Opinion
A165342
09-13-2023
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL JUNIOR GUEVARA, Defendant and Appellant.
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. 20-SF-011305-A
Humes, P.J.
A jury convicted defendant Michael Guevara of two felony counts of infliction of corporal punishment or injury on a child, one against A. Doe, Guevara's three-year-old son (A.), and the other against R. Doe, Guevara's girlfriend's three-year-old son (R.). The trial court sentenced Guevara to four years in jail.
On appeal, Guevara's only claim is that his trial counsel rendered ineffective assistance by "opening the door to the admission of highly inflammatory evidence that the prosecutor had agreed not to admit." (Boldface omitted.) The evidence, which pertained to uncharged acts against R. and R.'s mother, likely harmed the defense. But even if we assume that counsel's actions were deficient, reversal is not warranted because it is not reasonably likely that Guevara would have obtained a better result without the evidence's introduction. Thus, we affirm.
I.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Crime Against A.
Guevara has two children with A.'s mother: A., who was born in December 2015, and A.'s older sister (sister), who was born in October 2014. Guevara and A.'s mother broke up around 2016. At the time of the crime in December 2019, Guevara lived in East Palo Alto with his mother, and A.'s mother lived with her children and her mother (maternal grandmother) in Tehama County. A., who was a few days short of his fourth birthday, and sister, who was five years old, were visiting Guevara for the holidays.
A.'s mother testified that on the afternoon of December 26, 2019, she and her boyfriend met Guevara at a Vacaville police station to pick up A. and sister, who had been with Guevara for about a week. A.'s mother and Guevara had argued over text message about the fact that her boyfriend was coming with her. After seeing her boyfriend in her car at the meeting spot, Guevara drove away with the children, and A.'s mother had to seek the police's help to retrieve them.
When the family got home to Tehama County, they opened Christmas presents, and the children went to bed. The next morning, after A.'s mother left to run errands, maternal grandmother was preparing to give A. a bath. She testified that as she helped him get undressed, "he winced like ow," and she "discovered bruising on his left leg." She asked A. "how that happened," and he said "that he got in trouble for wetting himself while he was playing with his sister, and his papa beat him with a belt." Maternal grandmother inspected the rest of A.'s body and noticed there was also "bruising on his back."
Maternal grandmother called A.'s mother, who immediately came home. Photographs of A.'s injuries that his mother took over the next few days were admitted into evidence. The photographs, which we have reviewed, show large, dark bruising running down the outside of A.'s upper left leg and across his lower back.
A.'s mother reported A.'s injuries to Tehama County authorities, and the case was eventually referred to the East Palo Alto police. A forensic interview of A. was conducted in August 2020, and a video recording of the interview was played for the jury. During the interview, A. stated that he "was playing with [his] sister and . . . [he] peed a little bit," and Guevara then "smacked [him] on [his] leg" with a belt. A. reported that his father "whooped [him] really hard" and it hurt and caused a bruise. A. also said that sister was present and "heard the whooping," though he then said that sister "got whooped on her leg" and her "leg had a . . . bruise" as well.
A. alluded to going to the hospital after Guevara hit him, but no evidence involving any resulting medical treatment was introduced.
A. was six years old when he testified at trial. He stated that he was playing "[a] really funny thing" with sister at Guevara's house when he "peed a little." When Guevara found out what had happened, "[h]e whooped [A.]" with a belt on A.'s left leg. A. testified that it hurt "[r]eally bad" and he cried. Sister also cried. A. later told his mother and maternal grandmother what had happened. He specifically denied that mother told him to lie about who had hit him.
Sister, who was then seven years old, also testified at trial. She said that she and A. were playing cars in the living room of Guevara's apartment when A. "accidentally peed himself." Guevara came home and discovered what had happened because A. had changed his pants. Guevara then "whooped on" A., by using a belt to hit A. on the leg twice. Sister testified that she did not like what Guevara did but did not try to stop him because she was afraid. She later told her mother and maternal grandmother about the incident, and she denied that her mother told her what to say about it. Maternal grandmother did, however, teach sister the word "whooped."
B. The Crime Against R.
R.'s mother met Guevara in March 2020 and dated him until that July. R., who was born in September 2016, was three years old at the time.
Guevara and his mother routinely babysat R. when R.'s mother had to work, including overnight. R.'s mother testified that her son stayed at Guevara's apartment one night in July 2020. The following afternoon, on July 23, R.'s mother arrived at the apartment to pick up R. She had brought food with her, but R. refused to eat. R.'s mother then noticed that R. had "red marks" on his forehead. Becoming suspicious, she brought R. with her to the bathroom, and he told her that Guevara had "flicked him in the forehead or hit him or something like that." R. stated that Guevara "hit him because he peed himself."
R.'s mother confronted Guevara, and the two began arguing. Guevara "was throwing things around the apartment" and not letting her leave, and he did not admit to having "done anything at all physical" to R. Eventually, she left with her son, and Guevara followed her to the car. As she strapped R. into his car seat, she noticed that he "still had urine on himself [and] on his clothing." After R.'s mother and Guevara argued for a few more minutes, he told her "not to come back there," and she drove away with R.
When R.'s mother got to her home, which was also in East Palo Alto, she undressed R. to give him a shower. She testified that she saw "marks above his butt on his back." R. told her that his head hurt, and she felt a "lump" on top of it. After bathing him, she dressed him and took him to the hospital.
R.'s mother testified that Guevara was tracking her location through Snapchat, and he messaged her to ask why she was at the hospital. She was "scared of [him] at the time and what he was going to do to [her]," so she lied and said R. had had a seizure. Guevara responded that he "had flicked [R.] on his forehead."
Photographs of R.'s injuries taken at the hospital were introduced into evidence. The photographs, which we have also reviewed, show bruising on both sides of R.'s forehead and at his hairline, as well as some redness behind one ear. He had abrasions on his upper left back, a bruise on his right upper arm, and severe bruising over a large area on his lower back. There was also a red mark on his right thigh in the shape of a handprint. The emergency medicine physician who treated R. was "concerned" that R. was the victim of "nonaccidental trauma," although an MRI and lab tests performed because of this suspicion came back normal.
R.'s injuries were reported to the East Palo Alto police, and a forensic interview of R. occurred on July 27, 2020, four days after the incident. R. stated that Guevara, whom he called "Burrito," had "whooped" him in the living room of Guevara's home. Guevara used his arm to hit R. and also pulled his hair. It was difficult for R. to answer several questions clearly, but he said that he felt "mad" when he was around Guevara.
R. was five years old when he testified at trial. He said that he remembered a time when Guevara got mad at him because he "was being bad." Guevara used his hand to hit R. on his back, arm, and leg. R. said that it hurt "a lot" and he cried. R. also testified that Guevara "pulled [his] hair sometimes." R. indicated that he talked to his mother "[a] lot of times" about what happened and she "told [him] to tell the truth," not to lie.
C. Guevara's Testimony and the Evidence at Issue on Appeal
Guevara, who testified in his own defense, denied striking A. and was not aware of A.'s ever becoming bruised while in his care. He testified that until his children turned two years old, he would spank them if "they were involved in . . . a life-or-death situation [like] . . . running into [the] street." After that age, they were "able to communicate," and he "would just put them on timeout" if they misbehaved. Guevara denied ever using physical discipline related to A.'s "potty-training or behavior around the house." Guevara testified that he never heard A. use the word "whooping" but had heard A.'s mother use it, and his "personal opinion [was] that [A.] was coached" to lie about the incident.
Guevara denied that he failed to turn the children over to A.'s mother after the holiday visit because he was upset that she brought her boyfriend with her. He testified that he drove away with the children because the agreement was maternal grandmother would pick them up, and he was "very literal about [their] court agreements." Guevara admitted that he had a December 2020 conviction for violating a restraining order A.'s mother had against him, and he also admitted to a decade-old felony conviction for evading a police officer.
As for R., Guevara denied ever striking or discipling him. Guevara was not aware of any injuries to R. when the boy left Guevara's home on July 23, 2020. According to Guevara, R.'s mother lied in numerous respects about the day she discovered R.'s injuries. For example, Guevara denied that R. stayed overnight at his apartment on July 22 and denied ever being alone with R. the following day.
The defense implied that like A.'s mother, R.'s mother also made up the story about her son's injuries. According to Guevara, he and R.'s mother broke up because "[s]he crashed [his] car in June, and she became obsessed with [him]" and would show up at his apartment without warning. R.'s mother admitted in her testimony that she became aware of the "accusation" involving A. while she was still dating Guevara, and after they broke up she reached out to A.'s mother about it. Guevara agreed that he told R.'s mother about A.'s accusation, and he testified that the women knew each other by name because they once fought over the phone.
The evidence that is the subject of Guevara's claim of ineffective assistance of counsel was mostly elicited from Guevara and involved the final time he had contact with R. Before trial, the prosecutor filed a motion in limine to admit evidence of "an August 12, 2020 incident where [Guevara] picked up [R.] from his school without parental permission, coerced [R.'s mother] into getting into her car by saying he would kill her otherwise," and "punched [R.'s mother] in the face." The motion argued that the evidence was admissible under Evidence Code section 1109 to prove prior acts of child abuse and domestic violence. Guevara's trial counsel objected because the incident had not been disclosed, and the trial court directed the parties to "meet and confer about that discovery issue." After this off-the-record meeting occurred, the prosecutor withdrew the motion in limine without further explanation, and the court did not rule on it.
At the end of Guevara's direct examination, his trial counsel asked when Guevara's "last contact" with R. was, and Guevara stated that it was on August 12, 2020. Counsel then asked how it was that Guevara had contact with R. that day, and Guevara responded, "His mother asked me to pick him up from school." Counsel stated he had no further questions.
On cross-examination, after confirming that by August 12 Guevara was aware he was accused of abusing R., the prosecutor asked, "Please, please, please explain why you would go pick up the child of someone who accused you of abusing her child and your relationship was over and she is obsessed and showing up at your house, why would you go do that for her?" Guevara responded that he and R.'s mother were still friends, one of her family members had recently passed away, and she told him "she wasn't able to pick up the child at that time." Guevara admitted he was aware that R.'s mother reported that on August 12 he picked R. up without her permission, threatened to kill her, and physically assaulted her, but he denied these allegations.
On redirect, Guevara's trial counsel asked Guevara whether he was "ever convicted for anything coming out of [the August 12] incident" or had "ever been convicted of anything" involving abuse or neglect of any children, and Guevara said he had not been. In its rebuttal case, the prosecution recalled the investigating police officer, who indicated there was an ongoing "criminal case . . . in Alameda County" involving the August 12 incident.
In closing argument, the prosecutor argued that Guevara was lying and trying to make himself look good to avoid being convicted. The prosecutor offered the August 12 incident as an example, pointing out that Guevara testified he did not "have a conviction for that case in Alameda" but "left out the fact that that case is pending." After summarizing R.'s mother's allegations about that incident, the prosecutor argued that the pending case gave Guevara "an incentive to not have a conviction here because that would come in in the next trial."
In the defense's closing argument, Guevara's trial counsel noted that Guevara did not have to testify but "felt it was important for [the jury] to hear from him," even though it meant "subject[ing] himself to crossexamination." As to the August 12 incident, counsel argued that even though the prosecutor "would encourage [the jury] to presume it to be true[,] . . . we don't know that. Nothing has been decided. It's still pending."
D. The Verdicts and Sentencing
Guevara was charged with two felony counts of infliction of corporal punishment or injury on a child. Numerous aggravating circumstances supporting the upper term for both counts were also alleged. The jury convicted Guevara of both counts and found true the aggravating circumstances that the crimes involved (1) great violence, (2) violent conduct indicating a serious danger to society, (3) taking advantage of a position of trust, and (4) particularly vulnerable victims. The trial court denied probation and sentenced Guevara to a total term of four years in jail, composed of the midterm of four years for the crime against R. and a concurrent term of four years for the crime against A.
Both charges were brought under Penal Code section 273d, subdivision (a). The aggravating circumstances were alleged under Penal Code section 1170, subdivision (b)(2), as a result of Senate Bill No. 567 (20212022 Reg. Sess.), which had recently taken effect. That legislation amended section 1170 to prohibit imposing the upper term unless aggravating circumstances are admitted or proven beyond a reasonable doubt. (People v. Flores (2022) 75 Cal.App.5th 495, 500.)
II.
DISCUSSION
A. General Legal Standards
A criminal defendant has the right to effective assistance of counsel under the Sixth Amendment of the United States Constitution and article I, section 15 of the California Constitution. (Strickland v. Washington (1984) 466 U.S. 668, 687; In re Long (2020) 10 Cal.5th 764, 773.) To prevail on a claim of ineffective assistance of counsel, a defendant must show "that counsel's performance was deficient," such that "counsel was not functioning as the 'counsel' [constitutionally] guaranteed," and "the deficient performance prejudiced the defense." (Strickland, at p. 687; People v. Centeno (2014) 60 Cal.4th 659, 674.) Thus, a defendant must demonstrate both that (1) "counsel's performance . . . fell below an objective standard of reasonableness under prevailing professional norms" and (2) there is "a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different." (People v. Mai (2013) 57 Cal.4th 986, 1009.)
In evaluating a claim of ineffective assistance of counsel, "a reviewing court defers to counsel's reasonable tactical decisions, and there is a presumption counsel acted within the wide range of reasonable professional assistance." (People v. Mai, supra, 57 Cal.4th at p. 1009.) "On direct appeal, a conviction will be reversed for ineffective assistance only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation." (Ibid.)
A reviewing court need not determine whether counsel's performance fell below professional standards if the defendant fails to demonstrate "prejudice . . . 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, which . . . will often be so, that course should be followed." (Strickland v. Washington, supra, 466 U.S. at p. 697.) The defendant" 'must establish "prejudice as a 'demonstrable reality,' not simply speculation as to the effect of the errors or omissions of counsel," '" and" '[t]he incompetence must have resulted in a fundamentally unfair proceeding or an unreliable verdict.'" (In re Cox (2003) 30 Cal.4th 974, 1016; In re Hardy (2007) 41 Cal.4th 977, 1019.)
B. The Claim of Ineffective Assistance of Counsel Lacks Merit.
Guevara contends that his trial counsel rendered ineffective assistance by asking him about seeing R. on August 12, 2020, since the question opened the door for the prosecution to question Guevara about the uncharged acts R.'s mother accused him of committing that day. We are not persuaded.
To be sure, the wisdom of the decision to elicit testimony about the August 12 incident is open to question. As Guevara observes, evidence of uncharged acts is often "highly inflammatory," because"' "[t]he natural and inevitable tendency"' is to give excessive weight to [it] and either allow it to bear too strongly on the present charge, or to take the proof of it as justifying a conviction irrespective of guilt of the present charge." (People v. Edelbacher (1989) 47 Cal.3d 983, 1007; People v. Hendrix (2013) 214 Cal.App.4th 216, 238.) The prior conduct alleged here potentially amounted to serious crimes, including attempted kidnapping and criminal threats. Indeed, the evidence ultimately admitted included not just the substance of the alleged conduct but also the fact that there was a pending criminal case against Guevara. Defense counsel had successfully caused the prosecution to abandon the motion in limine to admit the evidence at issue, and it is far from clear that the prosecutor could have nonetheless cross-examined Guevara about the August 12 incident-at least without a further ruling from the trial court. Thus, it is not obvious why counsel would bring up the incident in the first instance.
After arguing at length that the evidence was admissible under Evidence Code sections 1109 and 352, the Attorney General claims "it is possible that trial counsel determined from [the off-the-record discovery] conference that the August 12 incident was admissible and opted to elicit the damaging testimony to manage its presentation." But whatever happened at the conference, by the time Guevara testified his counsel knew the August 12 incident was not part of the prosecution's case-in-chief. And as we have said, we are not persuaded that the prosecutor had carte blanche to cross-examine Guevara about the topic regardless of whether defense counsel asked about it on direct. Finally, counsel asked Guevara only two questions about August 12, and Guevara's responses did not hint at R.'s mother's allegations. Thus, it does not appear that counsel's reason for bringing up the subject first was to manage its presentation.
Nonetheless, Guevara's trial counsel could have had a tactical basis for eliciting evidence about the August 12 incident, despite the fact that on balance it harmed the defense. "Even where defense counsel may have' "elicit[ed] evidence more damaging to [the defendant] than the prosecutor was able to accomplish," '" courts are" 'reluctant to second-guess counsel' [citation] where a tactical choice of questions led to the damaging testimony." (People v. Williams (1997) 16 Cal.4th 153, 217; see People v. Musselwhite (1998) 17 Cal.4th 1216, 1260-1261 [no ineffective assistance where defense counsel took "informed if calculated risk" to elicit evidence].) We agree with the Attorney General that counsel could have decided it was beneficial to introduce evidence that R.'s mother allowed Guevara to have contact with R. weeks after the child abuse occurred, because it tended to suggest she did not think Guevara was responsible for R.'s injuries. Counsel might also have thought that, even if the prosecution did elicit R.'s mother's allegations about the August 12 incident on cross-examination, they were sensational enough to actually bolster the theory that R.'s mother was lying because she was irrationally upset after she and Guevara broke up. The decision may have been a poor one, but we do not judge tactical errors"' "in the harsh light of hindsight." '" (People v. Hinton (2006) 37 Cal.4th 839, 876.)
Ultimately, we need not decide whether defense counsel's performance fell below prevailing professional standards, because there is no reasonable likelihood that Guevara would have obtained a better result had the evidence about the August 12 incident not been elicited. Guevara argues that "the evidence of guilt was not overwhelming" because both counts depended "primarily on the credibility of a young child." But A.'s and R.'s injuries were well-documented, and they were noticed right after both children had been in Guevara's care. No reasonable juror could have viewed the photographs of the children's injuries and believed they were accidental, and there was no plausible alternative perpetrator or perpetrators.
Parallels between the two acts of child abuse further suggested that Guevara was responsible for A.'s and R.'s injuries. For example, A. and sister agreed that Guevara hit A. after he wet himself, and R.'s mother testified that when she picked up her son he had urine on his clothes. All the children described Guevara as being angry about perceived misbehavior and repeatedly hitting A. and R., who had similar bruising. We recognize that A. and R. were very young when the crimes occurred, and their testimony about it understandably contained holes and contradictions. But their testimony was generally consistent with the children's reports to their caregivers and their forensic interviews, and it was corroborated by their injuries.
Guevara also emphasizes that the prosecutor relied on evidence about the August 12 incident in closing argument, "which could have only increased the risk of prejudice from the already 'highly inflammatory and prejudicial' evidence." But the prosecutor did not claim that this evidence proved Guevara's guilt or even that the alleged conduct actually occurred, arguing only that the other pending criminal case gave Guevara a motive to lie. Indeed, the prosecutor was able to rely on other criminal behavior to make the same argument, as Guevara admitted to two prior convictions. This meant that even for impeachment purposes the August 12 incident was not crucial. Finally, Guevara's trial counsel ably responded to the prosecutor's argument, emphasizing that the truth of R.'s mother's allegations about the incident had not yet been decided. In sum, the admission of evidence about the August 12 incident was harmless, and Guevara's ineffective-assistance claim fails.
III.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Banke, J. Bowen, J. [*]
[*]Judge of the Superior Court of the County of Contra Costa, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.