Opinion
A150188
06-28-2018
THE PEOPLE, Plaintiff and Respondent, v. RAFAEL GUTIERREZ LARA, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 5-160870-2)
Appellant Rafael Lara was convicted by a jury of second degree robbery (Pen. Code, § 211), and sentenced to a four-year prison term. Appellant contends this conviction must be reversed because he was denied the effective assistance of counsel at trial. Appellant repeats and supplements this claim in a petition for writ of habeas corpus, case No. A153454, which we consider along with this appeal. Here we affirm the judgment. By separate order filed this date, we have denied appellant's writ petition.
Statutory references are to the Penal Code, unless otherwise stated.
I. STATEMENT OF FACTS
A. The Events of March 18, 2016
Gonzalo Delatorre was managing a work crew at a vacant boarded up duplex on Maricopa Avenue in Richmond when he had several encounters with appellant. Delatorre's company had been retained by the property owner to clean out garbage and do yard work, and that morning Luis Castillo and Manuel Herrera were working at the property while Delatorre attended to other matters. However, sometime between 9:00 and 10:00 a.m., Delatorre went to the Maricopa duplex because Castillo called him and reported that they suspected there was an intruder on the property. Delatorre saw appellant exit the top unit of the building and told him to leave, which he did. Appellant did not seem angry, no harsh words were exchanged, and there was no physical altercation.
Later that day, Castillo called Delatorre again and said his drill was missing. Delatorre returned to the property, and helped look for the drill for around 30 minutes, but to no avail. Then Delatorre and Castillo walked down Maricopa Avenue, where they saw patrol cars about a block and a half away. Richmond Police Officer John Ecker had been dispatched to the address of that vacant home in response to a report that someone was trespassing. When Delatorre and Castillo arrived, Ecker was talking to appellant and other individuals, who were sitting on a brick ledge in the front yard. Delatorre recognized appellant as the man who had been in the Maricopa duplex that morning and asked Ecker to search for their missing drill. Ecker found the drill among many items scattered inside the home and yard, and returned it to Delatorre.
After they recovered the drill, Delatorre and Castillo went back to work at the duplex. Sometime that afternoon, appellant also returned to the duplex. Appellant looked "very angry" as he approached Delatorre and began punching him with a closed fist, hitting him in the face four or five times. Delatorre attempted to defend himself by covering his face with his hands, but he did not try to hit appellant back because he was scared, confused, and disoriented. After appellant stopped hitting Delatorre, he took a weed eater and a leaf blower that were on the front lawn, approximately 10 feet away from where Delatorre was standing in the driveway. Delatorre did not attempt to stop him because he was still afraid and disoriented. Appellant put the tools in a cart that was attached to his bike and rode away.
B. Procedural Background
Because appellant contends he was denied the effective assistance of counsel at trial, we preface our discussion with a summary of the pertinent trial court proceedings.
1. Preliminary Hearing Testimony
Two witnesses testified at appellant's May 2016 preliminary hearing, Delatorre and Officer Ecker. Delatorre testified that when appellant returned to the Maricopa duplex the second time, he seemed angry and upset and he said that "he believed—well, he mentioned that um, we had called the cops on him over a drill, which we [had] not." He proceeded to punch Delatorre multiple times. Then, "immediately after punching" Delatorre, he took the leaf blower and weed eater, which were on the ground approximately 8 to 10 feet away, put them on his bike, and left. Delatorre testified that he had mixed emotions during the encounter—he was scared, baffled, and confused. Prompted by the prosecutor, Delatorre agreed that he was "so scared that it stopped [him] from keeping [his] property," that appellant was bigger than Delatorre, and that Delatorre did not know if he had a weapon. Delatorre was very confused by what had happened and so "fear took over." Delatorre also confirmed that he believed appellant would hurt him again if he tried to stop him from taking his property.
Officer Ecker testified that on the afternoon of March 18, 2016, he was dispatched to an address on Maricopa, where he detained appellant and other individuals for trespassing. While Ecker was talking with the detained individuals, Delatorre and Castillo approached, pointed at appellant, and said that he had taken their drill. They did not see him take it, but believed he had because he had been at the duplex earlier that day. Ecker found the drill in the vacant house where appellant and the others had been detained. Ecker returned the drill to Delatorre and released appellant from the scene. A few hours later, he responded to a report of a robbery at the Maricopa duplex, where he made contact with Delatorre, who reported that appellant approached Delatorre, began punching him, and "took his weed eater and blower and fled the location."
2. Order Excluding Evidence that Appellant Took the Drill
Prior to trial, the defense made a motion to exclude evidence of an alleged theft of a drill by appellant. Defense counsel argued the victims who told Officer Ecker that they believed appellant took the drill had no personal knowledge and their speculation regarding appellant's involvement should be excluded under Evidence Code section 352. The prosecutor objected that evidence of the prior theft was relevant to provide context about the relationship between the victims and appellant and "to provide background for the motivation for this incident, for how they could ID the Defendant, [and] for the interaction that takes place later." During argument on this motion, defense counsel clarified that she did not object to testimony that appellant had been seen at the duplex earlier that day, but rather to the introduction of testimony that appellant took the drill, because the witnesses who made those accusations were speculating and Officer Ecker's report showed that the police were unable to determine who took the drill.
At the conclusion of the hearing, the court made the following ruling: "What I will do is permit admission of evidence of the fact that a drill was missing in the morning, the Defendant and others were present, and that the drill was found in the other house where the Defendant and others were squatting apparently. [¶] I will exclude any reference to speculation by any person that the Defendant was the one that took the drill because it is speculation, but I think excluding the entire morning incident is inappropriate for several reasons. [¶] First, it does at least arguably provide motivation for the Defendant to come back and attack the alleged victim in the afternoon because he was angry that the victim reported the theft of the drill in the morning. [¶] Secondly, in my view it gives the jury an incomplete description of all the relevant events of that day, and when you do that you necessarily withhold the truth from a jury and give them a partial or misleading impression of circumstances that led to the alleged conduct." The court also stated that it would instruct the jury that there was no allegation or charge that appellant took the drill, and that evidence about that matter was presented to "put in context the events of the afternoon, particularly the Defendant's statements referring to the fact the victim called the police in relation to the drill." The court believed this evidence was "essential to understand the Defendant's motivation and to understand conduct."
3. Pertinent Trial Testimony
At appellant's trial, Delatorre testified that when appellant showed up at the Maricopa duplex for the second time on March 18, 2016, Delatorre knew immediately that appellant was angry "[b]y the look in his face and the way he conducted himself." But during his direct examination, Delatorre did not testify that appellant said anything before punching him in the face. During cross-examination, defense counsel asked this question: "And there were words exchanged between the two of you, correct—or words that [appellant] said to you, correct?" Delatorre confirmed this statement was correct, but there was no testimony about what appellant said.
During his direct testimony, Delatorre testified that he became afraid as soon as appellant approached him in the driveway of the Maricopa duplex on the afternoon of March 18, 2016. Appellant was bigger and taller than him and Delatorre did not know how appellant was "going to treat the situation." When appellant started punching him, Delatorre could see his coworkers about 8 to 10 feet away, but they did not intervene, and he did not ask them for help because he "didn't want to involve them in that situation."
Under cross-examination, Delatorre testified that after appellant stopped hitting him and started to walk away, Delatorre turned away from appellant to call the police on his cell phone. When he turned back around, he saw appellant pick up the tools and put them in his bike cart and ride away. Under redirect, Delatorre elaborated further, testifying that when he was using his phone he could still see appellant, who proceeded to pick up the tools and leave the property. Then Delatorre stated: "Right after he hit me, he was walking towards his bicycle, and then he made a turn back to the tools. He grabbed them, and he left."
During the trial, two witnesses made statements that violated the in limine order excluding speculation about who took the drill. When Delatorre was asked why he and Castillo walked down Maricopa Avenue when they were searching for the drill, he testified that they suspected appellant had taken the drill. The trial court struck this testimony and ordered the jury not to consider it. Later in the trial, Officer Ecker testified that when Delatorre and Castillo arrived at the property where appellant and the others were being detained for trespassing, they told Ecker "that they believed [appellant] had stolen a drill." Again, the court struck this testimony and instructed the jury not to consider it.
Outside the presence of the jury, the defense moved for a mistrial based on the violations of the pretrial order. Denying that motion, the court found: evidence about the drill was relevant and admissible, with the exception of evidence that the victims believed appellant stole the drill; the in limine ruling was violated twice, but the violations were inadvertent; and the jury could and would follow the court's instruction not to consider the stricken testimony.
4. Closing Arguments
The prosecutor argued that the evidence established that on the morning of March 18, 2016, appellant took Castillo's drill, and later that day he returned to the Maricopa duplex and committed a robbery by forcibly taking two other tools. The prosecutor opined that when appellant tried to take the drill without being noticed his plan backfired, so the second time he tried to take tools, he "chose to use violence and intimidation to get what he wanted, and that's what he did." The prosecutor argued that appellant was guilty of robbery because he punched Delatorre in the face multiple times, and then "immediately" took the two tools, put them in his bike, and left the scene.
During her closing, defense counsel argued that the only disputed issue was whether Delatorre's property had been taken by force or fear, and the prosecution failed prove this element of the robbery charge because "there clearly was a break between the assault itself and the actual taking of the tools." Defense counsel highlighted witness testimony that after appellant stopped punching Delatorre there was a period of respite while Delatorre called the police and appellant walked toward his bike, but then turned back and went and picked up the tools. During that post-assault period, counsel argued, the undisputed evidence showed that appellant did not use force to take the tools, issue any verbal threats or make any physical move toward Delatorre or his coworkers. Defense counsel concluded that the prosecutor's failure to establish the force or fear element of robbery meant the jury could find appellant guilty of grand theft, but not of robbery.
On rebuttal, the prosecutor argued that the force or fear element of robbery requires proof of the use of either force or fear and in this case, no matter how "you spin the event," appellant used force, fear, or both. The prosecutor chastised the defense for focusing only on the moment when appellant took the tools. She pointed out that appellant had just beaten Delatorre, and argued that appellant took advantage of the fear that Delatorre was still experiencing and the "atmosphere of intimidation that he had just created by using violence to take those tools right in front of three people." These circumstances demonstrated that appellant used both force and fear to take the tools. Furthermore, even if the jury had doubt about whether the assault was connected to the robbery, appellant created an "atmosphere" of fear and intimidation, which he used to accomplish the theft, which was "by definition a robbery." Finally, the prosecutor reiterated that appellant assaulted Delatorre, arguing that when somebody goes out and scares people, and hurts them and uses force to take somebody else's property that is a robbery, and that is what appellant did in this case.
II. DISCUSSION
A. Issues on Appeal
Appellant contends he was denied the effective assistance of counsel because his trial counsel (1) adopted a strategy that culminated in an invalid defense to the robbery charge and precluded an otherwise viable defense, and (2) failed to object when the prosecutor committed misconduct during closing argument.
"A criminal defendant is guaranteed the right to the assistance of counsel by both the state and federal Constitutions. [Citations.] 'Construed in light of its purpose, the right entitles the defendant not to some bare assistance but rather to effective assistance.' [Citation.]" (People v. Wharton (1991) 53 Cal.3d 522, 575, italics omitted.) "It is defendant's burden to demonstrate the inadequacy of trial counsel. [Citation.]" (People v. Lucas (1995) 12 Cal.4th 415, 436 (Lucas).)
To carry this burden, " ' "a defendant must first show counsel's performance was 'deficient' because his 'representation fell below an objective standard of reasonableness . . . under prevailing professional norms.' [Citations.]" ' " (Lucas, supra, 12 Cal.4th at p. 436; see also People v. King (2010) 183 Cal.App.4th 1281, 1298 (King).) "In reviewing counsel's performance, we 'exercise deferential scrutiny.' [Citations.]" (King, at p. 1298.) We "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.]" (Lucas, pp. 436-437.) " ' "Second, [the defendant] 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.' " ' [Citation.]" (Id. at p. 436.)
B. The Defense to Robbery Was Not Ineffective Assistance
Appellant contends that his trial counsel's defense strategy constituted ineffective assistance under People v. Diggs (1986) 177 Cal.App.3d 958, 970, which states that "where counsel fails to argue in support of evidence showing a lawful defense, and instead argues a theory not recognized as a lawful defense, and upon which the jury will receive no instructions, counsel has incompetently deprived his client of a potentially meritorious defense and has effectively conceded his client's guilt."
Although appellant's analysis is confusing, he identifies three decisions by his trial counsel that were allegedly deficient: (1) selecting an invalid defense; (2) moving to exclude (or failing to present) evidence that was favorable to appellant; and (3) failing to develop the potentially meritorious defense that appellant was mad at Delatorre and hit him because he thought Delatorre called the police about the missing drill.
First, appellant's trial counsel did not present an invalid defense. "Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." (§ 211.) The elements of robbery are: "(1) defendant took property that was not his own; (2) the property was in the possession of another person; (3) the property was taken from the other person or his or her immediate presence; (4) the property was taken against that person's will; and (5) the defendant used force or fear to take the property or to prevent the person from resisting. [Citation.]" (People v. Merritt (2017) 2 Cal.5th 819, 824.) In this case, appellant's trial defense was that he committed a theft, but not a robbery because he did not use force or fear to take the tools. This was a legally valid defense since the use of force or fear is an element of robbery.
Appellant complains that his trial defense was inconsistent with evidence that "the assault was quickly followed by the theft of the tools," and that Delatorre did not attempt to prevent appellant from taking the tools "because he was still scared and confused." This argument may demonstrate that the verdict was supported by substantial evidence but that does not mean appellant's defense was invalid or that his attorney performed deficiently by presenting it. Furthermore, Delatorre's testimony about these issues was equivocal. For example, he testified that he was afraid, but he did not ask his coworkers for help and they did not attempt to intervene. Also, as soon as appellant started to walk away, Delatorre turned his back and called the police. Furthermore, Delatorre testified that appellant walked to his bike and then turned around and walked back to the tools.
Appellant's second complaint is that his trial counsel pursued an unreasonable strategy by attempting to exclude evidence suggesting that appellant took the drill. According to appellant, this strategy was "unreasonable by any measure" because excluding other crime evidence did not negate any element of robbery.
Appellant's trial counsel did not perform deficiently by filing a pretrial motion to preclude witnesses from speculating that appellant stole the drill. That evidence was by nature prejudicial because it made appellant look like a criminal. Furthermore, evidence that appellant stole a drill on the same day and from the same people was evidence that he returned to the Maricopa duplex with the intent to steal the tools. Finally, evidence that appellant stole the drill directly supported the prosecution theory that appellant used force or fear to take the tools because his earlier effort to take the drill without using force or fear had not been successful. These considerations establish that appellant's trial counsel made a reasonable tactical decision not to elicit testimony that her client took the drill.
Appellant's third complaint is that his trial counsel committed herself to a strategy and defense that essentially precluded her from presenting the best available defense to the robbery charge. According to appellant, when Delatorre testified at the preliminary hearing that appellant yelled at him for calling the police about the drill, any reasonably competent attorney would have understood that this factual circumstance established an alternative motivation for the assault, which was inconsistent with an intent to commit a robbery. He reasons Delatorre's testimony about what appellant said would have established "a motive for the assault that had nothing to do with theft," and supported a convincing claim that appellant did not commit robbery because he did not form the intent to steal until after the attack. (Citing e.g., People v. Green (1980) 27 Cal.3d 1, 54 (Green) ["if the larcenous purpose does not arise until after the force has been used against the victim, there is no 'joint operation of act and intent' necessary to constitute robbery"].) Appellant faults his trial counsel for failing to present this potentially meritorious defense to the robbery charge.
Appellant's argument is factually unsound for at least two reasons. First, proving that appellant was angry at Delatorre for calling the police on him would not establish a motive for the assault that had nothing to do with theft. Appellant could have been angry at Delatorre for calling the police and also intended to steal tools from the Maricopa duplex when he punched Delatorre in the face. Appellant fails to address why these two intentions are mutually exclusive. Second, appellant's alternative motive theory would not be a defense to the robbery charge in light of evidence that appellant also used fear to take the tools from Delatorre.
Moreover, appellant's alternative defense theory is really only a factual variation of the legal defense that his counsel did present at trial. Contrary to appellant's arguments to this court, his defense counsel did argue that he did not form the intent to steal until after the assault was completed. Instead of focusing on the motive for the attack, which was highly prejudicial to appellant, defense counsel focused on the timing of the taking, and the evidence suggesting that appellant walked away from the altercation intending to leave, but then turned around and went back for the tools. Under the circumstances, this was a reasonable strategy.
Appellant's case authority is inapposite. Green, supra, 27 Cal.3d at page 53, and its progeny address the factual situation in which the defendant took property from his murder victim. In that situation, if the defendant killed (or debilitated) his victim and only then saw an opportunity to take the victim's property, that taking was a theft as opposed to a robbery because the defendant could not have used force or fear to take property from a victim who was already dead. (Ibid.) This reasoning does not apply when, as here, the defendant's victim was conscious and afraid when his property was taken.
Appellant also cites Rodriguez v. Superior Court (1984) 159 Cal.App.3d 821 (Rodriguez). In that case, the defendant was charged with rape and robbery of a woman he accosted at a bus stop. The charges were based on evidence that the defendant drove the woman to a field where he forced her to get out of the car, raped her and then left her, driving away in the car where she had left her purse. (Id. at pp. 823-824.) Under those circumstances, the Rodriguez court found that the robbery charge needed to be dismissed because either the defendant inadvertently took the victim's purse, in which case he harbored no felonious intent with respect to that taking, or the intent to steal was formed only after the victim was forced from petitioner's car, in which case "no robbery took place." (Id. at p. 825.)
Rodriguez demonstrates how the after-formed intent defense can apply to a robbery charge even if the defendant took property from a victim who he has just assaulted and terrorized. In that case, however, the uncontradicted evidence established that the defendant could not have used force or fear to take the victim's purse. Here, the evidence was otherwise. Indeed, even if appellant's alternative motive theory was credited by the jury, it nevertheless could have concluded that appellant used force and fear to take the leaf blower and weed cutter.
Appellant's trial counsel emphasized evidence that tended to show that appellant did not form the intent to take the tools until after he returned to his bike, and that he used neither force nor fear when he went back to retrieve them. This was a sound theory, supported by the same legal authority appellant uses to construct his alternative defense. Thus, appellant has failed to carry his burden of proving that his trial counsel performed deficiently by presenting this defense at trial.
C. Failing to Object to Prosecutor's Remarks Was Not Ineffective Assistance
Appellant contends that the prosecutor committed misconduct during her rebuttal argument. He concedes that he forfeited this claim of error, but contends that his trial counsel's failure to object constitutes ineffective assistance of counsel.
As discussed above, the prosecutor's rebuttal argument responded to the defense claim that the force or fear element of robbery had not been established. During her rebuttal, the prosecutor made the following remarks, which appellant now characterizes as misconduct: "He hit the victim, and they moved backwards away from the tools. So he actually used that force to get Mr. Delatorre further from the property that he wanted to take, but even if you find that he didn't use the force to take the tools, let's say you think he just came there to punch Mr. Delatorre in the face for no reason. Well, you still have that fear, and he is still guilty of the robbery because when you take advantage of that atmosphere, that intimidation you've created to accomplish a theft, that is by definition a robbery. That is why it's different and apart from just a regular theft or a grand theft."
Appellant contends these remarks were misconduct because they created a false dichotomy, which misled the jury. (Citing People v. Daggett (1990) 225 Cal.App.3d 751, 757-758 [prosecutor may not use reprehensible tactics to "mislead the jury"].) According to this argument, the prosecutor made the false representation to the jury that appellant either (1) punched Delatorre so he could steal the tools, or (2) punched Delatorre for no reason. This "dichotomy" was false because there was another explanation for the assault, appellant's anger at being reported to the police, and it was misleading because the prosecutor knew from Delatorre's preliminary hearing testimony that appellant hit Delatorre for a reason that had nothing to do with the theft of the tools.
The prosecutor did not misrepresent the evidence as appellant contends. Rather, after pointing out correctly that force and fear are alternative methods of accomplishing a robbery, the prosecutor argued that even if there was some question about the nexus between the attack and the theft, there was also evidence that the reason Delatorre did not try to stop appellant from taking his tools was because he was afraid of appellant, the person who had just punched him in the face several times. The prosecutor's rebuttal argument based on the evidence and consistent with the law was not misconduct.
Appellant makes the separate argument that the prosecutor misstated the law in an effort to absolve herself of having to prove all the elements of robbery. (Citing People v. Hill (1998) 17 Cal.4th 800, 829-830.) According to this argument, the above-quoted remarks told the jury that even if appellant struck Delatorre for no reason, he was guilty of robbery if he took advantage of the situation to steal the tools. Appellant contends that the prosecutor's statement that appellant committed robbery even if he took the tools for no reason was not only untrue, it eviscerated his only defense to the robbery charge.
The prosecutor did not tell the jury that appellant committed a robbery if he took the tools for no reason, or that taking advantage of a situation to steal something was sufficient. She argued that taking advantage of an atmosphere of fear and intimidation to take the tools would satisfy the fear prong of the force or fear element of robbery. This argument did not misstate the law. People v. Anderson (2011) 51 Cal.4th 989, a case cited by appellant, holds that " 'the act of force or intimidation by which the taking is accomplished in robbery must be motivated by an intent to steal . . . .' [Citation.]" (Id. at p. 994.) Appellant ignores the fact that the word "or" is disjunctive, requiring either the use of force or the use of fear to accomplish the theft. The prosecutor did not commit misconduct by highlighting this fact for the jury.
The decision whether to object during opposing counsel's arguments in a criminal trial " 'is inherently tactical, and the failure to object will rarely establish ineffective assistance.' [Citations.]" (People v. Lopez (2008) 42 Cal.4th 960, 972.) "[C]ompetent counsel may often choose to forgo even a valid objection. '[I]n the heat of a trial, defense counsel is best able to determine proper tactics in the light of the jury's apparent reaction to the proceedings. The choice of when to object is inherently a matter of trial tactics not ordinarily reviewable on appeal.' [Citation.]" (People v. Riel (2000) 22 Cal.4th 1153, 1197.) This case is not an exception, especially in light of the fact that the prosecutor's rebuttal argument was fair argument supported by the evidence and consistent with the law. Thus, appellant's trial counsel did not perform deficiently by failing to object to that argument.
Appellant has not carried his burden of proving that his trial counsel's representation fell below an objective standard of reasonableness under prevailing profession norms. Accordingly, we do not reach the issue of prejudice.
III. DISPOSITION
The judgment is affirmed.
/s/_________
SMITH, J. We concur: /s/_________
STREETER, Acting P. J. /s/_________
REARDON, J.
Judge of the Superior Court of California, County of Alameda, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------