Opinion
F075608
06-15-2018
In re H.Z., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. H.Z., Defendant and Appellant.
Kristen Owen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. JW137264-00)
OPINION
THE COURT APPEAL from an order of the Superior Court of Kern County. Lorna H. Brumfield, Judge. Kristen Owen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Poochigian, J. and Smith, J.
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The court adjudged appellant H.Z. a ward of the court (Welf. & Inst. Code, § 602) after it sustained allegations charging him with felony sexual battery (Pen. Code, § 243.4, subd. (a)) and misdemeanor false imprisonment (§ 236). On appeal, appellant contends: (1) some of his statements were admitted in violation of Miranda; (2) he was denied the effective assistance of counsel; and (3) the court violated section 654 when it calculated his maximum period of confinement (MPC). We affirm.
All further statutory references are to the Penal Code.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). Miranda requires that a criminal suspect be admonished of certain specified rights whenever a suspect is "taken into custody or otherwise deprived of his freedom of action in any significant way." (Id. at p. 444.)
FACTS
On March 29, 2017, 14-year-old appellant worked at the student store of a middle school in Bakersfield. At appellant's jurisdictional hearing, 14-year-old A.R., testified that she stopped at the student store that day during the lunch period. After appellant was alone with A.R., appellant closed the door and repeatedly exhorted her to orally copulate him, but she refused. Appellant also repeatedly sexually assaulted A.R. by touching her breasts and genitals under her clothing and by forcing her to touch his genitals. Throughout the ordeal, which lasted through the school's seventh period, appellant prevented A.R. from leaving several times. During her last attempt to leave, appellant got in front of A.R., blocking her path to the door, and asked her, "Are we good?" A.R. replied that they were and appellant raised his hand as if he wanted A.R. to give him a "high five." A.R. gave appellant a "high five," left the store, and went to her eighth period class.
The student store was located in a small room that was 12 feet by six feet.
A.R. told appellant they were "good" and gave appellant a "high five" because she was afraid he would not let her leave if she did not. --------
A.R. did not report the incident to anyone that day. However, the next day when she asked a friend for advice, the friend took her to a yard aide and later that day she spoke with a sheriff's deputy.
Kern County Sheriff's Deputy Jesus Cabral testified that on March 30, 2017, he spoke with A.R. and her mother at the school. He then spoke with appellant, his mother, and his sister before speaking with appellant in Principal Wendy Burkhead's office with only Burkhead present. Cabral told appellant he was investigating some allegations and he asked appellant to tell him his side of the story. Defense counsel then objected on Miranda grounds.
After a break, the court held a hearing on the Miranda issue during which Cabral testified that prior to interviewing appellant, he obtained permission from his mother to speak with him. Although Cabral did not tell appellant he was under arrest or detained, he also did not tell him that he was free to leave or that he did not have to answer any questions. Cabral did not advise appellant of his Miranda rights before speaking with him because he was still trying to determine what "was going on." However, at that point Cabral was already aware of the serious allegations of sexual misconduct by appellant from having spoken to A.R. and the principal.
After Cabral had been examined by the attorneys, the prosecutor advised the court that Cabral interviewed appellant twice and that he read appellant his Miranda rights prior to the second interview. After some discussion, the court stated that it did not believe the prosecutor had met her "burden of proof" as to appellant's pre-Miranda statements and that it would conduct a hearing on the admissibility of appellant's post-Miranda statements. However, defense counsel stated that he did not have any objection to appellant's post-Miranda statements and the court allowed the prosecutor to continue her direct examination of Cabral with respect to those statements.
Cabral then testified that after he finished his first interview with appellant, he let him visit with his mother while he did some research and checked on some things. When he returned 15 to 25 minutes later, appellant was in Burkhead's office eating lunch. Cabral told appellant's mother that he needed to speak with appellant again and she agreed.
Cabral advised appellant of his Miranda rights and obtained a waiver from him before he, again, interviewed appellant in Burkhead's office, with only Burkhead present. Cabral told appellant he just wanted to clarify a couple of things and he asked appellant to briefly tell him what happened the day of the assault. During the ensuing narrative, appellant admitted engaging in most of the conduct attributed to him by A.R. Cabral estimated the first interview of appellant lasted 30 to 40 minutes and the second interview approximately 25 minutes. Defense counsel did not cross-examine Cabral regarding appellant's post-Miranda statements.
Burkhead testified she checked the video surveillance footage recorded on the day of the assault and it showed appellant and A.R. entering the student store, and A.R. subsequently exiting, followed by appellant less than 30 seconds later. Burkhead also checked attendance records for that day, which showed that appellant and A.R. both missed seventh period. After speaking with A.R. and some student store workers, Burkhead brought appellant to the office and spoke with him.
Appellant did not testify or present any other evidence.
During closing arguments, defense counsel argued that the evidence proved only "an awkward, perhaps socially inept attempt at sexual contact with the victim." In support of this argument, counsel asserted that A.R. never tried to open the door and leave until the incident was over, and she did not attempt to scream for help or get the attention of a passerby. Defense counsel also noted that after the incident, A.R. did not run and report the incident to school personnel or her mother and that there was no corroboration of A.R.'s testimony that she was crying or trembling during eighth period. Thus, according to defense counsel, there was reasonable doubt whether or not appellant's conduct rose to the level necessary to find the allegations against him true.
In finding the allegations of the petition true, the court stated that it did not consider any of appellant's "pre-Miranda statements."
DISCUSSION
The Miranda and Ineffective Assistance of Counsel Claims
Appellant contends that because the statements he made during his first interview with Cabral resulted from a custodial interrogation during which he was not read his Miranda rights, his admissions during the second interrogation should have been suppressed. (See Missouri v. Siebert (2004) 542 U.S. 600.) He further contends he was denied the effective assistance of counsel by defense counsel's failure to object to the admission of his post-Miranda statements. We disagree.
Appellant forfeited his claim that the court should have suppressed the statements he made during this second interrogation by Cabral by defense counsel's failure to object to their admission. (People v. Medina (1995) 11 Cal.4th 694, 752.) Moreover, there is no merit to appellant's ineffective assistance of counsel claim.
"To prevail [on a claim of ineffective assistance of counsel], [a defendant] must establish his counsel's representation fell below an objective standard of reasonableness and there is a reasonable probability that, but for counsel's deficient performance, the result of the trial would have been different." (People v. Mesa (2006) 144 Cal.App.4th 1000, 1007 (Mesa).) " ' "The burden of sustaining a charge of inadequate or ineffective representation is upon the defendant. The proof ... must be a demonstrable reality and not a speculative matter." ' " (Ibid.)
"In considering a claim of ineffective assistance of counsel, it is not necessary to determine ' "whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. ... If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." ' [Citation.] It is not sufficient to show the alleged errors may have had some conceivable effect on the trial's outcome; the defendant must demonstrate a 'reasonable probability' that absent the errors the result would have been different." (Mesa, supra, 144 Cal.App.4th at p. 1008.)
Had appellant not forfeited his claim of Miranda error, we would review any such error "under the 'harmless beyond a reasonable doubt' standard propounded in Chapman v. California (1967) 386 U.S. 18, 24." (People v. Aguilera (1996) 51 Cal.App.4th 1151, 1166.) "However, the [ ] 'reasonable probability' standard applies to the evaluation of a Sixth Amendment claim of ineffective assistance of counsel, even when defense counsel's alleged error involves the failure to preserve the defendant's federal constitutional rights." (Mesa, supra, 144 Cal.App.4th at pp. 1008-1009.)
A.R. testified in a graphic and compelling manner that appellant repeatedly sexually assaulted her in the student store and that on multiple occasions he prevented her from exiting. Her testimony was corroborated, in part, by video footage that showed appellant and A.R. entering the student store and, afterwards, A.R. exiting the store followed by appellant, and by school records that showed A.R. and appellant did not attend seventh period. Appellant, however, did not testify or present any evidence that contradicted A.R.'s testimony. Instead, defense counsel argued only that certain circumstances like A.R.'s failure to scream for help raised a reasonable doubt whether appellant's conduct was sufficient for the court to find true the allegations against him. In view of these circumstances, it is not reasonably probable appellant would have obtained a more favorable result even if defense counsel had objected to the statements appellant made during the second interrogation and convinced the court to exclude them. (Cf. People v. Flood (1998) 18 Cal.4th 470, 505, 507 [error in failing to instruct on peace officer element of offense harmless beyond a reasonable doubt, in part, because of defense's failure to present evidence regarding element and to dispute the prosecution's evidence regarding issue]; People v. Mil (2012) 53 Cal.4th 400, 414 [instructional error involving multiple elements of offense will be deemed harmless where each element was undisputed, defense was not prevented from contesting any of omitted elements, and overwhelming evidence supports omitted elements].) Accordingly, we reject appellant's ineffective assistance of counsel claim because he has not shown that he was prejudiced by defense counsel's allegedly deficient performance.
The Section 654 Issue
On May 8, 2017, the court placed appellant on probation and it committed him to the Kern Crossroads Facility. The court also set appellant's MPC at four years four months by using a four-year term for appellant's sexual battery offense and a four-month term (one-third the one-year term) for appellant's false imprisonment offense.
Appellant contends the court violated section 654 when it used a four-month term for his false imprisonment offense in calculating his MPC because he committed that offense as part of an indivisible course of conduct that was "associated" with this sexual battery offense. Respondent cites People v. Saffle (1992) 4 Cal.App.4th 434 (Saffle) to contend the false imprisonment offense was divisible from the sex offense and could be punished separately because it continued after the sexual offense was completed and appellant committed the false imprisonment offense in an attempt to dissuade A.R. from reporting the crime. We agree with respondent that the court did not violate section 654 in calculating appellant's MPC.
Section 654 precludes multiple punishments for a single indivisible course of conduct punishable under more than one criminal statute. Whether a course of conduct is indivisible depends on the actor's intent and objective. If all of the offenses are incident to one objective, the court may punish the defendant for any one of the offenses, but not more than one. (People v. Cleveland (2001) 87 Cal.App.4th 263, 267.) Section 654 applies in juvenile proceedings in calculating the MPC. (See In re M.S. (1995) 10 Cal.4th 698, 727.) Section 654 error is not waived by failing to object in the trial court. (People v. Hester (2000) 22 Cal.4th 290, 295.)
"[I]t is well settled that section 654 applies not only where there was but one act in the ordinary sense, but also where there was a course of conduct which violated more than one statute but nevertheless constituted an indivisible transaction. [Citation.] Whether a course of conduct is indivisible depends upon the intent and objective of the actor. [Citation.] If all the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one. [Citation.] For example, the defendant in Neal [v. State of California (1960) 55 Cal.2d 11], who attempted to murder a husband and wife by throwing gasoline into their bedroom and igniting it, could not be punished for both arson and attempted murder because his primary objective was to kill, and the arson was the means of accomplishing that objective and thus merely incidental to it. [¶] On the other hand, if the evidence discloses that a defendant entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for the independent violations committed in pursuit of each objective even though the violations were parts of an otherwise indivisible course of conduct." (People v. Perez (1979) 23 Cal.3d 545, 551.) "The resolution of this question is one of fact and the trial court's finding will be upheld on appeal if it is supported by substantial evidence." (People v. Avalos (1996) 47 Cal.App.4th 1569, 1583.)
In People v. Martinez (1980) 109 Cal.App.3d 851 (Martinez), the defendant was convicted of assault with intent to commit rape and false imprisonment by use of force or violence. The defendant assaulted the victim, dragged her under a bridge and after he desisted from his attempted rape, held her for a few moments in an attempt to convince her not to complain to police. The court held that this action involved the same criminal event and that section 654 barred punishment for the false imprisonment conviction. (Martinez, at p. 858.)
In Saffle, after the defendant sexually assaulted the victim, someone knocked on the door of the apartment where the assault occurred. The defendant would not allow the victim to answer the door and, while holding a knife, he told her that if she told anyone, he would kill her and her children and "make it worth his while to do 20 years." (Saffle, supra, 4 Cal.App.4th at p. 437.)
In Saffle this court held that section 654 did not bar separate punishment for false imprisonment and several sex offenses. (Saffle, supra, 4 Cal.App.4th at p. 440.) Although this court found the facts in Saffle somewhat analogous to Martinez, we distinguished Martinez, stating:
"[u]nlike the victim in Martinez, [the victim in Saffle], after the sexual offenses were completed, was subjected to threats of future bodily injury to herself and her children by the knife-wielding Saffle. While lacking [ ] overt gratuitous violence ..., the conduct displayed by Saffle was, in some ways, more fraught with terror and implicit violence. We perceive a critical distinction between a situation (Martinez) where a person is held for a few moments in an attempt to convince her not to complain to the police and a situation where a victim is restrained while being threatened with future violence to herself and her children if she reports the crimes.
"Here, once the sexual offenses were completed, Saffle's objective changed. He was no longer interested in fulfilling a sexual objective; he was seeking to prevent [the victim] from reporting the incident. This act, constituting an attempt to dissuade a victim from reporting a crime, under the attendant circumstances, could have been separately charged as a violation of section 136.1, subdivisions (a)(2) and (c)(1)." (Saffle, supra, 4 Cal.App.4th at pp. 439-440, fn. omitted.)
Here the trial court's determination is supported by substantial evidence. During A.R.'s ordeal, appellant repeatedly sexually assaulted her and blocked her attempts to leave. Before finally letting her go, appellant asked A.R. if they were "good" and when she said they were, he put his hand up so she could confirm her answer by giving him a "high five." The court could reasonably find from these circumstances that appellant's question, whether they were "good," while preventing her from leaving, carried with it an implied threat of retribution aimed at preventing A.R. from reporting the assault. Thus, this case is more like Saffle than Martinez because even though appellant did not explicitly threaten A.R. with future bodily injury, his statement and action could reasonably suggest a separate intent from the underlying crime. Further, the court could also have found that like the defendant's conduct in Saffle, appellant's conduct constituted an attempt to dissuade a witness for which he could have been separately charged. Thus, we conclude that the court did not violate section 654 when it added a four-month term to appellant's MPC based on his adjudication for false imprisonment.
DISPOSITION
The order is affirmed.