Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County, Super.Ct.No. RIF129725, Dallas Holmes, Judge.
E. Thomas Dunn, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Pamela Ratner Sobeck and Jennifer A. Jadovitz, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI, J.
Defendant Javier Rivas Deharo was charged with inflicting corporal injury upon the mother of his child (Pen. Code, § 273.5, subd. (a), count 1), forcible penetration (§ 289, subd. (a)(1), count 2), oral copulation by force (§ 288a, subd. (c)(2), count 3), and kidnapping (§ 209, subd. (b)(1), count 4). The jury found defendant guilty on all counts.
The victim is the mother of defendant’s daughter.
All further statutory references will be to the Penal Code unless otherwise indicated.
Relevant here, counts 2 and 3 alleged that defendant kidnapped the victim and the movement of the victim substantially increased the risk of harm to the victim over and above that level of risk necessarily inherent in the underlying offense, within the meaning of section 667.61, subdivision (d)(2). The jury found these allegations to be true.
Count 4 alleged an aggravated kidnapping under section 209, subdivision (b)(1). Defendant’s conviction under this section necessarily required the jury to have found that defendant’s movement of the victim increased the risk of harm to the victim over and above that necessarily present in the underlying offense. (§ 209, subd. (b)(2).)
The court sentenced defendant to the lower term of three years on counts 1, 2, and 3, to run concurrently with the sentence on the count 3 enhancement. The court designated count 3 as the principal term, and it imposed an indeterminate sentence on the count 3 enhancement of 25 years to life. Defendant was sentenced to life with the possibility of parole on count 4, but the sentence was stayed pursuant to section 654. Sentence on the count 2 enhancement was also stayed pursuant to section 654.
Defendant appeals, contending that the evidence was insufficient to support the jury’s true finding on the two 667.61, subdivision (d)(2), enhancements, and the aggravated kidnapping charged in count 4. More specifically, he contends that the evidence does not show that the movement of the victim substantially increased the risk of harm to her over the risk of harm inherent in the underlying offenses. Defendant’s second argument is that the performance of his trial counsel was constitutionally ineffective.
We focus on the facts relevant to defendant’s argument under sections 667.61, subdivision (d)(2), and 209, subdivision (b)(2).
Three witnesses testified at the trial: the victim, the police officer who interviewed the victim and defendant shortly after the crime, and a sexual assault nurse examiner. The parties also stipulated to the results of DNA testing.
On April 17, 2006, the victim was living with her daughter, then age two, in the home of defendant’s parents. Defendant and his brother also lived in the home.
Defendant awoke the victim at 3:30 a.m. on April 17, 2006. He was upset and accused her of having sex with his brother. When the victim and her daughter went into the bathroom, defendant followed and ripped the victim’s underwear off. He placed it in his pocket and it was later found there by the police officer, thus tending to support the victim’s credibility.
The victim denied having any sexual relationship with defendant’s brother and testified, “[w]e barely got along.”
Defendant told the victim that he had to go to work. The victim drove him to work at a warehouse about an hour earlier than usual. The victim’s daughter was in the back seat of the car. When they arrived at the warehouse, there were cars in the parking lot but no people outside. The victim told defendant to get out of the car and go to work. Defendant got out of the car but came around to the driver’s side. He grabbed the victim by the hair and tried to pull her out of the car. They began fighting and defendant eventually pushed the victim into the passenger’s seat and drove away.
Defendant drove the victim to the parking lot of another warehouse about two blocks away. He backed the car into a parking space near some bushes. He forcibly removed her from the car and pushed her down onto a sidewalk at the back of the car. The victim testified that defendant grabbed her by both arms, scratching them. Defendant then unbuttoned her jeans and inserted his fingers into her vagina.
The sexual assault nurse subsequently took pictures of a bruise on the victim’s right arm, thus tending to corroborate this portion of the victim’s testimony. Other pictures of her injuries were admitted into evidence.
After the attack, defendant drove the victim to a residential neighborhood about two miles away. They were still arguing. Defendant parked the car and went to the passenger door. He opened it and forced her to orally copulate him. He ejaculated on her pants and the parties subsequently stipulated that DNA analysis established the semen on the pants was from defendant. The stipulation thus tended to confirm the victim’s testimony about this incident.
Defendant then drove the victim back to his work. The entire episode lasted from about 5:30 a.m. to 7:00 a.m. After dropping defendant at work, the victim called police.
Officer Marquez, from the Corona Police Department, noticed some injuries on the victim. He took a statement from her and then contacted defendant and took a statement from him. Defendant denied any sexual activity with the victim that morning.
The sexual assault nurse examined the victim for two hours. She found a scratch on the victim’s left hip and a small bruise on her right arm. She did not find any evidence of vaginal trauma.
The defense rested without presenting any testimony. The jury then found defendant guilty on all charges.
DISCUSSION
A. Sufficiency of the Evidence to Prove That Movement of the Victim Substantially Increased the Risk of Harm to the Victim.
Persons convicted of offenses defined in section 667.61, subdivision (c), under one of the circumstances defined in section 667.61, subdivision (d), are punished by imprisonment in state prison for 25 years to life. The circumstances applicable here are the count 2 and count 3 convictions for violating sections 289, subdivision (a)(1), and 288a, subdivision (c)(2). (§ 667.61, subd. (c)(5) & (7).) The circumstances defined in section 667.61, subdivision (d), include the circumstance that “defendant kidnapped the victim of the present offense and the movement of the victim substantially increased the risk of harm to the victim over and above that level of risk necessarily inherent in the underlying offense in subdivision (c).” (§ 667.61, subd. (d)(2).)
Defendant contends that the evidence in this case was insufficient to support true findings on the section 667.61 enhancements for counts 2 and 3.
Similarly, in count 4, defendant was charged with aggravated kidnapping, as defined in section 209, subdivision (b)(1). Aggravated kidnapping is kidnapping for certain sex crimes, including those charged here, in which “the movement of the victim is beyond that merely incidental to the commission of, and increases the risk of harm to the victim over and above that necessarily present in, the intended underlying offense.” (§ 209, subd. (b)(2).) Aggravated kidnapping is punishable by imprisonment in state prison for life with the possibility of parole.
Defendant contends that the evidence was also insufficient to show an increase in the risk of harm to the victim under this section and that the aggravated kidnapping conviction in count 4 cannot stand.
In the leading case of People v. Rayford (1994) 9 Cal.4th 1 (Rayford), our Supreme Court reiterated the substantial evidence rule and applied it to uphold a jury determination that movement of the kidnapping victim increased the risk to the victim. (Id. at p. 23.) In that case, the victim was moved 105 feet from the parking lot of a closed store behind a block wall where the victim was not visible from the parking lot or an adjacent street. (Ibid.) The court found, “The jury could reasonably have concluded that [the victim’s] forcible movement for this distance and under these circumstances was not merely incidental to the attempted commission of rape, and substantially increased her risk of harm.” (Ibid.)
Section 209, subdivision (b)(2), is a subsequent codification of Rayford. (People v. Martinez (1999) 20 Cal.4th 225, 232, fn. 4 (Martinez).) In discussing the increase in the risk of harm standard, Rayford states: “The second prong of the Daniels test refers to whether the movement subjects the victim to a substantial increase in risk of harm above and beyond that inherent in robbery. [Citations.] This includes consideration of such factors as the decreased likelihood of detection, the danger inherent in a victim’s foreseeable attempts to escape, and the attacker’s enhanced opportunity to commit additional crimes. (See, e.g., People v. Lara [(1974)] 12 Cal.3d [903,] 908 & fn. 4 [examples of such risk of harm ‘include not only desperate attempts by the victim to extricate himself but also unforeseen intervention by third parties’]; In re Earley [(1975)] 14 Cal.3d [122,] 132 [‘asportation gave rise to dangers, not inherent in robbery, that an auto accident might occur or that the victim might attempt to escape from the moving car or be pushed therefrom by [defendant]’]; cf. People v. Caudillo (1978) 21 Cal.3d 562, 574 . . . [aggravated kidnapping includes review of such factors as ‘the defendant’s motivation to escape detection’ and ‘the possible enhancement of danger to the victim resulting from the movement.’].) The fact that these dangers do not in fact materialize does not, of course, mean that the risk of harm was not increased. [Citations.]” (Rayford, supra,9 Cal.4th at pp. 13-14.) These standards were reaffirmed in Martinez, supra,20 Cal.4th at page 233.
People v. Daniels (1969) 71 Cal.2d 1119.
Defendant contends that there is a lack of substantial evidence of an increased risk of harm to support either the jury’s finding on the count 2 and 3 enhancements under section 667.61 or the count 4 aggravated kidnapping charge under section 209, subdivision (b). In other words, he argues that no rational jury could have found that the requisite findings were proven beyond a reasonable doubt. (People v. Earp (1999) 20 Cal.4th 826, 887.)
We consider the issues together; however, it should be noted that section 667.61, subdivision (d)(2), requires a “substantial” increased risk of harm, while section 209, subdivision (b)(2), requires only an increased risk of harm. (Martinez, supra, 20 Cal.4th at p. 232.)
Defendant asks: How did the movement of the victim to a nearby warehouse parking lot increase the risk of harm to the victim? He also asks: How did the movement of the victim from that location to a residential neighborhood increase the risk of harm to the victim?
Defendant cites our discussion in People v. Jones (1997) 58 Cal.App.4th 693 (Jones). However, our opinion is not helpful to defendant, as it answers his questions adversely to his position. Defendant quotes a portion of a paragraph dealing with the risk of harm element. The entire paragraph reads: “For purposes of both kidnapping for robbery and the aggravated kidnapping circumstance, the ‘risk of harm’ element focuses on the movement of the victim during the kidnapping, and the resulting risk of harm. The jury is to consider ‘such factors as the decreased likelihood of detection, the danger inherent in a victim’s foreseeable attempts to escape, and the attacker’s enhanced opportunity to commit additional crimes. [Citations.]’ [Citation.]” (Id. at p. 713.)
More importantly, defendant ignores the following paragraph: “‘“[A]ny substantial asportation which involves forcible control of the . . . victim[”]’ will satisfy the ‘“risk of harm”’ test. [Citations.] Accordingly, ‘[t]he “risk of harm” test is satisfied when the victim is forced to travel a substantial distance under the threat of imminent injury by a deadly weapon. [Citation.]’ [Citations.] On the other hand, when a defendant ‘does no more than move his victim around inside the premises in which he finds him,’ the movement generally will be deemed insufficient. [Citation.]” (Jones, supra,58 Cal.App.4th at pp. 713-714.)
In applying the principles stated above to the facts of this case, we first note that defendant could not attack the victim at home. During their argument, defendant’s mother came into the bedroom and asked what was wrong. A rational jury could conclude that defendant thought he had to get the victim out of the home to attack her, and he did so by demanding that she take him to work long before his usual time.
Upon arrival at the warehouse where defendant worked, the victim pulled up in front of the door. Other cars were in the parking lot, but no people were present. A rational jury could infer that defendant could not continue to attack the victim at that location because his coworkers or other persons might arrive while he was doing so.
Defendant therefore drove the victim several blocks away to the parking lot of another warehouse. He backed the car into a parking spot near some bushes. A rational jury could conclude that this location was a more secluded location, which would allow defendant to attack the victim.
Finally, defendant drove the victim approximately two miles to a residential neighborhood. During the drive, defendant told the victim that he was going to humiliate her, and that he would do things to her that she would regret. Although there was no evidence that the place where they stopped in the residential neighborhood was particularly isolated, a rational jury could conclude that defendant “moved her a substantial distance and that such movement substantially increased the risk to her of both psychological and physical harm.” (People v. Tuan Van Nguyen (2000) 22 Cal.4th 872, 886.) This was particularly true because the victim implied she could not escape without abandoning her daughter in the back seat of the car.
The relevant factors include forcible movement of the victim for substantial distances: “The jury could reasonably have concluded that [the victim’s] forcible movement for this distance and under these circumstances was not merely incidental to the attempted commission of rape, and substantially increased her risk of harm.” (Rayford, supra, 9 Cal.4th at p. 23) As noted above, the risk of harm analysis includes “consideration of such factors as the decreased likelihood of detection, the danger inherent in a victim’s foreseeable attempts to escape, and the attacker’s enhanced opportunity to commit additional crimes.” (Id. at p. 13.)
In addition, the lengthy transportation of the victim “‘gave rise to dangers, not inherent in robbery, that an auto accident might occur or that the victim might attempt to escape from the moving car or be pushed therefrom by [defendant]’ . . . .” (Rayford, supra, 9 Cal.4th at p. 13.) The fact that none of these dangers actually happened is irrelevant to a risk of harm analysis.
The People argue that defendant’s prior attacks, and the threats he made on the way to the residential neighborhood, must have contributed to the victim’s fear of additional attacks and further harm at an unknown location. As noted above, the risk of harm includes a risk of both mental and physical harm. (People v. Tuan Van Nguyen, supra, 22 Cal.4th at p. 886.) A rational jury could find that both elements were present here, especially considering that the victim’s two-year-old daughter was in the car.
In short, a rational jury could conclude that the substantial movements of the victim here were not movements which were merely incidental to the commission of the sex acts, but were movements which aggravated the situation by substantially increasing the risk of harm to the victim. We therefore find that there was substantial evidence to support the jury’s findings on the section 667.61 enhancements to counts 2 and 3, and to support defendant’s aggravated kidnapping conviction in count 4.
The trial court thought that the sentence was too long and that the punishment did not fit the crime. Defendant urges us to consider that the trial court felt that a 10-year sentence would have been more appropriate in deciding the substantial evidence issue. Such consideration would obviously be improper and, in any event, we note that defendant rejected an offer of seven years and elected to proceed to trial.
B. Alleged Ineffective Assistance of Counsel.
Defendant contends that the trial court erred in denying his motion for a new trial. The motion was based on the argument that his two retained trial attorneys were constitutionally ineffective.
Defendant retained Earl Carter to represent him at trial. Carter’s associate, Sean Davitt, represented defendant at the preliminary hearing and another associate, Gina Kershaw, represented defendant at trial. After the verdict, defendant retained Sanjay Sobti, who filed the motion for new trial. As discussed above, the motion alleges that both prior attorneys were constitutionally ineffective.
As defendant explained in his new trial motion, claims of ineffectiveness are properly considered by the trial court in the first instance: “Our cases explain that, in appropriate circumstances, the trial court should consider a claim of ineffective assistance of counsel in a motion for new trial, because ‘justice is expedited when the issue of counsel’s effectiveness can be resolved promptly at the trial level.’ [Citation.] But our assumption has been that courts would decide such claims in the context of a motion for new trial when the court’s own observation of the trial would supply a basis for the court to act expeditiously on the motion. As we stated in People v. Fosselman [(1983)] 33 Cal.3d 572: ‘It is undeniable that trial judges are particularly well suited to observe courtroom performance and to rule on the adequacy of counsel in criminal cases tried before them. [Citation.] Thus, in appropriate circumstances justice will be expedited by avoiding appellate review, or habeas corpus proceedings, in favor of presenting the issue of counsel’s effectiveness to the trial court as the basis of a motion for new trial. If the court is able to determine the effectiveness issue on such motion, it should do so.’ [Citation.]” (People v. Cornwell (2005) 37 Cal.4th 50, 101.)
The parties agree on the general framework used to evaluate defendant’s ineffectiveness contentions. In Strickland v. Washington (1984) 466 U.S. 668 (Strickland), the Supreme Court said: “A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.” (Id. at p. 687.)
“Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. [Citation.] A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ [Citation.] There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way. [Citation.]” (Strickland, supra, 466 U.S. at pp. 689-690.)
“Thus, a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct. A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. In making that determination, the court should keep in mind that counsel’s function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case. At the same time, the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” (Strickland, supra, 466 U.S. at p. 690.)
Since defendant must also show that the errors were prejudicial, he must demonstrate “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Strickland, supra, 466 U.S. at p. 694.)
The Supreme Court also said: “Although we have discussed the performance component of an ineffectiveness claim prior to the prejudice component, there is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one. In particular, a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel’s performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed. Courts should strive to ensure that ineffectiveness claims not become so burdensome to defense counsel that the entire criminal justice system suffers as a result.” (Strickland, supra, 466 U.S. at p. 697.)
Subsequent cases have consistently followed the Strickland guidelines. For example, our Supreme Court has stated: “We have repeatedly stressed ‘that “[if] the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged[,] . . . unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation,” the claim on appeal must be rejected.’ [Citations.]” (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.)
In keeping with his duty to identify the acts or omissions of counsel that are alleged to be deficient, defendant first argues that attorney Kershaw was ineffective because she failed to identify the insufficiency of evidence of increased risk of harm, as discussed above. She also failed to argue the issue to the jury. Second, defendant argues that Kershaw failed to make a section 995 motion. Third, defendant argues that each of his prior attorneys failed to investigate the case, and failed to employ an investigator. Fourth, defendant argues that Kershaw failed to attack the victim’s credibility by calling defendant’s parents as witnesses.
The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. The trial court here did not make specific findings on the substantive issues. It only found that “much of what defense counsel did amounted to reasonable tactical decisions based on the state of the evidence at the time.”
Instead of deciding the motion on the substantive grounds, the trial court focused on a perceived lack of prejudice to defendant. Specifically, it found that prejudice had not been affirmatively proved under People v. Ledesma (1987) 43 Cal.3d 171, 217 (Ledesma). In that case, our Supreme Court reiterated the Strickland factors quoted above and particularly the requirement that: “The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Ledesma, at pp. 217-218, quoting Strickland, supra, 466 U.S. at pp. 693-694.)
In this case, the credibility of the victim was supported by the physical evidence, including the underwear found in defendant’s pocket, the documented physical injuries to the victim, and the DNA evidence. Although defendant argued in the new trial motion that his counsel was ineffective for advising him not to testify, his credibility was subject to serious impeachment. Defendant had told the investigating officer, on the day of the crime, that there was no sexual activity with the victim that morning. If he repeated that story on the witness stand, he would have been impeached by the DNA evidence, which established that semen with his DNA was on the pants worn by the victim on that day. If he testified that there was sexual activity, he would be impeached by his recorded statements to the officer. Thus, the trial court could properly conclude that the outcome of the trial would not have been different if defendant had testified.
In denying the motion, the trial court said: “I note that defendant says he would have testified, but there’s no representation made as to what he would have said or what he would have denied.”
As noted above, the trial court found that much of what trial counsel did at trial amounted to “reasonable tactical decisions” at the time. It impliedly found that none of the other alleged deficiencies were so egregious as to affect the outcome of the trial. In short, the trial court impliedly found that “counsel’s errors were [not] so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” (Strickland, supra, 466 U.S. at p. 687.)
Our standard of review under Strickland and its progeny is also deferential. The trial court was in the best position to determine if counsel’s acts or omissions were those of a reasonably competent attorney, and defendant has not borne his burden of convincing us that the trial court erred in denying his motion for a new trial after finding that defendant was not prejudiced by the alleged acts and omissions of his trial counsel. “A trial court’s ruling on a motion for new trial is so completely within that court’s discretion that a reviewing court will not disturb the ruling absent a manifest and unmistakable abuse of that discretion. [Citation.] This is not such a case.” (People v. Hayes (1999) 21 Cal.4th 1211, 1260-1261.)
C. Abstract of Judgment.
Although not raised as an issue by the parties, we note that the abstract of judgment incorrectly reflects the sentence pronounced by the trial court.
The sentence for counts 1 through 3 is correctly shown on the determinate sentencing form but it is not clear that the three-year term imposed on count 3, the principal term, is to run concurrently with the 25-year-to-life enhancement on that count. The checked box No. 7 on the indeterminate sentencing form indicates an additional determinate term from the determinate sentencing form, but fails to indicate that the additional determinate term is to run concurrently with the 25-year-to-life term on the count 3 enhancement.
More importantly, the checked box No. 6b on the indeterminate sentencing form correctly shows the count 3 enhancement as 25 years to life, but box No. 4 for life without the possibility of parole is incorrectly checked. Box No. 5 should have been checked instead.
The indeterminate sentence form also incorrectly describes the section 209, subdivision (b)(1), offense as kidnapping to commit robbery. There was no robbery here, and the applicable aggravating crime was oral copulation or forcible penetration (§§ 288, 289).
These clerical errors should be corrected.
DISPOSITION
The judgment is affirmed. The trial court is directed to amend the abstract of judgment in accordance with the views expressed in this opinion and to forward a certified copy to the appropriate prison authorities.
We concur: RAMIREZ, P.J., HOLLENHORST, J.