Opinion
H036459
12-12-2011
THE PEOPLE, Plaintiff and Respondent, v. CESAR ENCISO, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Monterey County Super. Ct. No. SS091563A)
Defendant Cesar Enciso was convicted after a court trial of forcible oral copulation (Pen. Code, § 288a, subd. (c)(2)), and sexual battery by restraint (§ 243.4, subd. (a)). The court sentenced him to seven years in prison. On appeal, defendant contends that he was denied his Sixth Amendment right to a fair trial as a result of his trial counsel's ineffective assistance when counsel advised him not to testify. Defendant further contends that the trial court erred in refusing to listen to a CD offered into evidence at the hearing on his motion for a new trial. We will affirm.
All further statutory references are to the Penal Code unless otherwise specified.
BACKGROUND
Defendant was charged by information with assault with the intent to commit oral copulation (§ 220; count 1), forcible oral copulation (§ 288a, subd. (c)(2); count 2), sexual battery by restraint (§ 243.4, subd. (a); count 3), and making criminal threats (§ 422; count 4). He waived his right to a jury trial.
The Court Trial
"Jane Doe" was 33 years old at the time of defendant's trial and she had two daughters. Her formal education ended after she attended first grade in Mexico. In early February 2008, she was involved in court proceedings in an attempt to regain custody of her daughters from "the government." She was looking for work, and a friend of a friend, Geraldo, stated that he might be able to find her a job in security. When she initially spoke on the phone with defendant at First Response Security, he said that he could not hire her because she did not have a license for security. However, a short time later he called her back and told her that he urgently needed somebody to work at the swap meet in Salinas from 6:00 a.m. to 6:00 p.m.
Doe began working in the parking area of the swap meet beginning February 3, 2008. She worked alone and could not leave her post to go to the bathroom or get something to eat. She contacted defendant by cell phone to tell him when she arrived at and left work, and during work hours when any problems arose. On February 6, 2008, defendant arrived at the swap meet while she was working. She did not know at that time who he was. He parked "wrong," so she had to tell him to park "right." He laughed and told her that he was her boss. He approached her, looked her "up and down" and said that he would never have imagined that she looked like she did from talking with her on the phone. She told him that she needed to work a lot, and he said that he could give her all the hours she wanted. He said that she had to have dinner with him so that he could tell her about the available hours.
Defendant drove Doe home when she got off work at 6:00 p.m. that night. He left and returned around 9:00 p.m. They went to a restaurant for about two hours. Defendant asked her about her family and he told her about himself. She asked him if he was married, and he said that he had never married. He did not talk about work. When she said that she wanted to talk about work hours, he said that if she wanted to, she could work that night at 1:00 a.m. at a construction site. She said that she wanted the work. He said that he would take her home so that she could get her uniform.
Defendant drove her to his house, telling her that he was going to change and grab some things for work. She wanted to stay in the car, but he said that it was better for her to go inside. She went inside and sat on a sofa. Defendant went upstairs and took a shower. He was gone awhile and she fell asleep. When he came back downstairs, she woke up and told him that she was tired and wanted to go home. He said that he was not going to take her home. He stood in front of her so that her legs were between his legs. He squeezed her legs, grabbed her by the hair, pulled her head back, and kissed her on her neck. She started to cry and yelled at him to move away. He said that all he wanted was for her to suck on his penis. He continued to kiss her neck while she struggled and tried to push him away. The straps from her camisole fell, exposing her breasts. He kissed her breasts and bit her nipples, which hurt her, while grabbing her arm with one hand and pulling her head forward by her hair with the other.
Defendant pulled Doe's face close to his exposed, erect penis. She did not see how his penis became exposed. She told defendant to let her go, that she did not want to do that, and that she wanted to go home. When she moved from side to side trying to get away, his penis touched her face. He tried to put his penis inside her mouth but she pulled back and kept her teeth clenched closed. However, when she tried to scream, he was able to put his penis partially in her mouth and ejaculate. She cleaned the semen off her face with her camisole.
Defendant then said that he was going to take her home. He went upstairs and got her a T-shirt. After wiping her camisole with the T-shirt, she put the T-shirt on over her camisole. Defendant touched her buttocks and vagina as she was getting into his vehicle. She told him that she was upset and that she was going to contact the police. He laughed and said that he was not afraid of the police, that he had a lot of friends in the department, that nobody would believe her, and that the chief of police was his friend. When she said that she was going to report him anyway, he said that if she did he would kill her. She told him that she did not care. Defendant eventually took her home. She kept her camisole and defendant's T-shirt bunched up in her closet.
Doe did not go to work the next day because she was embarrassed and upset. She went back to work when Geraldo told her that defendant was out of town. After she had worked three days, defendant showed up at her work place while she was working. She then quit her job. Defendant sent Geraldo to put notes on her door saying that she had to go back to work and defendant tried to contact her on her cell phone. She does not remember making any phone calls to him during this time. When Vincente Cortes gave her a paycheck from First Response, she told him what happened because she wanted to explain to him why she could not work there any longer. She said that she believed that all men are dogs.
Doe gave her camisole and defendant's T-shirt to an attorney and then contacted the police. She told the police that she had been sexually assaulted, and she learned then that defendant was married. Officers listened to a pretext call she made to defendant at their request. A few days before she testified, Doe got a call on her cell phone from an individual who said that if she did not leave for Mexico within 48 hours, the individual would kill her or her daughters.
Cortes used to work as a supervisor for defendant, but he never knew when people were hired or fired. He talked to Doe for the first time when he was turning in some checks in February 2008. She asked him why defendant was not there. Cortes said that defendant went to Fresno to see his wife. Doe got angry, started crying, and said that all men are dogs. He told her to calm down and asked her what happened. She said that defendant had taken her to his house, told her to wait, and then forced her to have sex with him. She said that she was afraid and intimidated.
Salinas Police Officer Jordan White met with Doe at her residence on March 10, 2008. Doe was nervous and upset. She said that she was reluctant to be seen speaking with him because defendant had a lot of friends at the police department and she believed that he was capable of harming her to prevent her from filing a report. Doe reported that defendant sexually assaulted her at his residence on February 6, 2008, by putting his penis inside her mouth while she was trying to scream. She said that he had ejaculated on her chest and shirt. She said that she did not report the assault earlier because defendant said he had a lot of friends in the police department and they would make any allegations disappear. She said that defendant also said that he would kill her if she filed a report. She was able to point out defendant's residence to the officer.
Salinas Police Officer Thomas Larkin spoke to Doe on March 13, 2008. He then took possession of Doe's camisole and defendant's T-shirt and booked them into evidence. He obtained a buccal swab from defendant in November 2008, and booked it into evidence.
Eric Halsing, a criminalist at the state DNA lab, testified that Sarah Calvin did the DNA analysis in this case and that he reviewed her report. Calvin tested a sample cutting from the camisole. In both Calvin's and Halsing's opinion, the DNA from the sperm on the camisole matched defendant's DNA profile. Calvin also tested a sample cutting from defendant's T-shirt. The quantity of DNA detected was small, but it was consistent with defendant's DNA profile.
The parties agreed that Calvin did not need to testify.
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Nelda Sanders, an investigator with the district attorney's office, interviewed Doe on August 27, 2008, and October 15, 2008. Doe told Sanders that she accompanied defendant to his house and that she stayed downstairs when defendant went upstairs. Doe said that when defendant came back downstairs, he approached her. He pulled her hair back, kissed her neck and chest areas, bit her on the right breast, and controlled her head to have her suck on his penis. At some point, defendant ejaculated on her chest, stomach, and blouse. Doe was upset and crying when she talked about this.
Defendant did not testify.
Verdict
On June 22, 2010, the court found defendant guilty of count 2 (forcible oral copulation, § 288a, subd. (c)(2)), and count 3 (sexual battery by restraint; § 243.4, subd. (a)). It found that count 1 (assault with intent to commit oral copulation; § 220) was included in count 2, and it found defendant not guilty of count 4 (criminal threats; § 422). On July 23, 2010, defendant substituted in new counsel.
Motion for New Trial
On September 22, 2010, new counsel filed a motion for new trial, contending that defendant was deprived of the effective assistance of trial counsel, in part due to having been "strongly encouraged by his counsel not to testify at the court trial." "It is inconceivable to replacement counsel that trial counsel strongly encouraged defendant not to testify in his own defense, since his testimony was crucial to presenting any opposition to the prosecution's theory that the conduct was forcible sexual activity. It appears to replacement counsel that trial counsel's attempts during the trial to focus on the content, or lack of content, of cell phone calls, possible contamination of DNA evidence and possible motives for the complaining witness to lie about what happened on February 6, 2008 met with negligible results, and, frankly, could never have been expected to yield any positive results without defendant's testimony at trial."
The prosecutor's written opposition to the motion for new trial contended that "defendant has the burden to show that prior counsel was ineffective and he has failed to make any sort of prima facie case. His motion has no affidavits, no evidence of any kind to back up his assertion. Under these circumstances the court should not exercise its discretion to hear the motion. [¶] But assuming the court wishes to hear testimony from the defendant as well as [trial counsel] about trial tactics and strategy and the advice that was given to Mr. Enciso and so forth, the defendant's claim still has no merit and should be denied." "[T]he defendant has an absolute right to testify or not testify, counsel cannot prevent him from testifying. Mr. Enciso, not [trial counsel] made the choice not to testify [and] . . . there are a number of reasons that Mr. Enciso might decide not [to] testify."
On October 29, 2010, defendant filed his declaration in support of his motion for new trial. In it, defendant declared that the subject of whether he would or would not testify at trial "was hardly ever discussed between my counsel and me prior to the June 17 meeting" at counsel's office. "Up to that time, [counsel] had told me that . . . they didn't think they would need me to testify at the trial, but, if they decided they did, they would put me on the stand, and they asked me if I was okay with that. I told them that would be fine, because I wanted to have the court hear my version of the events. Another very important fact in making the decision about testifying or not at the trial was that it was my understanding that the judge had already read the police report, so he had already read my statements to Detective Larkin and had already read the transcript of my statements on the pretext call. That is what I thought happened at trials - that the judge would read all of those materials. Had I known at that time that the judge had not reviewed those materials, I would have insisted on testifying, because that would have been the only way that Judge Duncan would have heard my side of the story. As it turned out, of course, my side of the story was never presented at trial. [¶] I placed my fate in the hands of [trial counsel], and I was convicted at the court trial. After the guilty verdicts were returned by the judge, I asked [counsel] how this could have happened, and he indicated to me that he had tried to convince the court that the evidence was insufficient for the court to arrive at guilty verdicts, but that he had somehow failed in that attempt. It was only in that discussion with [counsel] after the trial was over that I learned that the judge had not read the police reports, and had, therefore, not read or listened to any of my statements. After I was told this by [counsel], it seemed obvious to me why I had lost the trial - because no evidence of my innocence was ever presented to the court."
Attached to the copy of defendant's declaration was a CD of Detective Larkin's interview of defendant. Defendant declared that he was presenting the CD "so that the court understands that not only did I have a defense to the charges, but that I had stated that defense to the police well before trial in this case."
At the hearing on the motion on November 5, 2010, the court stated that it had read and considered the parties' papers and defendant's declaration, but it did not review the CD "because that would not be admissible in any case." Defendant's counsel offered to have defendant testify or to submit a transcript of the CD, "whatever the Court prefers." The court responded, "Well, the Court prefers not to do that because I don't think it's my job here to retry the case on a motion for new trial based on incompetency of counsel. [¶] I would have trouble seeing how a statement made to the police would shed much light on the competency or incompetency of counsel during the trial. [¶] . . . [T]he Court doesn't feel it's appropriate to try to make some determination about what -how if Mr. Enciso had testified, it might have changed my judgment in the case. I just don't think it's my job here to retry the case." Defendant's counsel stated, "Well, I'm not asking the Court to retry the case. I agree with the Court that I just want some record made that there was a defense that he could have presented and which had been available to his counsel before trial. That's all."
After hearing argument from the parties, the court ruled as follows. "Well, frankly, the Court feels that the basis of the motion, the alleged incompetency of counsel is more properly an appellate issue than a new trial issue, and of course, that has been addressed by both sides. [¶] The Court felt that there could be something that the Court was not aware of that might make it appropriate for the Court to address the matter at this time. [¶] However, I was there. I heard the case. The Court could have chosen not to believe the complaining witness, and [trial counsel] went out of his way to impeach her in every way he could come up with. [¶] The fact, the bottom line was that the witness just turned out to be a persuasive witness, and that's the basis on which the Court made its decision. [¶] If any case, you can second-guess trial strategy by counsel, but I saw [trial counsel's] performance throughout this case from the very beginning throughout the trial, and I didn't see anything that would border on incompetency. [¶] The appellate court may see it differently, but the Court doesn't feel that that is in fact the case, so the Court denies the motion." Sentencing
The probation report stated that defendant has a 2001 misdemeanor conviction for insurance fraud (Ins. Code, § 1871.4, subd. (a)(1)), but the case was dismissed in 2003 pursuant to section 1203.4. The report also stated that defendant has been married since July 2006. The report recommended that probation be denied and that defendant be sentenced to prison "for the term prescribed by law." The court sentenced defendant to seven years in prison. The sentence consists of the middle term of six years on count 2 (§ 288a, subd. (c)(2); forcible oral copulation), and a consecutive term of one year (one-third the middle term) on count 3 (§ 243.4, subd. (a), sexual battery by restraint).
DISCUSSION
Defendant contends that he was denied his Sixth Amendment right to a fair trial as a result of trial counsel's ineffective assistance when counsel advised defendant not to testify. He argues that, "as evidenced by his pretrial statement given to Detective Larkin and memorialized in the CD provided to the court with defendant's declaration in support of his motion, and as further evidenced by defendant's statement to the probation officer, [defendant] had a viable and complete defense to the charges against him, or at least the chance of raising a reasonable doubt - if that testimony consistent with those statements had been put forth at trial, and if that testimony had been believed by the trier of fact. [¶] That defense was not put forward because . . . defendant did not testify at the trial. Defendant did not testify at the trial because he followed his attorney's advice not to testify." Defendant further contends that the court erred in ruling at the hearing on the motion for new trial that the CD "was hearsay, and did not listen to it for that reason. As was made clear . . . the CD was not offered for the truth of the matter asserted, but rather for the purpose of proving that trial counsel knew before the trial that the defendant was the only person who could testify as to his version of the facts, and that his version constituted a defense to the charges."
The Attorney General contends that defendant's trial counsel's performance "was reasonable under the circumstances, and no prejudice resulted because [defendant's] defense was not convincing. Moreover, if [defendant] had testified, his credibility would have been eviscerated on cross-examination by his prior fraud conviction and his dishonest representations to Doe that he was not married . . . ." The Attorney General further contends that the trial court "did not exclude the CD as hearsay. It excluded it as irrelevant."
A defendant who presents a claim of ineffective assistance of counsel on appeal must show that the performance of his trial counsel was deficient, and that he was prejudiced thereby. (Strickland v. Washington (1984) 466 U.S. 668, 686-687 (Strickland); People v. Ledesma (1987) 43 Cal.3d 171, 215-218; People v. Anderson (2001) 25 Cal.4th 543, 569.) "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. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland, supra, at p. 694.) "Thus, to be entitled to reversal of a judgment on grounds that counsel did not provide constitutionally adequate assistance, the petitioner must carry his burden of proving prejudice as a 'demonstrable reality,' not simply speculation as to the effect of the errors or omissions of counsel. [Citation.]" (People v. Williams (1988) 44 Cal.3d 883, 937 (Williams).)
"Reviewing courts defer to counsel's reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a 'strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.' [Citation.]" (People v. Lucas (1995) 12 Cal.4th 415, 436-437.) "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, 266-267 (Mendoza Tello).)
"An attorney undoubtedly has a duty to consult with the client regarding 'important decisions,' including questions of overarching defense strategy. [Citation.] That obligation, however, does not require counsel to obtain the defendant's consent to 'every tactical decision.' [Citation.] But certain decisions regarding the exercise or waiver of basic trial rights are of such moment that they cannot be made for the defendant by a surrogate. A defendant, [the United States Supreme Court] affirmed, has 'the ultimate authority' to determine 'whether to plead guilty, waive a jury, testify in his or her own behalf, or take an appeal.' [Citations.] Concerning those decisions, an attorney must both consult with the defendant and obtain consent to the recommended course of action." (Florida v. Nixon (2004) 543 U.S. 175, 187.)
"A defendant in a criminal case has the right to testify in his or her own behalf. [Citations.] The defendant may exercise the right to testify over the objection of, and contrary to the advice of, defense counsel [Citations.]" (People v. Bradford (1997) 15 Cal.4th 1229, 1332.) "With respect to defendant's asserted desire to testify at trial, we are guided by well settled rules: ' "Every criminal defendant is privileged to testify in his own defense, or to refuse to do so." [Citation.] The defendant's "absolute right not to be called as a witness and not to testify" arises from the Fifth Amendment to the United States Constitution and article I, section 15 of the California Constitution. [Citation.]
Although tactical decisions at trial are generally counsel's responsibility, the decision whether to testify, a question of fundamental importance, is made by the defendant after consultation with counsel. [Citations.]' " (People v. Carter (2005) 36 Cal.4th 1114, 1198 (Carter).)
"While the defendant has the right to testify over his attorney's objection, such right is subject to one significant condition: The defendant must timely and adequately assert his right to testify. [Citation.]" (People v. Hayes (1991) 229 Cal.App.3d 1226, 1231.) "When the record fails to disclose a timely and adequate demand to testify, 'a defendant may not wait the outcome of the trial and then seek reversal based on his claim that despite expressing to counsel his desire to testify, he was deprived of that opportunity.' [Citations.]" (People v. Alcala (1992) 4 Cal.4th 742, 805-806; Carter, supra, 36 Cal.4th at p. 1198.) " '[A] trial judge may safely assume that a defendant, who is ably represented and who does not testify[,] is merely exercising his Fifth Amendment privilege against self-incrimination and is abiding by his counsel's trial strategy; otherwise, the judge would have to conduct a law seminar prior to every criminal trial.' " (People v. Cox (1991) 53 Cal.3d 618, 671, disapproved on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22, quoting People v. Mosqueda (1970) 5 Cal.App.3d 540, 545; Carter, supra, at p. 1198.)
In this case, the record shows that defendant was aware of his right to testify. He stated in his declaration that he discussed with counsel the possibility that counsel would call him to testify. However, the record belies defendant's contention that counsel had advised him to not testify. Rather, it shows that trial counsel told defendant that his testimony was not needed, that defendant did not assert his right to testify, and that counsel did not encourage him to do so for tactical reasons. Defendant stated in his declaration that "[counsel] had told me . . . that they didn't think they would need me to testify at the trial, but, if they decided they did, they would put me on the stand, and they asked me if I was okay with that. I told them that would be fine, because I wanted to have the court hear my version of the events." In light of the strong deference we must accord to counsel's tactical decisions, we find that defendant has not met his burden to show ineffective assistance of counsel. (Mendoza Tello, supra, 15 Cal.4th at pp. 266267; Carter, supra, 36 Cal.4th at p. 1198.)
Even if we assume trial counsel's performance was deficient, defendant cannot establish prejudice. Defendant has failed to meet his burden of establishing that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland, supra, 466 U.S. at p. 694.) The physical evidence indicated that defendant engaged in some sexual activity with Jane Doe. The trial court found Jane Doe to be a credible witness and believed her account of what that sexual activity entailed. The court stated that "the bottom line was that the witness just turned out to be a persuasive witness, and that's the basis on which the Court made its decision." There is nothing in the record to support defendant's claim that the trial court would have discredited Jane Doe's testimony if defendant had testified consistent with his pretrial statements. Defendant's claim is mere speculation, which is insufficient to establish prejudice. (Williams, supra, 44 Cal.3d at p. 937.)
That the trial court stated that it would not listen to the CD of defendant's police interview does not change our analysis. The trial court found that it "would have trouble seeing how a statement made to the police would shed much light on the competency or incompetency of counsel during the trial." We read this statement by the court, as does the Attorney General, as indicating that the court found the CD irrelevant to its determination of the issue before it. We agree with that determination.
"[A] criminal defendant is constitutionally entitled to present all relevant evidence of significant probative value in his favor. . . ." (People v. Marshall (1996) 13 Cal.4th 799, 836.) " 'Relevant evidence' means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) As pertinent here, defendant's motion for new trial was based on a claim of ineffective assistance of counsel because counsel "strongly encouraged" him to not testify. The CD defendant presented the court was of his pretrial statement to the police. Defendant did not state in his declaration in support of his motion for new trial that, had counsel called him to testify, he would have testified consistent with the contents of the CD. Neither did defendant state in his declaration that trial counsel "strongly encouraged" him to not testify because of the contents of the CD. Most importantly, defendant did not state in his declaration that the contents of the CD had any bearing on the reason he chose to not testify. Rather, defendant stated in his declaration that he chose to not testify because counsel stated that his testimony was not needed and that, for some unexplained reason, defendant thought that the trial court had already read the police reports. Accordingly, the contents of the CD did not have any tendency in reason to prove or disprove defendant's claim of ineffective assistance of counsel. Even assuming the court erred in refusing to listen to the CD for the motion for new trial, defendant has failed to meet his burden of establishing that "there is a reasonable probability that, but for counsel's unprofessional error, the result of the proceeding would have been different." (Strickland, supra, 466 U.S. at p. 694.)
DISPOSITION
The judgment is affirmed.
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BAMATTRE-MANOUKIAN, J.
WE CONCUR:
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PREMO, ACTING P.J.
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MIHARA, J.