I wanted to.
"[Prosecutor]: When you were arrested, you did not tell them this story, did you? 'Yes' or 'no'?
"[Camarillo]: I said I wanted to. I was advised not to.
"[Prosecutor]: When you were arrested, you didn't have a lawyer next to you.
"[Defense counsel]: Objection.
"[Trial court]: Sustained
"[Prosecutor]: 'Yes' or 'no.' Just answer the question. Okay? And I'll move on. You didn't tell the police this story when you were arrested, did you? 'Yes' or 'no.' Forget the reason why. 'Yes' or 'no.' You didn't tell the police this story.
"[Defense counsel]: Objection.
"[Trial court]: Overruled. He can answer the question.
"[Camarillo]: I was advised not to. I wanted to.
"[Prosecutor]: So you wanted to, but the fact is, you didn't tell this story.
"[Camarillo]: No. I would have.
"[Prosecutor]: Answer the question.
"[Camarillo]: I'm answering your question. I was advised not to.
"[Prosecutor]: But you didn't so, therefore, you didn't.
"[Camarillo]: Well, I wanted to.
"[Prosecutor]: You do agree this is the first time we're hearing about this.
"[Camarillo]: I wanted to call. I wanted to go. I was advised not to.
"[Trial court]: He's answered your question, Counsel. Move on.
"[Prosecutor]: I don't believe he has, Your Honor. I'll ask one more time. [¶] . . . [¶] Is this the first time we're hearing your story. 'Yes' or 'no'?
"[Defense counsel]: Asked and answered, Your Honor.
"[Trial court]: Sustained."
Later during cross-examination, the prosecutor again returned to the same line of questioning. The following exchange then occurred:
"[Prosecutor]: Quick timeline, Mr. Camarillo. These allegations were made in July of 2014?
"[Camarillo]: Yes, sir.
"[Prosecutor]: At some point, you're arrested.
"[Camarillo]: Yes, sir.
"[Prosecutor]: Okay. You were taken to the station.
"[Camarillo]: Yes, sir.
"[Prosecutor]: All right. You didn't have a lawyer then.
"[Camarillo]: No, I didn't.
"[Prosecutor]: Okay. So you wanted to give a statement, but you didn't.
"[Camarillo]: Yes.
"[Prosecutor]: You were arraigned 48 hours later.
"[Camarillo]: I don't remember.
"[Prosecutor]: Couple days later, you came to court?
"[Camarillo]: That attorney that I did have told me not to speak when he was present.
"[Prosecutor]: Right. That's when you came to court.
"[Camarillo]: Yes.
"[Prosecutor]: Exactly. So when you were arrested and taken to the station, you could have told the police this story and no one had advised you not to.
"[Camarillo]: No. I was already advised beforehand.
"[Prosecutor]: What?
"[Camarillo]: I was already advised before I got arrested.
"[Prosecutor]: Who advised you?
"[Camarillo]: An attorney because I wanted to call. When I was going to call, I was told, because of the type of allegations, that I should maybe talk to an attorney. And I said for what? Because they'll twist words up.
"[Prosecutor]: Oh, okay. So you knew these allegations were you, you heard about all these allegations, and it's your testimony that you called an attorney right then and there?
"[Camarillo]: No. When I had heard, I wanted to call the cops. And I wanted to tell them what was being said.
"[Prosecutor]: Mr. Camarillo, before the cops came to arrest you, you're testifying now is that you called, is that you called an attorney once you heard the allegations against you?
"[Camarillo]: Yeah. I was told not to."
Camarillo went on to explain that he had spoken to a paralegal who was his mother's friend.
After a lunch recess, the prosecutor again asked Camarillo about his decision to consult with an attorney and his decision not to voluntarily contact the police. The following exchange took place:
"[Prosecutor]: Where we left off, you testified that you heard about the allegations on July 2nd and 3rd of 2014. Correct?
"[Camarillo]: Correct.
"[Prosecutor]: All right. And you wanted to tell your side of the story.
"[Camarillo]: Yes.
"[Prosecutor]: From July. We'll say July 2nd or 3rd, when you first heard the allegations against you by your family members until about August 20th, you were still a free man. Correct?
"[Camarillo]: Yes.
"[Prosecutor]: I mean, you had no contact with the police.
"[Camarillo]: No.
"[Prosecutor]: Okay. So for that month, you knew about the allegations. You were sitting at home and you testified you wanted to tell your side of the story. And let's assume this part is true, but, because of a [paralegal]
"[Camarillo]: [Paralegal.]
"[Prosecutor]: —she told you not to say anything and, therefore, you didn't. Correct?
"[Camarillo]: Correct.
"[Prosecutor]: Okay. So that was the only thing that prevented you from wanting to get your side of the story out the whole month from the time you first heard the allegations until you were, until [you were] arrested August 20th. I'm only talking—this line of questioning is only talking about this time you were still a free man. Okay? Before you were arrested. I mean, you had allegations levied against you by your nieces. I mean, wouldn't, you would have wanted, during this month, to just tell somebody, anybody the story that you told this jury today?
"[Camarillo]: I told an attorney that I had contact with, and he notified me he would take care of it.
"[Prosecutor]: Okay. Let's assume that's true. Was the attorney through this [paralegal]?
"[Camarillo]: Correct.
"[Prosecutor]: All right. Let's assume that's true. Your first reaction upon finding about the allegations against you with the nieces was to try to seek legal counsel and not tell your side of the story.
"[Camarillo]: I wanted to tell my side, but I know people, I know the stories get mixed, I should say, when it gets told to the police. I did not want that to happen, especially with what was being said.
"[Prosecutor]: You talked to the [paralegal] who directed you to someone after that conversation we won't get into. You decided you weren't going to say anything?
"[Camarillo]: I was notified by the attorney not to say anything because I told him I'll take care of it.
"[Prosecutor]: After that conversation, your first reaction was to try to seek some type of legal counsel and you didn't say anything for a whole month prior to getting arrested. 'Yes' or 'no'?
"[Camarillo]: No.
"[Prosecutor]: Thank you. No further questions."
During redirect examination, defense counsel admitted a receipt dated July 11, 2014, from the attorney that the paralegal worked for.
When the prosecutor conducted his recross-examination, he again returned to the same topic, and the following colloquy occurred:
"[Prosecutor]: So during the month of the time you found out about the allegations on July 2nd or 3rd of 2014, until around August 20th when you were ultimately arrested, the only thing you knew about was a shower incident and the incident with
"[Camarillo]: The hike.
"[Prosecutor]: —the hike. Okay. And you immediately went to seek counsel, a lawyer, on July 11, 2014, based on only those two things alone.
"[Camarillo]: Those are serious.
"[Prosecutor]: They are.
"[Camarillo]: So yes.
"[Prosecutor]: Okay. Your testimony is you wanted to say something, but during the whole month, you were a free man, you decided not to because your first reaction was to go to a lawyer. Your first reaction wasn't to tell somebody.
"[Camarillo]: Yes.
"[Prosecutor]: Tell your side of the story, your first reaction was to go to a lawyer.
"[Trial court]: Haven't we plowed this ground over and over?
"[Prosecutor]: Your Honor, I have a right to cross examine this witness. I would ask that I get the permission to do so.
"[Trial court]: You did on this very point.
"[Prosecutor]: He brought it up on redirect. I just want to make clear. I'll move on.
"[Trial court]: All right.
"[Prosecutor]: Isn't that true, Mr. Camarillo?
"[Camarillo]: Can you repeat the question?
"[Prosecutor]: Your first reaction after hearing only about these two incidences was not to tell somebody what you told the jury today. It was to go seek a lawyer first. Is that correct?
"[Camarillo]: Yes."
Later, the paralegal that Camarillo contacted was called as a rebuttal witness by the defense. The paralegal testified that she referred Camarillo to an attorney, and she told Camarillo, "[I]f I were you, I'd see this attorney before I talk with anybody."
b. Forfeiture of Claimed Evidentiary Error
Camarillo argues that evidence that he consulted with an attorney and of his prearrest silence was erroneously admitted for multiple reasons: (1) the evidence was irrelevant, (2) admission of the evidence violated his due process rights, (3) the evidence should have been excluded under Evidence Code section 352 as more prejudicial than probative, and (4) the admission of the evidence improperly burdened his attorney-client privilege. Camarillo argues that defense counsel's objections during trial were sufficient to preserve all of his claims on appeal. We disagree and conclude that defense counsel's failure to make timely, specific objections forfeited Camarillo's arguments, except for his claims involving the Fifth Amendment.
Evidence Code section 353, subdivision (a) provides that a verdict or finding will not be set aside by reason of an erroneous admission of evidence unless "[t]here appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion." The California Supreme court has " ' "consistently held that [a] 'defendant's failure to make a timely and specific objection' on the ground asserted on the appeal makes that ground not cognizable." ' " (People v. Demetrulias (2006) 39 Cal.4th 1, 20.) Here, Camarillo did not make specific objections on several of the grounds now raised on appeal, such as relevancy and Evidence Code section 352. He also did not specifically object when the prosecutor elicited testimony that he had consulted an attorney. As a result, he has forfeited these claims of evidentiary error.
Camarillo argues that defense counsel's objections were sufficient because the trial court prohibited speaking objections at the prosecution's request. He argues that this prohibition weighs in favor of a less rigorous application of the requirement that a timely and specific objection be made below to preserve appellate challenges to evidence. Camarillo, however, cites to no cases to support his argument, and we disagree with his assertion that a prohibition against speaking objections releases him from the requirements of Evidence Code section 353, subdivision (a). Defense counsel could have stated specific grounds for his objections without making additional arguments that could have been construed by the trial court as an improper speaking objection. Or, defense counsel could have requested to speak to the trial court outside the presence of the jury. None of these avenues were pursued.
Prior to trial, the People filed a motion in limine seeking to introduce certain evidence at Camarillo's trial, including statements made by Camarillo prior to his arrest. The motion in limine was discussed by the trial court and counsel in chambers, and the motion was ultimately granted. Camarillo did not object to the trial court's ruling.
Finally, Camarillo argues that even if we find defense counsel's objections inadequate, we should review the constitutional components of his claims, which he insists were preserved by his counsel's Fifth Amendment objection. In addition to his Fifth Amendment argument, Camarillo argues on appeal that the challenged evidence violated his due process rights in several ways and cites generally to cases that have concluded that admission of evidence that a criminal defendant consulted with an attorney violates the due process clause of the Fourteenth Amendment and the right to employ counsel at any time. He also argues that admitting evidence of his prearrest silence was fundamentally unfair because his silence was derived from his decision to consult with an attorney.
As we have stated, Camarillo objected below to the prosecutor's questions on the basis that they violated his Fifth Amendment rights. It is unclear whether defense counsel intended to object to the questions on the ground that they violated Camarillo's Fifth Amendment right to counsel or his Fifth Amendment right to remain silent. We presume that he meant both. The issue is whether this generic Fifth Amendment objection can be construed as preserving all of Camarillo's constitutional arguments.
On appeal, Camarillo concedes that "[t]his case involves consultation with an attorney before a custodial interrogation, meaning the Fifth Amendment right to counsel had not attached." Camarillo, however, also argues that the Fifth Amendment protects against compelled self-incrimination in all settings.
Typically, failure to object to the admission of evidence on constitutional grounds forfeits the issues on appeal. (See People v. Benson (1990) 52 Cal.3d 754, 786, fn. 7 [failure to object to admission of evidence as violative of Fifth, Eighth, and Fourteenth Amendments forfeits issue on appeal].) There are certain limited exceptions to this general rule. For example, in People v. Partida (2005) 37 Cal.4th 428 (Partida), the California Supreme Court held that a defendant may raise for the first time on appeal an argument that the admission of evidence in violation of state law rendered the trial fundamentally unfair in violation of due process. (Id. at p. 435.)
Here, Camarillo specifically objected to the admission evidence of his prearrest silence based on the Fifth Amendment. The trial court considered this argument on the merits and rejected it, apparently concluding that the Fifth Amendment was not implicated if the evidence solely concerned the period of time before Camarillo's arrest. As a result, Camarillo's claim that the admission of his prearrest silence violated the Fifth Amendment is preserved. And like in Partida, Camarillo's Fifth Amendment objection preserved his arguments to the extent that they can be construed to mean that the trial court's admission of his prearrest silence had the additional legal consequence of violating his due process rights, rendering his trial fundamentally unfair in violation of the Fourteenth Amendment. (Partida, supra, 37 Cal.4th at p. 439.)
We reach a different conclusion on Camarillo's claim that the admission of evidence that he consulted with an attorney prior to his arrest was fundamentally unfair and violated his due process rights. Camarillo's Fifth Amendment objection to his prearrest silence cannot be reasonably construed to encompass objections to evidence that he consulted with an attorney. Defense counsel first objected when the prosecutor asked Camarillo if he was telling his side of the story for the first time at court. Defense counsel did not object when Camarillo later answered that he was advised not to do so by an attorney. Defense counsel made a second objection when the prosecutor asked Camarillo if he had an attorney next to him when he was arrested. Camarillo did not specify the basis for this objection, which the trial court sustained. Defense counsel objected a third time when the prosecutor asked Camarillo if, without taking into consideration the reasons for his decision, he declined to tell the police his side of the story following his arrest. Again, defense counsel did not provide a specific basis for this objection, which the trial court overruled. In sum, the record reflects that defense counsel did not specifically object when the prosecutor elicited testimony from Camarillo that his prearrest silence derived from his decision to consult with an attorney.
Deciding whether admission of Camarillo's prearrest silence violated the Fifth Amendment—the only objection that defense counsel made with any specificity below—requires a different analysis than deciding whether admission of his decision to consult an attorney rendered his trial fundamentally unfair or unduly burdened his right to counsel. Camarillo is, in essence, in part suggesting that "we should find error based on evidence the trial court was never ask[ed] to exclude." (People v. Ramos (2013) 216 Cal.App.4th 195, 208.) Because "[a] defendant may not argue on appeal that the court should have excluded the evidence for a reason not asserted at trial," we find that Camarillo forfeited his claims regarding the admission of evidence that he consulted an attorney. (Partida, supra, 37 Cal.4th at p. 431.)
c. Admission of Camarillo's Prearrest and Pre-Miranda Silence and the Fifth Amendment
Next, we examine whether the admission of Camarillo's prearrest and pre-Miranda silence violated the Fifth Amendment.
Miranda v. Arizona (1966) 384 U.S. 436.
The United States Supreme Court has held that post-Miranda silence cannot be used against criminal defendants. In Griffin v. California (1965) 380 U.S. 609 (Griffin), the United States Supreme Court held that a defendant's decision not to testify and remain silent cannot be used against him. (Id. at p. 610.) In Doyle v. Ohio (1976) 426 U.S. 610, the Supreme Court prohibited the use of a defendant's post-Miranda silence. (Doyle, supra, at p. 618.)
Pre-Miranda silence, however, has been found admissible in certain circumstances. In Jenkins v. Anderson (1980) 447 U.S. 231 (Jenkins) the United States Supreme Court held that using a defendant's pre-Miranda, prearrest silence as impeachment evidence did not violate the Fifth or the Fourteenth Amendments. (Id. at pp. 236-238.) Jenkins observed that " '[h]aving voluntarily taken the stand, [the defendant] was under an obligation to speak truthfully and accurately, and the prosecution here did no more than utilize the traditional truth-testing devices of the adversary process.' " (Jenkins, supra, at p. 238.) Jenkins also concluded that "no governmental action induced petitioner to remain silent before arrest" and "the fundamental unfairness present in Doyle is not present" when impeaching a criminal defendant using his or her prearrest silence. (Jenkins, supra, at p. 240.)
Jenkins did not decide whether the Fifth Amendment permits the admission of prearrest silence in the prosecution's case-in-chief. (Jenkins, supra, 447 U.S. at p. 236, fn. 2.)
Jenkins clarified that its decision did not "force any state court to allow impeachment through the use of prearrest silence," and "[e]ach jurisdiction remains free to formulate evidentiary rules defining the situations in which silence is viewed as more probative than prejudicial." (Jenkins, supra, 447 U.S. at p. 240.)
Following Jenkins, the United States Supreme Court decided Fletcher v. Weir (1982) 455 U.S. 603 (Fletcher). In Fletcher, the prosecutor cross-examined the defendant about why he failed to give an exculpatory explanation for the crime when he was initially arrested. (Id. at pp. 603-604.) There was no evidence that the defendant had received Miranda warnings at the time. (Id. at p. 605.) Citing Jenkins, the Fletcher court ultimately concluded that "[i]n the absence of the sort of affirmative assurances embodied in the Miranda warnings, we do not believe that it violates due process of law for a State to permit cross-examination as to postarrest silence when a defendant chooses to take the stand." (Id. at p. 607.)
California courts have adhered to Jenkins and Fletcher and have concluded that prearrest silence is admissible. (People v. Free (1982) 131 Cal.App.3d 155, 165 ["Prearrest silence in circumstances in which there is no inference of a reliance on the right to silence may be used to impeach by way of cross-examination."]; People v. O'Sullivan (1990) 217 Cal.App.3d 237, 240 ["Since the admission of evidence of pre-Miranda silence to rebut a defense claimed for the first time at trial is permitted by federal law [citation], [the defendant's] pre-Miranda silence was admissible on cross-examination and rebuttal."].)
Most recently, the California Supreme Court decided People v. Tom (2014) 59 Cal.4th 1210 (Tom). In Tom, the defendant allegedly broadsided another car while speeding and driving under the influence. (Id. at p. 1221.) At trial, the prosecutor and the defense both discussed evidence of the defendant's postarrest, pre-Miranda silence. (Ibid.) The prosecutor argued that it was " 'particularly offensive' " that the defendant did not ask the passengers in the other car how they were doing after the collision. (Ibid.) On appeal, the appellate court reversed the judgment, finding that admitting this evidence violated the Fifth Amendment. (Id. at p. 1222.) The California Supreme Court granted review. In its analysis, the Tom court cited to Fletcher and Jenkins and reiterated that "[t]he prosecution may use a defendant's pretrial silence as impeachment, provided the defendant has not yet been Mirandized." (Id. at p. 1223.) Relying on Salinas v. Texas (2013) 570 U.S. 178, the Tom court further held that the prosecution may use a defendant's prearrest silence as substantive evidence of guilt, provided he or she did not expressly invoke the Fifth Amendment. (Tom, supra, at p. 1223.)
The California Supreme Court then proceeded to analyze whether the Tom defendant's postarrest, preMiranda silence could be admitted as substantive evidence of guilt. (Tom, supra, 59 Cal.4th at p. 1223.) The Tom court concluded that the defendant's postarrest, preMiranda silence could be used against him because the defendant did not invoke his privilege against self-incrimination at any point. (Tom, supra, at p. 1225.)
Considered together, these cases hold that the use of a defendant's pre-Miranda silence (both prearrest and postarrest) is not constitutionally problematic and does not run afoul of the Fifth Amendment or the Fourteenth Amendment. Here, the elicited evidence concerned Camarillo's prearrest silence before he was read his Miranda rights, and it was used as impeachment evidence during cross-examination. Under Jenkins and Fletcher, we conclude that admission of this evidence did not violate the Fifth Amendment or the Fourteenth Amendment and did not render his trial fundamentally unfair. (Jenkins, supra, 447 U.S. at pp. 236-239; Fletcher, supra, 455 U.S. at p. 607.)
In his opening brief, Camarillo also contends that the evidence violated the due process guarantees under the Fourteenth Amendment, which require that "criminal prosecutions must comport with prevailing notions of fundamental fairness," because his silence derived from advice of counsel. (California v. Trombetta (1984) 467 U.S. 479, 485.) As we previously determined, Camarillo forfeited this argument. His counsel did not make timely, specific objections on these grounds below.
d. Forfeiture of Prosecutorial Misconduct Claims
In addition to his claims of evidentiary error, Camarillo argues that the prosecutor committed misconduct by eliciting the challenged evidence. As we explain, we find that he has forfeited this claim.
" 'The applicable federal and state standards regarding prosecutorial misconduct are well established. " 'A prosecutor's . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct "so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process." ' " [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves " ' "the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury." ' " ' " (People v. Hill (1988) 17 Cal.4th 800, 819 (Hill).)
"[I]n order to preserve a claim of prosecutorial misconduct for appeal, a defendant must make a timely specific objection to the alleged misconduct and request the jury be admonished to disregard it." (People v. Seumanu (2015) 61 Cal.4th 1293, 1339 (Seumanu).) "The foregoing, however, is only the general rule. A defendant will be excused from the necessity of either a timely objection and/or a request for admonition if either would be futile." (Hill, supra, 17 Cal.4th at p. 820.)
Here, Camarillo did not object to the prosecutor's questions about his prearrest silence and his decision to consult with an attorney on the basis that they constituted misconduct, and there is nothing in the record that affirmatively demonstrates that such an objection would have been futile. As a result, his claims of prosecutorial misconduct are not preserved for appeal.
e. Ineffective Assistance of Counsel
To the extent his claims of evidentiary error and prosecutorial misconduct have been forfeited, Camarillo argues that defense counsel provided ineffective assistance by failing to preserve his claims. As we have concluded that defense counsel preserved only Camarillo's Fifth Amendment claims, we must examine whether his counsel was ineffective by failing to object to the challenged evidence on the additional grounds now raised on appeal.
i. General Principles
"Under both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution, a criminal defendant has the right to the assistance of counsel." (People v. Ledesma (1987) 43 Cal.3d 171, 215.) To prevail on a claim of ineffective assistance of counsel, a criminal defendant must establish both that his counsel's performance was deficient and that he suffered prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) The deficient performance component of an ineffective assistance of counsel claim requires a showing that "counsel's representation fell below an objective standard of reasonableness. [¶] . . . under prevailing professional norms." (Id. at p. 688.)
With respect to prejudice, a defendant must show "there is a reasonable probability"—meaning "a probability sufficient to undermine confidence in the outcome"—"that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland, supra, 466 U.S. at p. 694.) We "need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." (Id. at p. 697.)
ii. Prejudice
We first address the prejudice prong of the Strickland analysis because we find it is dispositive. Assuming defense counsel was ineffective when he failed to object to the challenged evidence on the grounds raised on appeal, to prevail on a claim of ineffective assistance of counsel, Camarillo must also demonstrate that his counsel's acts or omissions caused him prejudice. In other words, reversal is required only if Camarillo can show that "there is a reasonable probability"—meaning "a probability sufficient to undermine confidence in the outcome"—"that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland, supra, 466 U.S. at p. 694.) Camarillo argues prejudice is readily demonstrated because the evidence in his case was close and turned on credibility, and the prosecutor's repeated questions about his consultation with an attorney and his prearrest silence likely influenced the jury.
In his reply brief, Camarillo claims that to the extent this court finds that admission of the evidence violated his constitutional right to due process, prejudice must be analyzed under the standard set forth in Chapman v. California (1967) 386 U.S. 18, and not the standard set forth in Strickland, supra, 466 U.S. at page 694. Camarillo's premise that we must examine prejudice using the Chapman standard is without merit. "[W]hen an evidentiary error is forfeited and a claim of ineffective assistance of counsel has been made, we must review the error under the less burdensome Strickland standard for prejudice instead of the stricter Chapman harmless error standard related to evidentiary error based on constitutional claims." (People v. Blessett (2018) 22 Cal.App.5th 903, 955, disapproved of on a different point as stated in People v. Perez (Feb. 27, 2020, S248730) ___ Cal.5th ___ .)
Preliminarily, we agree with Camarillo that evidence that he consulted with an attorney after he learned of the allegations was not probative of his guilt. (See Bruno v. Rushen (1983) 721 F.2d 1193, 1194 (Bruno) ["in no situation in a criminal trial such as this one do we feel the mere act of hiring an attorney is probative in the least of the guilt or innocence of defendants"].) Likewise, although the United States Supreme Court previously upheld the use of prearrest silence to impeach a criminal defendant's credibility (Jenkins, supra, 447 U.S. 231), Camarillo's decision to follow his attorney's advice and remain silent was not particularly probative.
On the other hand, evidence of Camarillo's prearrest silence and his decision to consult with an attorney was prejudicial. In some cases, courts have characterized evidence of a defendant's pre-Miranda silence as carrying a high potential for prejudice. For example, in United States v. Hale (1975) 422 U.S. 171, the United States Supreme Court observed that "evidence of silence at the time of arrest [is] generally not very probative of a defendant's credibility, but it also has a significant potential for prejudice. The danger is that the jury is likely to assign much more weight to the defendant's previous silence than is warranted. And permitting the defendant to explain the reasons for his silence is unlikely to overcome the strong negative inference that the jury is likely to draw from the fact that the defendant remained silent at the time of arrest." (Id. at p. 180.)
Likewise, federal courts have consistently concluded that evidence of a criminal defendant's consultation with an attorney is highly prejudicial. For example, in Hunter v. U.S. (D.C.App. 1992) 606 A.2d 139 (Hunter), the District of Columbia Court of Appeals noted that a defendant's pretrial silence had a significant potential for prejudice especially when the defendant was represented by counsel. (Id. at p. 143.) The Hunter court explained that the reality "known to judges and lawyers who participate in our criminal justice system" (id. at p. 144)—that under the adversarial system, litigants have an obvious tactical advantage in keeping "his [or her] own evidence under wraps" (id. at p. 143)—may not be known to jurors who are not well-versed in the legal system. "Not being acquainted with the perils and pitfalls of premature disclosure of one's case to one's adversary, a fair-minded juror might well perceive a good deal of common sense in an argument of the kind with which the prosecutor attempted to skewer [the defendant] in this case—'if he had an innocent explanation, why didn't he tell the United States Attorney and get him to dismiss the charges?' " (Id. at p. 144.)
In some cases, courts have found that admission of such evidence was prejudicial error warranting reversal of a defendant's convictions. In United States ex rel. Macon v. Yeager (1973) 476 F.2d 613 (Yeager), the defendant sought review from the Third Circuit of the district court's denial of his application for a writ of habeas corpus. (Ibid.) During the defendant's trial, the prosecutor argued during closing summation that the defendant had contacted his attorney after he committed the crime and questioned if doing so was an act of innocence. (Id. at p. 614.) The Yeager court relied on Griffin, supra, 380 U.S. 609, where the United States Supreme Court concluded that the prosecutor's comment about the defendant's failure to testify in his own defense violated the Fifth Amendment, and determined that the prosecutor's comment about the defendant's decision to contact an attorney sought or reasonably expected to raise "in the minds of the jurors an inference of guilt and, as a result, penalized him for the exercise of his constitutional right to counsel." (Yeager, supra, at p. 615.)
Courts from other jurisdictions have reached similar conclusions. In State v. Angel T. (2009) 292 Conn. 262, the Supreme Court of Connecticut held that " '[e]vidence of a criminal defendant's consultation with an attorney [as] highly prejudicial, as it is likely to give rise to the improper inference that a defendant in a criminal case is, or at least believes himself to be, guilty.' " (Id. at p. 283.) And in State v. Dixon (2005) 279 Kan. 563, disapproved of on a different point as stated in State v. Wright (2010) 290 Kan. 194, the Kansas Supreme Court determined that the prosecutor's repeated references to the defendant's decision to contact counsel, which implied that only guilty people contact their attorneys, "amounted to a flagrant violation of [the defendant's] right to a fair trial in that the conduct penalized him for exercising his right" and was not harmless error. (Dixon, supra, at p. 592.)
The cases cited above are not completely analogous to Camarillo's situation. They arise from different procedural postures, and, in some instances, have reversed convictions after applying stricter standards of review for prejudicial error (such as the Chapman harmless-beyond-a-reasonable-doubt standard) than the standard that we must apply under Strickland, supra, 466 U.S. at page 694, which requires that the defendant show that there was a reasonable probability that he would have received a more favorable amount had counsel's performance not been deficient. (See, e.g., Bruno, supra, 721 F.2d at p. 1195 [applying Chapman standard of review]; Yeager, supra, 476 F.2d at p. 617 [same].)
Here, we must examine prejudice under the Strickland standard, which requires that "[t]he likelihood of a different result must be substantial, not just conceivable." (Harrington v. Richter (2011) 562 U.S. 86, 112.) This type of evidence is not per se prejudicial and reversal is not required in this situation. (See Hunter, supra, 606 A.2d 139 [reversal was not required under the plain error doctrine when prosecutor commented that defendant should have presented his defense to the criminal charges to the United States Attorney's Office following his indictment].) And after a careful review of the record, we conclude that the evidence was not prejudicial under Strickland.
In coming to this conclusion, we acknowledge that this is a close case. First, we agree with Camarillo that the challenged evidence occupied a relatively prominent place during his trial. The prosecutor cross-examined Camarillo multiple times about what he did after he learned that he was being accused of molesting victim1, victim2, and victim3. At one point, the trial court even stated that the prosecutor had "plowed this ground over and over." Furthermore, in an effort to bolster Camarillo's defense, defense counsel ultimately decided to call the paralegal that Camarillo had contacted to testify about how she referred Camarillo to a defense attorney, and how she told Camarillo, "[I]f I were you, I'd see this attorney before I talk with anybody." Although the prosecutor did not mention this evidence during his closing argument, this was not a case where the prosecutor merely made a fleeting reference to the challenged evidence. The prosecutor's repeated references to Camarillo's prearrest silence and his decision to consult with an attorney are apparent in the record. Second, we agree with Camarillo that his credibility was important to his defense. The only witnesses to the crimes in question were Camarillo and the victims.
Nonetheless, this is not a case where there was no other evidence of Camarillo's guilt aside from the victims' testimonies. As the Attorney General argues, the jury could have reasonably inferred that the voicemail that Camarillo left for E2 was an apology for committing the charged crimes. Moreover, Camarillo's explanation for the voicemail strained credulity. On direct examination, Camarillo testified that he left E2 the voicemail in 2013, a year before the victims accused him of molestation, and that when he said he was sorry, he was referencing his troubles with his business and his marriage, and how he did not want to hurt "the kids in the streets involved in gangs and drugs." Camarillo, however, acknowledged on cross-examination that E2 never visited his business. He also acknowledged that for his version of events to be true, E2 must have saved the voicemail for an entire year before turning it over to the police in 2014.
Camarillo's explanation for the voicemail was also contradicted by wife, who testified that she heard Camarillo call E2 between July 2 and July 4, 2014, not in 2013. And, contrary to Camarillo's assertion that he was apologizing about his business's failures, wife testified that she believed that Camarillo was apologizing for hurting victim3 with his decision to ban her from his business and home. At the same time, wife's explanation for the voicemail was called into question. Wife testified that victim3 sent son1 messages on Facebook expressing sadness over being banned from Camarillo's business. Yet son1 testified that he could not recall receiving this type of message from victim3.
Camarillo argues that the relative strength of the voicemail evidence was largely contingent on the jurors' assessment of Camarillo's credibility, which was erroneously harmed by the admission of the challenged evidence. We agree that the more credible the jurors found Camarillo, the more likely they would accept his explanation for the voicemail. And if the jury found Camarillo's explanation to be credible, wife's contradictory explanation for the voicemail could be explained as a mistake on her part. Camarillo's argument, however, ignores the deficiencies in his own explanation about the voicemail and the deficiencies in wife's explanation about the voicemail, which likely already harmed his credibility.
Camarillo also insists that there were significant reasons to doubt the victims' veracity. Camarillo argues that victim1, the first victim to come forward, made her allegations only after she was confronted by her aunt J., who recounted her own experience of being molested when she was younger. Thus, Camarillo argues that the jury could have inferred that victim1 accused him of molestation only after being directly suggested to do so. Moreover, victim2 and victim3 made their allegations against Camarillo after they were told that victim1 was accusing Camarillo of touching her inappropriately, and Camarillo opines that the jury could have inferred that victim2 and victim3 accused Camarillo out of anger. Camarillo further argues that victim3 had personal reasons to be upset with him because he had banned her from his house and business. Finally, Camarillo claims that the allegations themselves were not entirely credible because some of the acts were perpetrated near or around other people, but nobody else witnessed the crimes.
We do not agree with Camarillo's assessment that the evidence demonstrates that the victims were motivated to fabricate their accusations. Camarillo's own testimony provides evidence to the contrary. During cross-examination, Camarillo testified that he did not have a strong relationship with victim1, who was the first victim to come forward, and he knew of no reason why victim1 would dislike him. Likewise, Camarillo testified that he knew of no reason why victim2 would dislike him. And even though some of the incidents took place when other family members were nearby, the victims did not testify that anybody else saw or noticed what was happening. Victim1 testified that Camarillo kissed her on her shoulder while his sons sat next to her, but she explained that they were playing video games and were not paying attention to her. And D., who testified that the events of the camping trip did not transpire as victim1 described, had his credibility undermined when he acknowledged he spoke with wife twice about what happened on the trip, and he would not have remembered all the details of the trip without speaking with her first.
Finally, Camarillo argues that given the importance of his credibility to the proceedings, any evidence that discredited his honesty was prejudicial error. (See People v. Adams (1939) 14 Cal.2d 154, 167 (Adams) [in a case where allegations of molestation are made, "the only defense available, ordinarily, to the accused is his own denial of any asserted misconduct, together with evidence of a former good reputation; otherwise, he is utterly defenseless and at the mercy of a jury which probably is very much prejudiced"], overruled on a different point as stated in People v. Burton (1961) 55 Cal.2d 328; People v. Jandres (2014) 226 Cal.App.4th 340, 360 (Jandres) [" ' " 'any substantial error tending to discredit the defense, or to corroborate the prosecution, must be considered as prejudicial' " ' " when case involves credibility contest between victim and defendant].)
We disagree. In this case, there were three victims who came forward and testified, and all three victims described incidents that were similar in nature. (See Adams, supra, 14 Cal.2d at pp. 156-159 [only one child victim and evidence came from testimony of child victim and victim's mother].) And, as we have explained, there was other evidence that corroborated Camarillo's guilt, including the voicemail that he left for E2. Furthermore, the challenged evidence, though prejudicial, did not directly brand Camarillo as dishonest or as a liar. (See Jandres, supra, 226 Cal.App.4th at p. 360 [erroneous admission of evidence that directly contradicted defendant's testimony found to be prejudicial error].)
Based on the evidence against Camarillo, we conclude that although the evidence was prejudicial, there is no reasonable probability—meaning "a probability sufficient to undermine confidence in the outcome"—"that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland, supra, 466 U.S. at p. 694.) Thus, reversal of Camarillo's convictions is not required.
2. Whether the Victims Were Lying and Conspiring Against Camarillo
Next, Camarillo argues that the trial court erred when it permitted the prosecutor to ask him questions about whether he believed the victims were lying and conspiring against him. He also argues that the prosecutor committed misconduct by asking the questions.
a. Background
After Camarillo testified that victim1 truthfully recounted some of the details of the camping trip, the prosecutor asked Camarillo, "So when [victim1] says that you were down by the lake sometime between 12:30 and 6 or 7, she's not telling the truth." Camarillo answered no. The prosecutor then asked, "I'm curious to know why she would lie. Do you have any reason why?" Defense counsel objected to the question, which the trial court sustained.
Later, after Camarillo testified that victim1 and victim3 accurately described the layout of his Morgan Hill house, the prosecutor asked, "Okay. The only thing they are not telling the truth, I'm assuming, is, even though everything they are saying is true about how [the house] was set up, they are lying when it comes to you molesting them." Camarillo answered yes.
The prosecutor asked if victim2 accurately testified about her birthday party. The prosecutor followed up by asking, "So just so I'm clear, every bit of [victim2]'s testimony, she told the truth except for the part where she says you rubbed her stomach down to the top of her vaginal area." Camarillo responded, "There's cameras that will show that."
Afterwards, the prosecutor asked Camarillo if victim3 was being truthful in her testimony. The prosecutor asked, "So my question to you, Mr. Camarillo, is that her testimony is entirely accurate and true, except when she testified that you got on top of her and grinded your pelvis between her butt cheeks. That part is not true, according to you. 'Yes' or 'no'?" Camarillo answered, "That is not true." The prosecutor then asked, "The only thing she's not telling the truth about is when you tried to molest her when you grabbed her, trying to grab her breast. That she's not telling the truth. Correct?" Camarillo replied, "No, she's not." Later, the prosecutor asked, "With the exception of her testimony that you came up behind her, grabbed her hand, pulled it around her back and made her touch your erect penis, everything else she testified to was the truth. 'Yes' or 'no?' " Camarillo again said that victim3's statements were not true. The prosecutor asked if victim3 was telling the truth about how Camarillo rubbed her vagina. Camarillo responded that the allegation was not true.
Finally, the prosecutor asked, "It's your testimony that [victim3's] testimony about her taking the shower in your house, you coming in . . . exposing your naked body, that was completely a lie." Defense counsel objected, stating that the question was "argumentative as to 'lie.' " The trial court overruled the objection, and Camarillo answered that victim3 lied about the incident.
During recross-examination, the prosecutor asked Camarillo if he believed in conspiracy theories. Defense counsel objected, arguing that the question was "beyond the scope." Following an unreported sidebar conference, the trial court overruled the objection. The prosecutor then asked, "With all that being said, do you believe that [victim2], [victim1], and [victim3] by inference are conspiring against you?" Defense counsel objected on the ground of speculation, which the trial court overruled. The prosecutor then asked, "They had to have gotten together and gotten their stories straight." Camarillo responded yes. The prosecutor asked, "According to you, they are all lies. Completely made up. Right?" Camarillo answered yes. The prosecutor then asked, "So by definition, they've all had to conspire against you." Again, Camarillo responded yes.
The prosecutor summarized, "Mr. Camarillo, your answer is that the three girls, even though [victim1] and [victim2], according to your testimony, have no reason to have any negative beef against you, and, [victim3], you've heard her testimony, they've all gotten together to conspire against you, to get their stories straight over the course of five years and three different times in which they've given statements." Camarillo again answered yes.
b. Forfeiture of Claims of Evidentiary Error
Defense counsel made several objections to the prosecutor's questions about whether the victims were lying or conspiring against Camarillo. The Attorney General, however, argues that Camarillo's appellate arguments are forfeited because defense counsel's objections did not sufficiently apprise the trial court that he was objecting to all of the "were they lying" and conspiracy questions posed by the prosecutor.
We agree. During trial, Camarillo did not object to the majority of the prosecutor's "were they lying" questions. Moreover, the specific objections lodged in this case could not have alerted the trial court that Camarillo challenged the entire line of questioning. First, defense counsel made a generic objection with no stated grounds when the prosecutor asked Camarillo if he knew why victim1 would lie about being molested. Second, defense counsel objected to the prosecutor's use of the word "lie" when he asked Camarillo if it was a "complete lie" that he exposed himself to victim3 when she took a shower at his house. Lastly, defense counsel objected when the prosecutor asked Camarillo if he believed that victim2, victim1, and victim3 were conspiring against him, arguing that this question was beyond the scope of direct examination.
The record reflects that Camarillo did not object to the prosecutor's questions on the grounds that they were irrelevant and speculative, which are the grounds that he now raises on appeal. He also did not object to the questions on the basis that they were argumentative. Camarillo limited his sole "argumentative" objection to the prosecutor's decision to use the word "lie" during one of his questions. Thus, his "argumentative" objection could not have fairly apprised the trial court that he believed that the substance of the questions were argumentative. As a result, we find that Camarillo has forfeited his claims. (People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 318 [failure to object to " 'were they lying' " questions on grounds raised on appeal forfeits claim].)
c. Forfeiture of Prosecutorial Misconduct Claims
Camarillo also argues that the prosecutor committed misconduct when he asked Camarillo if the victims were lying and conspiring against him. Camarillo did not object to any of the prosecutor's questions on the basis that they constituted misconduct. Nor did he request an admonition. As a result, we find that his claims are forfeited. (Seumanu, supra, 61 Cal.4th at p. 1339.)
d. Ineffective Assistance of Counsel
To the extent that his appellate claims are forfeited, Camarillo argues that defense counsel rendered ineffective assistance. He argues that there can be no valid, strategic reason for his counsel's failure to make timely and specific objections to the prosecutor's "were they lying" questions. We review Camarillo's claim of ineffective assistance of counsel using the same standards outlined in the previous portion of our discussion, ante (part II.1.e). As we explain, we conclude that Camarillo's ineffective assistance of counsel claim fails because the prosecutor's "were they lying" questions were permissible, and to the extent the questions were improper, Camarillo cannot demonstrate prejudice.
We first address Camarillo's arguments addressing the prosecutor's "were they lying" questions. Camarillo primarily relies on People v. Zambrano (2004) 124 Cal.App.4th 228 (Zambrano). In Zambrano, two police officers testified that they contacted a woman at a truck stop parking lot about buying cocaine, and the woman brought them over to the defendant. (Id. at p. 233.) The officers testified that they put money on the bed of a truck, and the defendant handed cocaine over to the woman, who then handed the cocaine over to the officers. (Ibid.) At trial, the defendant testified that he worked at the truck stop parking lot and denied engaging in any drug transaction. (Ibid.) During cross-examination, the prosecutor repeatedly asked the defendant if the officers were lying when they testified. (Id. at pp. 234-235.) The prosecutor also asked the defendant if he wanted the jury to believe that the two officers were going to risk their jobs by lying at his trial. (Id. at p. 234.) Defense counsel objected to this question on the grounds of relevance and speculation, which the trial court overruled. (Ibid.) The defendant answered that he did not know whether the officers would lose their jobs for lying, but he did not have drugs that day and did not use drugs. (Ibid.)
On appeal, the Zambrano defendant argued that the prosecutor's "were they lying" questions constituted misconduct. (Zambrano, supra, 124 Cal.App.4th at pp. 239-240.) The Zambrano court observed that a lay witness's opinion about the veracity of another person's statement is generally inadmissible and irrelevant. (Id. at p. 239.) The purpose of cross-examination is to test the credibility, knowledge, and recollection of the witness and to elicit additional evidence. (Id. at p. 240.) "But a proper attack on a witness's credibility does not consist solely of berating the witness; it requires presenting or eliciting additional evidence which bears on the witness's credibility." (Ibid.)
Thus, the Zambrano court concluded that "the prosecutor's 'were they lying' questions were inadmissible because they were irrelevant. The questions did not clarify the defendant's prior testimony, because he had already testified that his recollection of the alleged drug transaction differed from the officers' in every material respect. Nor did the questions inquire into any facts or circumstances surrounding the defendant's testimony, or develop independent evidence which ran contrary to his testimony. The questions served no purpose other than to elicit defendant's inadmissible lay opinion concerning the officers' veracity [and] . . . merely forced defendant to opine, without foundation, that the officers were liars." (Zambrano, supra, 124 Cal.App.4th at pp. 240-241.) Thereafter, the Zambrano court concluded that the questions constituted misconduct, but the misconduct was harmless. (Id. at pp. 242-243.)
Zambrano should not be construed as categorically barring all "were they lying" questions. In People v. Chatman (2006) 38 Cal.4th 344 (Chatman), the California Supreme Court held that asking a defendant about another witness's veracity may be permissible in certain circumstances. (Id. at p. 382.) In Chatman, the defendant was charged with murder. (Id. at p. 353.) Two of the defendant's ex-girlfriends testified at trial, both stating that the defendant confessed that he stabbed the victim. (Id. at pp. 355-356.) The prosecutor asked the defendant if he believed one of his ex-girlfriends disliked him and whether he based his opinion on the fact that she was " 'willing to come out to California several times to lie about you.' " (Id. at p. 378.) The prosecutor then asked the defendant if something happened during his relationship with his other ex-girlfriend that caused her to think poorly of him and whether that might be why she lied about his confession on the stand. (Ibid.) On appeal, the defendant argued that the prosecutor's questions constituted misconduct. (Id. at p. 379.)
The Chatman court observed that "[i]f a defendant has no relevant personal knowledge of the events, or of a reason that a witness may be lying or mistaken, he might have no relevant testimony to provide" because testimony cannot be based on conjecture or speculation. (Chatman, supra, 38 Cal.4th at p. 382; Evid. Code, § 702.) As a result, this type of evidence would be inadmissible because it is irrelevant to the questions in dispute at trial. (Evid. Code, § 210.) On the other hand, "[a] defendant who is a percipient witness to the events at issue has personal knowledge whether other witnesses who describe those events are testifying truthfully and accurately. As a result, he might also be able to provide insight on whether witnesses whose testimony differs from his own are intentionally lying or merely mistaken. When, as here, the defendant knows the other witnesses well, he might know of reasons those witnesses might lie. Any of this testimony could be relevant to the credibility of both the defendant and the other witnesses." (Chatman, supra, at p. 382.)
In its decision, the Chatman court cited Zambrano with approval but also distinguished it. (Chatman, supra, 38 Cal.4th at p. 381.) The Chatman court observed that in Zambrano, the prosecutor's questions called for "irrelevant and speculative testimony" because the "defendant was testifying to a diametrically different set of circumstances from that recounted by the officers" that "could not have been attributed to mistake or faulty recall." (Ibid.) Moreover, the defendant, "a stranger to the officers, had no basis for insight into [the officers'] bias, interest, or motive to be untruthful. Had the prosecutor asked why they might lie, which she did not, it would have been apparent that any answer would have been speculative." (Ibid.) As a result, the Chatman court concluded that under the circumstances present in Zambrano, the prosecutor's questions "did not develop facts regarding the defendant's own testimony" and instead merely forced the defendant to opine, without basis, that the officers were liars. (Ibid.)
The Chatman court went on to explain that "courts should carefully scrutinize 'were they lying' questions in context. They should not be permitted when argumentative, or when designed to elicit testimony that is irrelevant or speculative. However, in its discretion, a court may permit such questions if the witness to whom they are addressed has personal knowledge that allows him to provide competent testimony that may legitimately assist the trier of fact in resolving credibility questions." (Chatman, supra, 38 Cal.4th at p. 384.)
In this case, the prosecutor's "were they lying" questions were akin to the questions found proper in Chatman. By choosing to testify, Camarillo placed his own credibility in dispute. And like in Chatman, Camarillo had personal knowledge of his interactions with victim2, victim1, and victim3, and of the events that they testified about. Furthermore, unlike in Zambrano, Camarillo personally knew victim1, victim2, and victim3 as family members. He therefore had insight into their supposed "bias, interest, or motive to be untruthful." (Chatman, supra, 38 Cal.4th at p. 381.) As a result, the prosecutor's questions elicited testimony that could assist the trier of fact in resolving key credibility questions, and Camarillo's defense counsel was not ineffective for failing to object to the series of "were they lying" questions.
We reach a different conclusion on the prosecutor's decision to ask Camarillo if he believed that victim1, victim2, and victim3 conspired together against him. This question was argumentative in nature and called for a speculative answer. "An argumentative question is a speech to the jury masquerading as a question. The questioner is not seeking to elicit relevant testimony. Often it is apparent that the questioner does not even expect an answer. The question may, indeed, be unanswerable." (Chatman, supra, 38 Cal.4th at p. 384.) Moreover, there "is a difference between asking a witness whether, in his opinion, another is lying and asking that witness whether he knows of a reason why another would be motivated to lie." (Id. at p. 381.) Asking Camarillo whether victim1, victim2, and victim3 conspired against him called for speculation and served no purpose other than "to berate [Camarillo] before the jury and to force him to call the [victims] liars in an attempt to inflame the . . . jury." (Zambrano, supra, 124 Cal.App.4th at p. 242.) We can conceive of no tactical reason why defense counsel chose not to object on the grounds that the question was argumentative, speculative, and irrelevant.
However, reversal for ineffective assistance of counsel is required only if Camarillo can demonstrate prejudice, which Camarillo has failed to do. The prosecutor's question about whether the victims engaged in a conspiracy against Camarillo was brief and was not particularly prejudicial. Camarillo had already testified that he believed that the victims were not being truthful, and he had earlier testified that he knew of no reason why two of the victims, victim1 and victim2, would dislike him. Thus, it is not reasonably probable that Camarillo would have received a more favorable result had his counsel objected. (Strickland, supra, 466 U.S. at p. 694.)
3. Guilt-assuming Hypotheticals
Camarillo argues that the trial court erred when it permitted the prosecutor to ask hypothetical questions that assumed that he was guilty of the charged crimes. Camarillo insists that the answers to these questions should have been excluded under Evidence Code section 352.
a. Background
Several character witnesses testified on Camarillo's behalf. When cross-examining these character witnesses, the prosecutor asked each of them whether their opinions of Camarillo's character would change, assuming he was guilty of the crimes charged in the case.
R.M., a family friend, testified that he would trust Camarillo with his children. The prosecutor asked on cross-examination, "What if I told you, assuming this is true, that the defendant has molested three girls, ages from 11 to 13, assuming that's true, would your opinion of him change or remain the same?" R.M. answered, "My opinion would be the same. I probably wouldn't believe it because I know him." The prosecutor then reiterated that R.M. should assume for the purposes of the question that defendant molested three girls. R.M. answered, "Yeah, I would. That's how much I trust the guy."
Next, when cross-examining R.G., Camarillo's cousin, the prosecutor asked, "Let's assume that these facts are true: That your cousin, the defendant, has molested three girls aged 11 through 13. He's rubbed their vagina. He's gotten on top and dry humped them. He's tried to expose his penis. He's groped his penis in front of them. Assuming that's true, would you still trust your three daughters with him?" R.G. responded, "Assuming if that is true?" The prosecutor responded, "True. It happened. It's true. It's a fact. You must accept that it's true. If those are true and you have that knowledge, would you then, therefore, trust your daughters around him?" R.G. answered that she would not trust her daughters around Camarillo if the allegations were true.
D.D., Camarillo's niece, testified that she trusted Camarillo. During cross-examination, the prosecutor asked D.D., "You don't want anything to happen to him?" D.D. responded no. The prosecutor then asked, "[D.D.], what if it were true that [Camarillo] molested three girls between the ages of 13 and 14. If that were true, would you still not want anything to happen to him?" D.D. answered, "Honestly? No. I mean . . . ." The prosecutor asked, "You love him?" D.D. answered, "Yeah." The prosecutor asked, "You don't want anything to happen to him?" Again, D.D. answered, "No." The prosecutor then stated, "No matter what. I appreciate that. Thank you so much."
M.G.C., Camarillo's niece, testified that she believed Camarillo was trustworthy. During cross-examination, the prosecutor asked, "[If] those accusations were true, if your children were teenagers, would you have them hang out with the defendant if those accusations were true?" M.G.C. answered, "Then I would not allow my kids to be around if they were true."
R.S., Camarillo's goddaughter, testified that she trusted Camarillo with her life. During cross-examination, the prosecutor asked R.S., "Let's just assume that the accusations against the defendant, [Camarillo], are true. Let's just assume that. . . . If it's true that which he's accused, would you still feel comfortable around him?" R.S. refused to accept the hypothetical, stating, "There is no hypothetical speaking, because my uncle, he would not do this." The prosecutor asked, "And you refuse to believe at all—you won't even entertain a hypothetical because you just simply refuse that it ever happened." R.S. responded, "No. Because I trust him." The prosecutor then asked, "Right. You trust him. And if he told you he didn't do anything, not saying he has. This is just a hypothetical. Okay? If outside—if he conveyed to you or if anyone conveyed to you it's not true, you're going to believe that. Right?" R.S. responded, "Hypothetically speaking, he's not convicted of this. He didn't do it. I know in my heart because, [Camarillo], I trust him with my life and he did not do this."
The prosecutor again tried to get R.S. to assume Camarillo's guilt, but she refused to entertain the hypothetical question. The prosecutor asked R.S., "So even if it were true, you'd still trust him and you'd still want to be with him. And, hypothetically, if you had kids, you'd still want to be around them." R.S. answered, "It is not true." Defense counsel then objected on the ground of vagueness, which the trial court sustained.
Finally, mother-in-law testified that she believed Camarillo was trustworthy. During cross-examination, the prosecutor asked mother-in-law, "Would anything change your opinion about Mr. Camarillo? What if, what if I told you hypothetically, let's just assume that the allegations against Mr. Camarillo by [victim1] and [victim2] and [victim3], let's just assume they are true. If they are true, would it change your mind about how you feel? Would you still think he was trustworthy?" Mother-in-law answered, "Yes, I would because he's related to my daughter. Yes." The prosecutor followed up by asking, "So the fact that he's married to your daughter. Nothing could change your mind because he's married to your daughter. You're always going to think he's trustworthy. Right?" Mother-in-law answered, "Yes."
b. Forfeiture of Claims of Evidentiary Error
Defense counsel did not object to any of the prosecutor's guilt-assuming hypotheticals on the grounds he now raises on appeal. Defense counsel solely objected on the ground of vagueness when the prosecutor asked R.S., Camarillo's goddaughter, if she would still want to be around Camarillo, assuming that she had children and assuming that the allegations against him were true.
Camarillo acknowledges that his counsel did not object to the questions at issue but insists that because these questions violate his due process rights, his arguments may be raised for the first time on appeal. He also argues that given the constitutional implications of the questions, this court should exercise its discretion to review his claims despite his counsel's forfeiture.
We decline to exercise our discretion to examine the merits of Camarillo's claims. As we previously explained, failure to object to the admission of evidence on constitutional grounds forfeits the issue on appeal. (See People v. Benson, supra, 52 Cal.3d at p. 786, fn. 7.) Camarillo has forfeited his claims of error by failing to make timely and specific objections to the challenged evidence below. (People v. Demetrulias, supra, 39 Cal.4th at p. 20.)
c. Forfeiture of Prosecutorial Misconduct Claims
Camarillo also argues that the prosecutor committed misconduct when he asked the defense's character witnesses guilt-assuming hypotheticals. Camarillo, however, did not object that the prosecutor's questions constituted misconduct. Nor did he request an admonition. As a result, his claims are forfeited. (Seumanu, supra, 61 Cal.4th at p. 1339.)
d. Ineffective Assistance of Counsel
Alternatively, Camarillo argues that defense counsel rendered ineffective assistance by failing to object to any of the prosecutor's guilt-assuming hypotheticals. We disagree. We conclude that even assuming defense counsel was deficient, Camarillo has failed to demonstrate prejudice. (Strickland, supra, 466 U.S. at pp. 688, 694.)
Federal courts have largely concluded that asking witnesses guilt-assuming hypotheticals is improper. (See U.S. v. Shwayder (9th Cir. 2002) 312 F.3d 1109, 1121 ["use of guilt assuming hypotheticals undermines the presumption of innocence and thus violates a defendant's right to due process"]; U.S. v. Guzman (11th Cir. 1999) 167 F.3d 1350, 1354 ["district court should not have allowed the government to ask [the defendant's] character witness to assume that she was guilty of the instant offense"]; U.S. v. Woods (4th Cir. 2013) 710 F.3d 195, 207 [" 'questions put to defense character witnesses that assume[] a defendant's guilt of the crime for which he was charged [are] improper' "].)
These types of questions, however, do not always generate prejudicial answers. In U.S. v. Guzman, supra, 167 F.3d 1350, the Eleventh Circuit noted that "[t]he harm in allowing the use of this type of improper [guilt-assuming] hypothetical lies in the effect of having the defendant's own character witness assume that the defendant is guilty." (Id. at p. 1353.) In Guzman, the character witness refused to assume the defendant's guilt. Thus, Guzman observed that "[t]he government's improper question backfired, and, arguably, [the defendant's] case was strengthened by [the character witness's] response." (Ibid.) Like in Guzman, R.S., Camarillo's goddaughter, refused to accept the hypothetical posed by the prosecutor, thereby strengthening Camarillo's case.
In People v. Qui Mei Lee (1975) 48 Cal.App.3d 516 (Qui Mei Lee), a character witness testified that the defendant was honest. (Id. at p. 524.) During cross-examination, the prosecutor asked the witness if she had heard of the allegations that were made against the defendant. (Ibid.) The Third Appellate District concluded that the cross-examination was proper. (Id. at p. 526.) The appellate court noted that "the witness' testimony [was] delivered in the present tense. . . . Whatever [the defendant's] reputation might have been before the charge, after the charge it is at least dubious. Thus where the character witness nonetheless states under oath that such defendant's reputation for honesty is presently good, there is a strong suggestion (to say the least) that he is not a credible witness. And on cross-examination, such lack of credibility may be demonstrated by asking him whether he in fact has heard of the commission of the offense for which the defendant is on trial." (Id. at p. 527.)
In Camarillo's case, R.G., Camarillo's cousin, and M.G.C., Camarillo's niece, both testified that assuming the accusations were true, they would no longer trust Camarillo with their children. Unlike the situation described in Qui Mei Lee, R.G. and M.G.C.'s responses did not demonstrate a lack of credibility because both witnesses expressed a credible opinion that if the allegations were true, their opinion of Camarillo's character would change.
The responses made by R.M., D.D., and mother-in-law were less credible. R.M. said that he would still trust his daughter with Camarillo if the allegations were true. D.D., Camarillo's niece, responded that she did not want anything to happen to Camarillo even if the allegations were true. And mother-in-law testified that she would still find Camarillo trustworthy even if the allegations were true. However, there were other reasons to doubt these witness's impartiality. R.M. was friends with Camarillo, and D.D. and mother-in-law were closely related to him. Thus, the jury could have already found their testimony to be less credible because of their relationship with Camarillo. Moreover, given that the other character witnesses all gave credible responses to the prosecutor's guilt-assuming hypotheticals, we do not believe that this is a case where it is reasonably probable that absent their responses, Camarillo would have received a more favorable result. As a result, we find that Camarillo has not demonstrated prejudicial error under the Strickland standard.
4. Other Claims of Prosecutorial Misconduct
Camarillo argues that the prosecutor committed misconduct when he asked several argumentative questions during cross-examination. He further claims that the prosecutor committed misconduct during argument. We address each contention in turn.
a. Argumentative Questions
i. Forfeiture
On appeal, Camarillo argues that the prosecutor was argumentative during cross-examination when he asked Camarillo if he needed to be admonished and described Camarillo as chatty. Camarillo did not object to the prosecutor's questions on the basis that they were argumentative or that they constituted misconduct. Nor did he request an admonition. As a result, we find that his prosecutorial misconduct claims are forfeited. (Seumanu, supra, 61 Cal.4th at p. 1339.)
ii. Ineffective Assistance of Counsel
Alternatively, Camarillo argues that defense counsel rendered ineffective assistance by failing to object to the misconduct below. As we explain, we disagree. Some of the challenged questions did not constitute misconduct, and, even if we assume that some of the questions were argumentative, we do not believe that Camarillo can demonstrate that he was prejudiced by his counsel's failure to object.
First, Camarillo argues that the prosecutor committed misconduct by disparaging him during cross-examination.
When asking Camarillo about the voicemail he left for E2, the prosecutor asked, "Mr. Camarillo. I'm going to ask you one more time, and then it's going to appear that you don't want to answer and I'm going to move on. . . ."
Later, the prosecutor made the following remark after Camarillo gave an unsolicited response, "Mr. Camarillo, do I need to tell the judge to admonish you how this process works? Didn't he just admonish you five minutes ago?" Camarillo responded, "I apologize. I apologize."
At another point during cross-examination, the prosecutor asked Camarillo, "Mr. Camarillo, are you having difficulty understanding my questions?" Camarillo answered, "I want to get your questions really understood before I answer your questions, sir." The prosecutor asked, "Okay. So when I ask you a question, I just want simple answers. Some questions only require 'yes' or 'no.' "
Sometime later, Camarillo asked the prosecutor a question and was admonished by the court not to do so. Afterwards, the prosecutor asked Camarillo, "Are you nervous?" Camarillo responded, "No. Are you?" The prosecutor answered, "You're sure chatty." Camarillo replied, "[y]ou are too." The prosecutor then remarked, "You're very chatty." Camarillo responded, "I need to answer your questions."
Subsequently, the prosecutor cross-examined Camarillo about victim3's troubles at school and her issues with Camarillo's family. The prosecutor asked, "Is it then you made the decision, or you and your wife made the decision, that [victim3] was to never come to your house afterwards? And then you said that she was getting in trouble with family. She was getting in trouble at school. Remember you said all that?" Camarillo replied, "Hm-hmm." The prosecutor asked, "And that's why? Do you think that maybe she was acting out, getting in trouble at school and family because you were molesting her?" Camarillo responded, "No sir, because I would never touch her like that. Otherwise, why . . . would she keep coming around? Just like the earthquakes that she has delay? That shock? Yes, how do I know? Because my nieces have been molested. I know that." The prosecutor then asked, "So because, so because she was acting out is not because you were molesting her. 'Yes' or 'no.' " Camarillo replied, "I would never touch her inappropriately in any type, form, or shape anyway." The prosecutor asked, "So that couldn't be the reason. Right?" Camarillo responded, "No. I would never touch her wrong. I would never put my hands on anybody. My kids? Yes, I've spanked them. My kids? Yes, I've hugged them."
We disagree with Camarillo's characterization of these statements as misconduct. Although some of these comments may have been sarcastic and disparaging toward Camarillo, the prosecutor did not otherwise state or imply the existence of facts not otherwise before the jury. (See People v. Price (1991) 1 Cal.4th 324, 484 [no prejudice from prosecutor's five argumentative questions because the questions did not state or imply evidence not otherwise before jury and the arguments would not have been improper if made to the jury at an appropriate time].)
Next, Camarillo argues that by asking Camarillo if he knew why victim3 was acting out at school, the prosecutor could not have been seeking to elicit relevant testimony. Rather, Camarillo insists that the prosecutor intended to suggest to the jury that victim3 was misbehaving because Camarillo had molested her. Even assuming that this question was argumentative, prosecutors are " ' " 'given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom.' " ' " (Hill, supra, 17 Cal.4th at p. 819.) Camarillo himself testified that victim3 was always getting into trouble, and it is reasonable to infer that victim3's misbehaviors might have been attributable to being molested. Thus, the argument suggested in the question would not have been improper had it been made at an appropriate time. Furthermore, the jury was instructed that the prosecutor's questions were not evidence. Absent evidence to the contrary, we presume that the jury followed these instructions and ignored the prosecutor's allegedly inappropriate remarks and questions.
Under these circumstances, Camarillo does not demonstrate that there is a reasonable probability that he would have received a more favorable result had defense counsel objected to the challenged statements. (Strickland, supra, 466 U.S. at p. 694.)
b. Misconduct During Closing Argument
i. Forfeiture
Next, Camarillo argues that the prosecutor committed misconduct numerous times during argument by diluting and shifting the burden of proof, characterizing his decision to testify as an act as narcissism, and misstating the law and his defense. Again, Camarillo did not object to any of the prosecutor's statements during closing argument or rebuttal. Nor did he request an admonition. As a result, his claims are forfeited. (Seumanu, supra, 61 Cal.4th at p. 1339.)
Given our conclusion, we need not address Camarillo's claim that the misconduct implicated his due process rights and was prejudicial.
ii. Ineffective Assistance of Counsel
Camarillo argues that defense trial counsel was ineffective because he failed to object to the prosecutor's misconduct below. We address each claim separately and explain why we reject them.
First, Camarillo argues that the prosecutor improperly diluted and shifted the burden of proof. During closing argument, the prosecutor stated, "I don't have to prove anything beyond a possible doubt. Everything is open to possibility. It has to be reasonable. If there's no reasonable alternative for his actions, he's guilty. Consider the evidence before you." During rebuttal, the prosecutor also argued, "[Defense counsel] is in an unenviable position because he has to explain away every single event to you in order for you to believe that the defendant is not guilty. [¶] Occam's Razor is a scientific term. It's the adage of all things being considered, usually the easier explanation, the easiest explanation is the right one. [¶] [Defense counsel] has the uphill battle of having to explain away Dr. Carmichael. He has to explain away [E2]. He has to explain away [victim2]. He has to explain away [victim1]. He has to explain away [victim3]. He has to explain away the defendant's own voice in a voicemail, something he really didn't talk about."
It is improper for the prosecutor to misstate the law, but we do not believe the prosecutor did so in this instance. When commenting that defense counsel was in the position of having to "explain away every single event," the prosecutor did not state that Camarillo was required to provide affirmative evidence of his innocence. In People v. Weaver (2012) 53 Cal.4th 1056, the California Supreme Court held that it was not misconduct for a prosecutor "to observe that defense counsel had failed to explain how this evidence could be reconciled with the conclusion that anyone other than defendant had committed the charged offenses." (Id. at p. 1077.) In Camarillo's case, the prosecutor merely argued that the defense did not sufficiently explain how the evidence did not lead to a conclusion that Camarillo was guilty of the charged offenses.
Additionally, even if we assume that the prosecutor's comments improperly diluted and shifted the burden of proof, the jury was given the following instruction by the trial court: "You must follow the law as I explain it to you, even if you disagree with it. If you believe that the attorneys' comments on the law in their closing arguments conflict with my instructions, you must follow my instructions." The trial court also instructed the jury with the following instruction: "A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt unless I tell you otherwise. [¶] Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt."
Here, the jury was correctly instructed that the People bore the burden to prove Camarillo's guilt beyond a reasonable doubt, and we presume that the jury followed the trial court's instructions. (People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17.) As a result, Camarillo cannot demonstrate that he was prejudiced by his counsel's alleged omissions. (Strickland, supra, 466 U.S. at pp. 688, 694.)
Second, the prosecutor commented during closing argument about Camarillo's decision to testify on his own behalf. The prosecutor stated, "Let's get to the defendant, himself. He could have sat there and said nothing. That was his right. No. He couldn't help it. Narcissi[s]m. He was going to get up and come at us with a story that he had to make up." Camarillo argues that this statement inappropriately commented on the exercise of his constitutional right to testify on his own behalf and resorted to unwarranted name-calling.
The prosecutor, however, is entitled to comment on his opinion of Camarillo's demeanor as a witness. In People v. Edelbacher (1989) 47 Cal.3d 983, the California Supreme Court determined that it was not misconduct for the prosecutor to refer to the defendant as a " 'contract killer,' a 'snake in the jungle,' 'slick,' 'tricky,' a 'pathological liar,' and 'one of the greatest liars in the history of Fresno County.' " (Id. at p. 1030.) The Edelbacher court concluded that "[r]eferring to the testimony and out-of-court statements of a defendant as 'lies' is an acceptable practice so long as the prosecutor argues inferences based on evidence rather than the prosecutor's personal belief resulting from personal experience or from evidence outside the record." (Ibid.) The Edelbacher court also held that it was not misconduct for the prosecutor to "[c]omment on a defendant's demeanor as a witness." (Ibid.) Like the prosecutor in Edelbacher, the prosecutor's remarks in Camarillo's case, which conveyed his belief that Camarillo was lying and was narcissistic, were permissible observations about the veracity of Camarillo's testimony and his demeanor as a witness.
Moreover, even assuming that the comments about Camarillo's decision to testify constituted misconduct, Camarillo cannot demonstrate that he was prejudiced. The reference to Camarillo's decision to testify was brief, and in large part the prosecutor focused his argument on his belief that Camarillo was not a credible witness.
Third, during closing argument, the prosecutor made the following statements about the relevance of the testimonies provided by the defense's character witnesses: "Since it's fresh in my head, [defense counsel's] last 15 to 20 minutes he spent trying to appeal to your emotion, to get you to focus that Mr. Camarillo, the defendant, is a great guy, a family man. He wants to put that emotion in your head so that you'd be reluctant to convict him. [¶] The fact of the matter is, you're not here, as we said earlier, to judge whether the defendant is a good guy, to determine whether or not you have beer with him. That's not your role. Your role is to judge the facts. You're fact finders devoid of emotion. The facts that you heard on the witness stand. Do they prove beyond a reasonable doubt that a crime was committed and that the defendant committed them, not to judge whether or not you like him or whether he's a good guy."
Camarillo argues that under Evidence Code section 1102, subdivision (a), a criminal defendant can introduce evidence of his own good character "to prove his conduct in conformity with such character or trait of character." Thus, Camarillo characterizes evidence of his good character as plainly relevant and admissible to establish his innocence, and the prosecutor's comments to the contrary constituted misconduct. The prosecutor, however, did not argue that the jury should disregard Camarillo's character evidence. Instead, the prosecutor accurately pointed out that the jury's focus on Camarillo's character should not be on whether he was sympathetic or whether he was someone that they would want to be friends with. Camarillo's positive personality traits were not determinative of Camarillo's guilt or innocence. Considered in context, the challenged statements do not constitute misconduct.
Furthermore, defense counsel may have had a tactical reason not to object to the prosecutor's statement. He might have believed that objecting to the statements would further highlight the prosecutor's questionable statements to the jury. (People v. Gurule (2002) 28 Cal.4th 557, 610.) He might have also believed that his own closing argument accurately summarized Camarillo's defense, and no objection was necessary. As a result, Camarillo does not demonstrate defense counsel was ineffective.
5. Cumulative Error
Camarillo argues that to the extent any of his alleged errors are not individually prejudicial, the cumulative effect of the errors requires reversal of the judgment. (Hill, supra, 17 Cal.4th p. 844.) We have considered each of Camarillo's arguments and have either concluded that his counsel did not render ineffective assistance by failing to object to the evidence or misconduct, or, even assuming an objection should have been made, any alleged error was individually harmless. We further conclude that even if we aggregate the prejudicial impacts of the errors in this case, reversal of Camarillo's convictions is not required.
6. Ineffective Assistance of Counsel and Right to Counsel of Choice
Next, Camarillo argues that the trial court constructively denied him his right to counsel and his right to counsel of choice during his sentencing hearing.
a. Background
Camarillo was represented during his trial by Attorney Eric Dumars. After the jury reached a verdict, Camarillo retained the law firm of Rien, Adams & Cox, LLP (Rien, Adams & Cox) to file a motion for a new trial. Rien, Adams & Cox filed a notice of association of counsel with the trial court, indicating that it had been retained for the limited purpose of filing a motion for a new trial. The notice stated that Dumars stood "ready to conclude his work on behalf of Mr. Camarillo on issues of judgment and sentencing should the court deny the Motion for New Trial." The notice also reiterated that Rien, Adams & Cox sought "association in the case, rather than full substitution." Melissa Adams and Joseph Cox, attorneys with Rien, Adams & Cox, filed a motion for a new trial.
On February 23, 2018, the trial court held a combined hearing on the new trial motion and sentencing. Before the hearing, the trial court held an unreported chambers conference. According to a settled statement prepared by the trial court, the following happened during the conference: "[C]ounsel for defendant, Joseph Cox, informed the court that his firm had only been retained for purposes of filing a motion for a new trial, not for sentencing. In response, the court indicated that because appellant was represented by counsel, it intended to go forward with sentencing that day."
After the trial court denied the new trial motion, Cox reminded the trial court: "As the Court will recall, we were granted to come in on the case for association of counsel to file a motion for a new trial. Mr. Dumars is still the attorney of record. We did send two letters to him, one on January 2nd and one on January 19th reminding him to appear, and it does not appear he is present." The trial court responded, "Are we going to proceed since you are associated counsel? Mr. Camarillo is represented at this hearing." Thereafter, the prosecutor introduced E3, who gave a victim impact statement. The trial court then asked, "Is there any legal cause why sentence should not now be pronounced, Mr. Cox?" Cox replied, "No, Your Honor."
At the end of the hearing, after the trial court sentenced Camarillo, Cox stated, "Your Honor, as far as the probation report goes, I know I mentioned to the Court and Counsel in Chambers that I did not receive one, but, apparently, one was sent to Mr. Dumars back in August. And I read it this morning for the first time, and I noticed that there were no character reference letters received on behalf of Mr. Camarillo, but I think in the court file, I remember when I appeared at one point, that the Court did receive—" The trial court interjected, "I did. From Mr. Dumars." Cox asked that the character reference letters be made part of the report.
b. Ineffective Assistance of Counsel
Camarillo argues that the trial court's decision to proceed with sentencing when he was represented by Cox, not Dumars, constructively deprived him of his constitutional right to counsel. He alternatively argues that Cox rendered ineffective assistance of counsel under the standard set forth in Strickland, supra, 466 U.S. 668.
First, Camarillo claims that he was constructively deprived of his right to effective counsel even though he was represented at the sentencing hearing. In support of his argument, he cites to United States v. Cronic (1984) 466 U.S. 648 (Cronic) and Bell v. Cone (2002) 535 U.S. 685 (Bell).
In Cronic, the United States Supreme Court considered whether the appellate court properly reversed the defendant's conviction because he was deprived of his Sixth Amendment right to assistance of counsel. (Cronic, supra, 466 U.S. at p. 650.) The Cronic court noted that the Sixth Amendment provides that criminal defendants must have " 'Assistance,' which is to be 'for [the accused's] defense.' " (Id. at p. 654.) In other words, if no actual assistance is provided by counsel, the Sixth Amendment has been violated. (Ibid.) Thus, criminal defendants are entitled to " 'a reasonably competent attorney,' [citation], whose advice is 'within the range of competence demanded of attorneys in criminal cases.' " (Id. at p. 655.) Cronic concluded that if there is a "complete denial of counsel," if "counsel entirely fails to subject the prosecution's case to meaningful adversarial testing," or if it is unlikely that fully competent counsel can render effective assistance, "then there has been a denial of Sixth Amendment rights that makes the adversary process itself presumptively unreliable" and "[n]o specific showing of prejudice [is] required." (Id. at p. 659.) In a footnote, Cronic observed that it had "uniformly found constitutional error without any showing of prejudice when counsel was either totally absent, or prevented from assisting the accused during a critical stage of the proceeding." (Id. at p. 659, fn. 25.)
Strickland, supra, 466 U.S. 668 was decided on the same day as Cronic, supra, 466 U.S. 648. As we have described in preceding portions of our opinion, the United States Supreme Court in Strickland concluded that a two-part test applied for evaluating claims that a counsel's representation was ineffective and required reversal of the judgment—a defendant must establish both that his counsel's performance was deficient and that he suffered prejudice. (Strickland, supra, at p. 687.) The deficient performance component of an ineffective assistance of counsel claim requires a showing that "counsel's representation fell below an objective standard of reasonableness" "under prevailing professional norms." (Id. at p. 688.) With respect to prejudice, a defendant must show "there is a reasonable probability"—meaning "a probability sufficient to undermine confidence in the outcome"—"that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Id. at p. 694.)
The distinction between Cronic and Strickland was discussed in Bell. In Bell, the defense attorney in a murder case did not present mitigating evidence and waived closing argument during the sentencing phase, effectively preventing the lead prosecutor, "who by all accounts was an extremely effective advocate," from making a rebuttal argument. (Bell, supra, 535 U.S. at p. 692.) After the jury found the existence of aggravating factors, the defendant petitioned for postconviction relief, arguing that defense counsel rendered ineffective assistance. (Ibid.) In his petition, the defendant argued that the standard set forth in Cronic, where prejudice is presumed in certain limited circumstances, not Strickland, governed his claim that his counsel rendered ineffective assistance. (Id. at pp. 694-695.) The Bell court ultimately concluded that the principles articulated in Strickland, not Cronic, applied because defense counsel's failure to adduce mitigating evidence and waiver of closing argument were "plainly of the same ilk as other specific attorney errors we have held subject to Strickland's performance and prejudice components." (Bell, supra, at pp. 697-698.) After examining defense counsel's actions under Strickland, the Bell court determined that it was not unreasonable to conclude that under Strickland, defense counsel was not ineffective. (Bell, supra, at p. 702.)
We begin our analysis by examining whether Camarillo's Sixth Amendment right to effective assistance of counsel was violated during his sentencing hearing, and if his counsel's actions fell within the narrow exceptions described in Cronic, where prejudice is presumed, or whether his counsel's actions must be examined under the two-step test articulated in Strickland.
First, we conclude that the narrow circumstances described in Cronic are not present in this case. (Compare In re Avena (1996) 12 Cal.4th 694, 727 [Cronic inapplicable in case where attorney waived opening argument at guilt phase, called no defense witnesses, and did not address two murder charges or two special circumstances allegations during a brief closing argument] with People v. McKenzie (1983) 34 Cal.3d 616 [pre-Cronic decision where conviction was reversed after counsel expressly refused to participate in trial and remained mute during proceedings], disapproved of on different grounds as stated in People v. Crayton (2002) 28 Cal.4th 346, 365.) Camarillo was not completely denied counsel at his sentencing hearing. Like the attorney in Bell, who waived closing argument and did not present mitigating evidence, Cox did not utterly fail to subject the case to meaningful adversarial testing, and this was not a situation where even competent counsel could not render assistance. (Bell, supra, 535 U.S. at p. 697.)
Cox did not make arguments at the sentencing hearing, but we cannot conclude on this record that this decision was not tactical. Aside from introducing one victim impact statement, the prosecutor in this case did not make any arguments during sentencing. Cox could have reasonably concluded that making his own argument, which might have invited a rebuttal from the prosecutor, was not in his client's best interests. It is also possible that Cox believed that any argument would have been superfluous, as the trial court already possessed ameliorative evidence such as the letters of support that Dumars had previously submitted.
We also conclude that Camarillo has not met his burden to demonstrate that Cox rendered ineffective assistance of counsel under the Strickland standard. We acknowledge that Cox told the trial court during an unreported conference that his firm had been retained only to prepare the new trial motion, not for sentencing. However, there is no indication that Cox informed the trial court that he was unprepared to represent Camarillo during sentencing or that he was unwilling to do so. The record does not reflect that Cox objected to the trial court's decision to continue with the sentencing hearing in Dumars's absence or that he requested a continuance or a withdrawal. During the sentencing hearing, the trial court asked Cox, "Are we going to proceed since you are associated counsel? Mr. Camarillo is represented at this hearing." Cox did not respond. Later, the trial court asked Cox, "Is there any legal cause why sentence should not now be pronounced, Mr. Cox?" Cox replied, "No, Your Honor."
In sum, based on the record that we have on appeal, there is no indication that Cox was fully unprepared to represent Camarillo during sentencing or that his decision not to present argument was not tactical. We do not reverse a conviction for ineffective assistance of counsel on direct appeal unless the record affirmatively demonstrates that counsel had no rational, tactical purpose for his acts or omissions, counsel was asked for an explanation but did not provide one, or if there can be no satisfactory explanation. (People v. Mai (2013) 57 Cal.4th 986, 1009.) These circumstances are not present in Camarillo's case.
c. Counsel of Choice
Camarillo further argues that by proceeding with sentencing while he was represented by Cox, the trial court deprived him of his counsel of choice.
Under the Sixth Amendment, a criminal defendant has the right to the counsel of his or her choice. (United States v. Gonzalez-Lopez (2006) 548 U.S. 140, 144 (Gonzalez-Lopez).) "The right to the effective assistance of counsel 'encompasses the right to retain counsel of one's own choosing. [Citations.]' [Citation.] Underlying this right is the premise that 'chosen representation is the preferred representation. Defendant's confidence in his lawyer is vital to his defense. His right to decide for himself who best can conduct the case must be respected wherever feasible.' " (People v. Courts (1985) 37 Cal.3d 784, 789.)
The Sixth Amendment right to the counsel of a defendant's choice is not absolute and can be abrogated to "[e]nsur[e] the ethical and orderly administration of justice." (U.S. v. Ries (9th Cir. 1996) 100 F.3d 1469, 1471.) Trial courts also have "wide latitude in balancing the right to counsel of choice against the needs of fairness, [citation], and against the demands of its calendar." (Gonzalez-Lopez, supra, 548 U.S. at p. 152.)
The Attorney General argues that because the right to counsel of choice is not absolute, seven months had transpired between the end of trial and the sentencing hearing, and victim1 and victim2's mother was present at the sentencing hearing to provide a victim impact statement, the trial court could have reasonably decided to proceed with sentencing despite Dumars's absence in the interest of judicial economy. Thus, the Attorney General claims that Camarillo was not wrongfully deprived of his counsel of choice.
We agree with the Attorney General's conclusion but for different reasons. The trial court in this case was never asked to weigh Camarillo's right to counsel of his choice against concerns over the court's calendar or the orderly administration of justice. Cases that have concluded that a criminal defendant was deprived of his counsel of choice have typically involved criminal defendants who affirmatively requested a continuation to permit preferred counsel to take on the case or affirmatively requested that counsel be substituted with different counsel. (See People v. Crovedi (1966) 65 Cal.2d 199, 202 [trial court's denial of seven-week continuance to permit retained counsel to recover from heart attack denied the defendant due process of law]; People v. Courts, supra, 37 Cal.3d 784 [trial court's denial of defendant's request for substitution of attorneys and for a continuance required reversal of the judgment].)
At the sentencing hearing, Cox informed the trial court that Camarillo continued to retain Dumars for sentencing matters. Camarillo, however, did not object when the trial court sentenced him despite Dumars's absence and did not object to Cox's continued representation during the sentencing hearing. If Camarillo did not want Cox to represent him at the sentencing hearing, he could have notified the trial court, objected to Cox's representation, or requested a continuance or a substitution of attorney. No such objection or request appears on the record, and, absent evidence to the contrary, we infer from Camarillo's silence that he impliedly acquiesced to Cox's continued representation during the sentencing hearing.
Under these circumstances, Camarillo has not demonstrated that he was deprived of his right to his counsel of choice.
7. School Records
Before trial, defense counsel subpoenaed victim3's school records. The trial court reviewed the records and issued a sealed order finding none of the records to be discoverable. On appeal, Camarillo asks that this court conduct an independent review of the school records to determine whether any material should have been disclosed to the defense. The Attorney General does not oppose this request.
"It is well settled that the government has the obligation to turn over evidence in its possession that is favorable to the accused and material to guilt or punishment." (Pennsylvania v. Ritchie (1987) 480 U.S. 39, 57.) "Although courts have used different terminologies to define 'materiality,' a majority of [the Supreme Court] has agreed, '[e]vidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A "reasonable probability" is a probability sufficient to undermine confidence in the outcome.' " (Ibid.) We review the trial court's discovery ruling for an abuse of discretion. (Hill v. Superior Court (1974) 10 Cal.3d 812, 816.)
We have reviewed victim3's school records and determine that the trial court reasonably concluded that there was no evidence that would be material to Camarillo's defense. Thus, we find that the trial court did not err by declining to disclose any of the records.
DISPOSITION
The judgment is affirmed.
/s/_________
Premo, J. WE CONCUR: /s/_________
Greenwood, P.J. /s/_________
Elia, J.