Opinion
E064904
11-27-2017
THE PEOPLE, Plaintiff and Respondent, v. MIGUEL FLORES, JR., Defendant and Appellant.
Law Offices of Jeffrey R. Lawrence and Jeffrey R. Lawrence for Defendant and Appellant. Xavier Becerra, Attorney General, Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Teresa Torreblanca and Charles C. Ragland, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIF1311461) OPINION APPEAL from the Superior Court of Riverside County. Irma Poole Asberry, Judge. Affirmed. Law Offices of Jeffrey R. Lawrence and Jeffrey R. Lawrence for Defendant and Appellant. Xavier Becerra, Attorney General, Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Teresa Torreblanca and Charles C. Ragland, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant and appellant Miguel Flores, Jr., guilty of four counts of committing a lewd or lascivious act with a child who is under the age of 14 years. (Pen. Code, § 288, subd. (a).) The jury found true the allegation that defendant's offenses involved more than one victim. (§ 667.61, subd. (e)(4).) The trial court sentenced defendant to prison for an indeterminate term of 30 years to life.
All subsequent statutory references will be to the Penal Code unless otherwise indicated. --------
Defendant raises three issues on appeal. First, defendant contends substantial evidence does not support his four convictions. Second, defendant asserts the prosecutor committed misconduct during closing argument. Third, defendant contends his trial counsel rendered ineffective assistance. We affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
A. BACKGROUND
Defendant worked for a daycare in Corona. Defendant drove children from their schools to the daycare. The victims in this case, Jane Doe 1 and Jane Doe 2, were driven to the daycare by defendant.
B. PROSECUTOR'S CASE
1. JANE DOE 2
a) Forensic Interview
Jane Doe 2 (JD2) was born in September 2005. JD2 was interviewed by Child Forensic Interviewer Jacklyn Saldana. During the interview, JD2 said defendant drove her to a street and stopped under a tree. The street did not have any businesses on it, but it had a few houses. JD2 did not see other people on the street. The street was "out of the way a little" on the route from JD2's school to the daycare. Defendant placed a sunshield in the windshield, which blocked the sunlight. Defendant told JD2 to move to the car's front passenger seat.
When JD2 was in the front passenger seat, defendant hugged her. The hugs occurred every time defendant drove JD2 from approximately August 30, 2013, to September 19, 2013, and almost always occurred in the same location near the tree. JD2 was always the only child in the car. Defendant did not speak during the hugs. Defendant's hands were on JD2's back during the hugs. The hugs lasted for one to two minutes. After a hug ended, JD2 returned to the back passenger seat.
b) Trial Testimony
At trial, JD2 testified that defendant's hugs were short in duration. JD2 believed she had been incorrect when she previously stated the hugs lasted for a minute. The hugs from defendant made JD2 feel "weird." The hugs from defendant felt different than the hugs from JD2's teacher. Defendant instructed JD2 to keep the hugs a secret.
2. JANE DOE 1
a) Forensic Interview
Jane Doe 1 (JD1) was born in May 2002. On October 7, 2013, JD1 was interviewed by Saldana. Defendant touched JD1 on multiple occasions during the drives to the daycare. During the first touching, JD1 was sitting in the front passenger seat of the car. Defendant placed his hand on JD1's thigh and rubbed her thigh. JD1 tried to ignore defendant's touching by speaking to another child in the car, Bryson, who was seated in the backseat. JD1 was "terrified" by defendant touching her. The first touching occurred in late September 2013, on a Monday or Tuesday.
The second touching occurred on Wednesday, the same week as the first touching. During the second touching, defendant placed his hand on JD1's thigh. Defendant squeezed JD1's thigh. Defendant's hand was on JD1's thigh for approximately two to three minutes. Defendant's hand was closer to JD1's genitalia than it had been during the first touching. Defendant touched JD1's genital area for 30 to 40 seconds.
Defendant did not say anything to JD1 while he was touching her. JD1 spoke to Bryson, in an attempt to ignore defendant. After the second touching, when JD1 was at the daycare facility playing in the sandbox, defendant mouthed the words, "I love you" to her; he did it again when JD1 was playing Xbox.
The third touching occurred on or about Monday of the following week. On the day of the third touching, despite it being a hot day, JD1 wore a long jacket that she thought would "protect everywhere [be]cause it was buttoned all the way." Defendant placed his hand on JD1's leg for approximately one minute. Defendant then "found a small opening through [the] jacket" and rubbed JD1's breasts, over her shirt, with his hand, for approximately two minutes. JD1 spoke to Bryson in an attempt to ignore the touching.
On a fourth occasion, defendant and JD1 were alone in the car. Defendant stopped the car behind a different daycare center, in an alley. Defendant asked JD1 for a hug. JD1 complied, although she wanted to refuse. The hug lasted for approximately one minute. Defendant told JD1, " 'I love you.' " JD1 felt scared to be in the car with defendant. The hug occurred the same week as the third touching, possibly on Thursday.
b) Trial Testimony
At trial, JD1 testified that she likely exaggerated the duration of defendant's hug. JD1 believed defendant's hug lasted approximately three seconds. JD1 believed defendant touched her leg for less than 10 seconds. JD1 did not like when defendant touched her leg "[b]ecause it[ was] weird." When defendant touched JD1's breasts, his hand was on her chest for three to 30 seconds.
C. DEFENDANT'S CASE
Michael Kania, Ph.D., a forensic psychologist, testified as a defense witness. Kania writes psychological evaluations to assist the trial court in assessing options for people accused of crimes and convicted of crimes. Kania had spoken with defendant and evaluated defendant. Kania opined that defendant was "very immature" for his age and suffered impaired social judgment, but did not suffer from pedophilia. Defendant admitted to Kania that he hugged the victims. Defendant told Kania that defendant accidentally touched JD1's breasts and genital area.
D. CLOSING ARGUMENTS
1. PROSECUTION'S ARGUMENT
Defendant was charged with four counts of lewd or lascivious conduct. (§ 288, subd. (a).) Three counts concerned JD1 and one count concerned JD2. For the count involving JD2, the prosecutor argued that the criminal act was defendant hugging JD2. For the three counts involving JD1, the prosecutor argued that the criminal acts consisted of (1) touching JD1's genital area; (2) touching JD1's breasts; and (3) hugging JD1.
2. DEFENDANT'S ARGUMENT
During closing argument, defendant's trial counsel asserted the prosecutor failed to prove that defendant acted with the required sexual intent. Defense counsel argued that defendant was guilty of the lesser included crimes of assault and battery.
DISCUSSION
A. SUBSTANTIAL EVIDENCE
Defendant contends substantial evidence does not support his four convictions. Defendant focuses on a lack of evidence supporting the element of intent.
When a defendant challenges the sufficiency of the evidence, we review the entire record in the light most favorable to the prosecution to determine if any rational trier of fact could have found the evidence proved the elements of the crime. We make all reasonable inferences in favor of the judgment. We do not resolve credibility issues nor evidentiary conflicts. (People v. Manibusan (2013) 58 Cal.4th 40, 87.)
A conviction for a lewd or lascivious act with a minor requires proof the defendant intended to arouse, appeal to, gratify the lust, passions, or sexual desires of defendant or the child. (§ 288, subd. (a).) Because intent is seldom "proven by direct evidence, it may be inferred from the circumstances." (People v. Villagran (2016) 5 Cal.App.5th 880, 891.)
In regard to JD2, defendant drove out of his way to a less-populated area, where he blocked the windshield with a sunshade before hugging JD2. This evidence suggests defendant had an illicit sexual intent in hugging JD2 because it reflects he did not want people to witness him hugging the child. Additionally, defendant instructed JD2 to keep the hugs a secret. This evidence suggests defendant was worried about people discovering he hugged JD2. Defendant's concern implies he had an illicit sexual intent in touching JD2. Further, defendant did not speak to JD2 while hugging her. From this evidence one can eliminate the possibility that defendant was trying to comfort the child.
In regard to JD1, defendant touched her genital area and her breasts. Defendant's acts of touching JD1's genital area and breasts indicates a sexual interest in JD1. After defendant touched JD1's genital area, he twice mouthed the words "I love you" to her. This evidence reflects defendant had a romantic interest in JD1 because he touched an intimate part of her body and expressed affection for her. After defendant hugged JD1, he told her, " 'I love you.' " This evidence reflects defendant harbored affection for JD1.
In sum, defendant's acts of (1) touching JD1's breasts and genital area, and (2) telling JD1 that he loves her, reflect a sexual interest in JD1. Defendant's acts of taking JD2 to a less-populated area, blocking the view into the car, hugging JD2, and telling JD2 to keep the hugs a secret, indicate an illicit sexual intent. Accordingly, substantial evidence supports the finding that defendant touched the victims to arouse, appeal to, gratify the lust, passions, or sexual desires of defendant. (§ 288, subd. (a).)
Defendant contends the evidence is insufficient because JD1 was inconsistent in her statements regarding the details of the offenses. As set forth ante, we do not resolve conflicts in the evidence or issues of credibility. (People v. Manibusan, supra, 58 Cal.4th at p. 87.) Accordingly, we do not analyze the alleged inconsistencies in the details of JD1's statements.
B. PROSECUTORIAL MISCONDUCT
1. PROCEDURAL HISTORY
During closing argument, the prosecutor made the following statements: "Arousal is not required, so he doesn't have to get an erection from it or anything like that. It's when he touched, what was he trying to do? Was he trying to arouse himself? Was he trying to gratify that thing inside of him that likes to touch kids? So that's what it is. Arousal is not required. Appealing to is not required. Gratifying the lusts, passions of himself or the child is not required. It's what he was trying to do when he made that touch.
"And it's not required that he intended to break the law or hurt someone else. So in [JD2's] case, it's not required that he wanted to scare her, that he wanted her to know that she was being molested. It's not what she thinks. It's not about her. It's about what's in his mind, what he's doing. If he tried to do it safe and say, you know, I'm going to try to hug her and something excites me about that, but this is minor conduct. She won't know what I'm doing, so I won't hurt her. He's still guilty because he doesn't have to break the law; he doesn't have to hurt someone else. Just when he goes to that hug, what is he trying to do? He's trying to appeal to his lusts, passions, and sexual desires."
2. ANALYSIS
Defendant contends the prosecutor committed misconduct by misstating the law and attempting to shift the burden of proof. The People contend defendant forfeited this issue by failing to object in the trial court. We agree the issue has been forfeited due to a failure to object; however, we choose to address the merits of the issue. (People v. Foster (2010) 50 Cal.4th 1301, 1351.)
It is misconduct for a prosecutor to misstate the applicable law. (People v. Gray (2005) 37 Cal.4th 168, 217.) The prosecutor said, "Arousal is not required. Appealing to is not required. Gratifying the lusts, passions of himself or the child is not required. It's what he was trying to do when he made that touch." Defendant contends the foregoing quote is a misstatement of the law.
The prosecutor's statement is accurate. The prosecutor is not required to prove arousal or gratification occurred. Rather, the prosecutor must prove the defendant intended to arouse or gratify himself or the child at the time he touched the child. (§ 288, subd. (a).) Thus, the prosecutor correctly informed the jury that arousal and gratification are not elements of the offense, but intent is an element of the offense.
Next, defendant takes issue with the prosecutor's statement, "He's still guilty because he doesn't have to break the law; he doesn't have to hurt someone else." "When a claim of misconduct is based on the prosecutor's comments before the jury, ' "the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion." ' " (People v. Thompson (2010) 49 Cal.4th 79, 121.)
Read in isolation, the prosecutor's statement is confusing. One would question why defendant would be guilty if he did not break the law. Read in context, the prosecutor's statement appears to be a misstatement of a jury instruction. The relevant jury instruction provides, "Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage." (CALCRIM No. 1110.) The trial court gave the jury CALCRIM No. 1110. The trial court's version of the instruction included the word "intend" where the prosecutor had omitted it.
At most, the prosecutor's statement was confusing. Therefore, it is not reasonably likely the jury construed or applied the remark in an objectionable fashion, especially in light of the trial court having given the jury the instruction in its standard, comprehensible, i.e., not confusing, form. (See People v. Boyette (2002) 29 Cal.4th 381, 436 [we presume the jury followed the court's instructions].) Accordingly, we conclude there was no error.
Defendant contends that, due to the foregoing statements by the prosecutor, the jury was misled as to which party bore the burden of proof. As explained ante, (1) the prosecutor did not misstate the law concerning arousal and gratification, and (2) the prosecutor's statement about breaking the law and hurting people was confusing and not reasonably likely to have been applied in an objectionable fashion. Given that one statement was correct and the other statement was confusing, we are not persuaded that either statement caused a shift in the burden of proof, especially in light of the trial court giving the jury the standard instruction on the People's burden of proof. (CALCRIM No. 220.)
C. INEFFECTIVE ASSISTANCE
1. PROCEDURAL HISTORY
At the preliminary hearing, defendant was represented by private defense counsel, Sean Davitt. Defendant testified at the preliminary hearing. The facts in the following three paragraphs are derived from defendant's testimony.
Defendant stopped the car and hugged JD2 because she was feeling ill. Defendant hugged JD2 on other occasions, for example, when she entered the car and at the daycare.
In regard to JD1, defendant occasionally tapped her knee and asked her if she was okay when she not speaking. Once, JD1 was holding Orbeez, which are small water-based beads. JD1 handed one of the beads to defendant; it broke and fell between JD1's legs. Defendant retrieved the bead but immediately apologized for touching JD1; JD1 responded, " 'That's okay.' "
On one occasion, JD1 removed her seatbelt, in order to talk to children in the back of the car. Defendant suddenly saw "a car that came in" and placed his arm across JD1's chest to restrain her from being thrown forward. Defendant hugged JD1 when she was sad and crying following the death of her hamster. Defendant told JD1 that people at the daycare loved her and not to feel sad.
At trial, defendant was represented by A.C. Jones, of the Riverside County Public Defender's Office. After trial, defendant was represented by private counsel, Jeffrey Lawrence. Lawrence filed a motion for new trial arguing (1) insufficient evidence; (2) prosecutorial misconduct; and (3) ineffective assistance of counsel by Jones. The trial court denied the motion.
2. ANALYSIS
a) Contention
Defendant contends Jones rendered ineffective assistance because: (1) Jones did not adequately investigate the case; (2) Jones was unprepared for trial; and (3) Jones did not adequately communicate with defendant.
b) Law
" ' "[I]n order to demonstrate ineffective assistance of counsel, a defendant must first show counsel's performance was 'deficient' because his 'representation fell below an objective standard of reasonableness . . . under prevailing professional norms.' [Citation.] Second, he must also show prejudice flowing from counsel's performance or lack thereof. [Citation.] Prejudice is shown when 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.'
" '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.] '[W]e accord great deference to counsel's tactical decisions' [citation], and we have explained that 'courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight' [citation]. 'Tactical errors are generally not deemed reversible, and counsel's decisionmaking must be evaluated in the context of the available facts.' " (People v. Weaver (2001) 26 Cal.4th 876, 925-926.)
c) Evidence
Defendant asserts that if Jones had adequately investigated the case and adequately prepared for trial, then Jones would have presented the case differently by (1) performing lengthier cross-examinations of the victims and other witnesses; (2) providing evidence that JD1 possibly made a sexual assault complaint at her previous daycare; (3) providing evidence that JD1's family was motivated to exaggerate JD1's claims because they might file a civil lawsuit against the daycare; (4) providing evidence that JD1 had a habit of lying; (5) providing evidence it was common for daycare staff to hug the children; (6) providing evidence the victims had been observed hugging defendant at the daycare; (7) providing evidence of defendant's good character; and (8) obtaining a different and better expert witness, or privately retaining Kania for a more thorough testing of defendant.
Defendant is asserting Jones rendered ineffective assistance by failing to provide more affirmative evidence. Jones's decision to provide a minimal amount of affirmative evidence and briefly cross-examine the victims was a reasonable tactical decision. A minimal case on the part of the defense runs less risk of filling-in gaps left by the prosecution. It permits the defense to more easily argue that the prosecution failed to meet its burden.
In this case, the victim's clothes remained on during the touchings. Defendant repeatedly stopped his car to hug JD2, but he only hugged her—he did not touch her in the same manner he touched JD1. Additionally, both victims ultimately testified that the touchings were short in duration—defendant did not necessarily linger when touching them.
Jones could reasonably argue from this evidence that the touchings were not sexual in nature, i.e., that defendant did not have an illicit sexual intent. If Jones complicated the case by piling-on affirmative evidence of innocence and putting JD1's veracity on trial, he could have made it more difficult for himself to argue the simple point that the prosecution failed to meet its burden concerning the element of intent. Additionally, as Jones testified at the hearing on the motion for new trial, he was concerned that the character witnesses might open the door to evidence concerning defendant's alleged involvement in prior molestations. In sum, Jones made a reasonable tactical decision to present a simple version of the case that focused on the prosecution's burden. Jones did not render ineffective assistance in this regard.
d) Objections
Defendant contends Jones rendered ineffective assistance because Jones (1) failed to object to opinion statements within JD1's recorded pretrial interview with Saldana, which was played for the jury; (2) failed to object to irrelevant statements in JD1's interview with Saldana; (3) failed to object to the prosecutor's late discovery related to the prosecutor's notes from his interview with JD1; and (4) failed to object to the prosecutor's misstatements of the law during closing argument.
" '[D]eciding whether to object is inherently tactical, and the failure to object will rarely establish ineffective assistance.' " (People v. Lopez (2008) 42 Cal.4th 960, 972.)
Defendant contends Jones should have objected to the portion of JD1's recorded interview with Saldana in which JD1 expressed concern that defendant might be touching another child he drove to the daycare. JD1 identified the other child by JD2's first name. Thus, defendant asserts Jones should have objected to JD1's statement that she was concerned defendant might have molested JD2.
In the interview, JD1 explained that she reported the touchings to her grandmother because she was scared, and part of that fear concerned the possibility that defendant was touching other children, such as JD2 because defendant transported JD2 without other children being present. Saldana asked JD1 if she knew whether defendant had touched any other children. JD1 responded, "Sorry."
JD1's statement concerning the other child was admissible because it explained JD1's act of reporting defendant's conduct to JD1's grandmother. It explained that JD1 feared for herself and JD2, and thus she reported defendant's conduct. Therefore, Jones did not render ineffective assistance because the statement was admissible to explain JD1's conduct. (Evid. Code, § 1250, subd. (a)(2).)
Next, during JD1's recorded interview, she expressed her interest in singing. At the end of the interview, Saldana asked JD1 to sing a song. JD1 complied. Defendant contends Jones was ineffective for failing to object to the song being played for the jury because it likely endeared JD1 to the jury.
During JD1's recorded interview, she described how defendant touched her leg, breasts, and genital area. Given JD1's statements, if the jury were to feel sympathy or feelings of caring for the child, those feelings likely would have arisen during the child's story of her victimization. Further, the fact that JD1 was able to sing a song after telling her story of victimization may have made it appear as though JD1 was not deeply impacted by defendant's acts, e.g., she was singing rather than crying after the interview. Thus, we conclude Jones's failure to object was not prejudicial.
Next, we address the late discovery issue. When the prosecutor questioned JD1, he asked her about the duration of the touchings. When JD1 testified that the hug with defendant lasted only a "couple seconds," the prosecutor asked if she had told him, the day before, that the hug lasted approximately 30 seconds. JD1 said that was correct. Jones had not received reports related to the prosecutor's interview with JD1, but Jones did not object to the prosecutor referencing the interview.
At the hearing on defendant's motion for new trial, Jones explained that he did not object because he did not want to highlight the touchings by objecting. For example, by objecting to a discovery issue about the duration of the touching, Jones would be highlighting that the touching occurred. Jones's strategy appears to have been to keep the case simple, not assist the prosecution in supplementing its evidence or giving the prosecution a reason to reaffirm its evidence by asking further questions. This strategy permitted Jones to reasonably argue that the prosecution failed to meet its burden on the element of intent. Jones made a tactical decision to not object, and a reasonable attorney could have made that same decision. Accordingly, we conclude Jones did not render ineffective assistance on this point.
Next, defendant contends Jones rendered ineffective assistance by failing to object to the prosecutor's misstatements during closing argument. As explained ante, the first statement was accurate and the second statement was not reasonably likely to have been construed or applied in an objectionable fashion. Therefore, we conclude any error in failing to object was not prejudicial. In sum, Jones did not render ineffective assistance.
e) Communication
Defendant contends Jones was ineffective because Jones failed to clearly communicate with defendant regarding defendant testifying at trial. Unsatisfactory communication with one's attorney does not necessarily equate with ineffective assistance of counsel. (See People v. Hart (1999) 20 Cal.4th 546, 604 [" '[T]he number of times one sees his attorney, and the way in which on relates with his attorney, does not sufficiently establish incompetence.' "].) The relevant question is not whether there was full communication, but whether any lack of communication resulted in ineffective assistance. (See People v. Avalos (1984) 37 Cal.3d 216, 231 [counsel was prepared despite a perceived lack of communication].)
At the motion for new trial, Jones explained that he only would have called defendant to testify during trial in the event of "the absolute failure of Dr. Kania." Defendant testified that, prior to trial, Jones told defendant that defendant would be testifying at trial. However, after Kania testified, Jones told defendant that defendant did not need to testify. Defendant chose to follow Jones's advice and not testify.
Any miscommunication by Jones related to the conditional nature of defendant's need to testify, i.e., defendant's need to testify depended upon the results of Kania's testimony, did not result in ineffective assistance. Before Jones rested, he spoke to defendant about testifying, advised defendant that defendant did not need to testify in light of Kania's testimony, and defendant chose not to testify. Thus, the record reflects Jones communicated with defendant about defendant's testimony. As a result, we conclude there was no error.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: RAMIREZ
P. J. SLOUGH
J.