Opinion
G053217
01-13-2017
THE PEOPLE, Plaintiff and Respondent, v. FRANCISCO LICEA, Defendant and Appellant.
Dawn S. Mortazavi, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 15HF0922) OPINION Appeal from a judgment of the Superior Court of Orange County, David A. Hoffer, Judge. Affirmed. Dawn S. Mortazavi, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
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FACTS
Part of the exemplary performance of appointed counsel in this case is a thorough and straightforward explication of the facts of the case. We adopt that statement as part of our opinion and incorporate it below. "Case-in-Chief
"Lynn Morales [(Morales)] worked in the front office of a dentist office located at 25270 Marguerite, Mission Viejo, California. Juli[e] C. [(victim)] was a dental hygienist in the same office with Morales. On August 18, 2015, Morales and Juli[e] C. left the office and were standing by the nearby parking lot next to Morales' car. Morales was wearing a jacket, blouse, and slacks. Morales had her purse and a can of sparkling water in her hand. Juli[e] C. was wearing a white shift dress, bra, thong underwear, and jacket. Juli[e] C. had her purse, a briefcase bag, and her lab jacket in her hand.
"Around 6:30 p.m., near the Big Lots, which was to the left of them, there were three people, an elderly African-American lady, a younger African-American teenager, and appellant, having an argument. Morales could not understand what they were arguing about, but just heard elevated voices. The teenager ran away from the group, past Morales and Juli[e] C., laughing while the other two continued to argue. Appellant walked away from the elderly woman and sat on a bench near Big Lots. Appellant noticed Morales and Juli[e] C. were looking at him, so he made eye contact with them. Juli[e] C. said 'I see you,' under her breath, while gesturing to him. Juli[e] C. denied saying that but instead said that they needed to keep an eye on appellant. Juli[e] C. took her fingers, pointed at her eyes, and then pointed at him.
"A minute later, appellant stood up and started walking towards Juli[e] C. and Morales. The bench was approximately 15 feet away from them. Morales said 'oh shit' and 'get in the car' as she opened her car door. Juli[e] C. responded, 'what is he going to do?' When appellant reached Juli[e] C., he grabbed her by the upper arm and put his other hand up her dress, between her legs, and grabbed her. Juli[e] C.'s back was towards appellant. Appellant touched her vaginal skin in the crotch area. He then turned her around and grabbed her breast and then placed his hands on her bare bottom.
"Juli[e] C. started yelling, 'who the fuck do you think you are? Get your hands off of me,' as appellant grabbed her breasts, and she struggled to get away. Appellant never said a word. Appellant then hit and pushed her down towards the ground. Morales threw her drink at appellant. Morales grabbed her phone and called 911. After the attack, appellant walked away. He was not vomiting or stumbling and just continued to walk down the sidewalk. Neither Juli[e] C. nor Morales smelled any alcohol on his breath. However, she did think appellant looked catatonic during the attack. Morales did not notice if appellant was aroused by the act. Juli[e] C. did not feel an erection. Juli[e] C. was shocked and scared that a stranger would walk up to her and touch her in her crotch area. Juli[e] C. felt the attack was sexual in nature because appellant grabbed her crotch area.
"Julie C. got in her car and followed appellant while Morales stayed to speak with the police. Juli[e] C. was unable to find appellant once she got in her car to follow him.
"Morales spoke with the sheriff's deputies the next day and was unable to identify anyone in the six-pack photo lineup she was shown. Juli[e] C. was able to identify someone in the photo lineup, but was only 50 [percent] sure in her identification. Later that day, while looking at photographs on the officer's iPhone, Morales identified appellant, with 90 [percent] positivity and Juli[e] C. was 80 [percent] sure of her identification. On August 20, 2015, she and Juli[e] C. drove to the sheriff's station and saw appellant in custody. Both Morales and Juli[e] C. were 100 [percent] positive he was the person who attacked Juli[e] C. That day at the sheriff's station, appellant seemed under the influence.
"Orange County Deputy Sheriff Philip Mendoza was on patrol duty in Mission Viejo on August 18, 2015, around 6:30 p.m. He received a call for a possible sexual attack and when he arrived he spoke with Morales and Julie C. He also spoke with an elderly African-American woman and teenager. Neither could identify who they were arguing with. Based on the descriptions he received, he recalled a response to a service call he had received on August 4, 2015, where he found appellant passed out on the sidewalk near Marguerite Parkway and Via Angelina. When Deputy Sheriff Mendoza was able to wake appellant up he was very callous to the police contact and smelled of alcohol. The callousness he observed and the description Juli[e] C. and Morales gave of his callous behavior made appellant stand out as a potential suspect. "Defense Evidence
"Appellant was [27] years old and living in Mission Viejo. In 2006, appellant plead guilty to a misdemeanor threats charge. He had been drinking alcohol since 2007. His alcohol drinking had caused memory loss in the past. On August 4, 2015, appellant recalled being woken up by the police on a sidewalk near his house.
"On August 17, 2015, appellant went to work at the grocery store, Pavilions, which was about half a mile from his house. When he got off work around 7:00 p.m., he began to drink alcohol and continued into the morning of August 18, 2015. Around 6:00 p.m., he went to get fried chicken from Pavilions and continued to drink. The following day, he woke up and went to work around 10:00 or 11:00 a.m. He did not recall anything else from the night before. He did not recall arguing with an older African-American woman or talking to a young teenager with the woman. He had no memory of assaulting a woman that day. He had never seen the victim or Morales before. Appellant was concerned he may have done something on August 18, [2015], because he had little memory and the police were questioning him. He had never sexually assaulted a woman or assaulted a woman.
"Ali Pooya had been friends with appellant for about 12 years. Appellant lived with Pooya's mother, Fariba Sharif, on and off for the last 10 years. Pooya tried to help appellant with his alcoholism and had witnessed appellant drinking in excess, blacking out, and doing things he was not aware of. Sharif also was aware that appellant drank a lot and tried to help him with his alcohol treatment. Sharif was never scared of being around appellant when he had been drinking.
"Luis Licea was appellant's brother. Luis was a year older than appellant. They lived together at their parents' house until appellant was 20 years old, then they lived together sometime at their uncle's house in Bakersfield. Luis was aware that appellant had problems with alcohol. "Rebuttal Evidence
"Edoardo Arredondo was an investigator for the Orange County Sheriff's Department. He was assigned to investigate the sexual battery that occurred on August 18, 2015. He showed the photographic lineup to both Morales and Julie C. After showing the first photographic lineup, Julie C. indicated her attacker had shorter hair. Arredondo's assistant emailed him six new photographs which Arredondo saved on his phone and Julie C. swiped through his phone looking at them. She identified appellant as the suspect. Arredondo then drove Julie C. about 20 yards to his partner's vehicle where appellant stepped out. Julie C. identified appellant as her assailant. Appellant never informed Arredondo that he had blacked out the entire day of August 18. "Surrebuttal Evidence
"Appellant admitted to lying to both Arredondo about his whereabouts on August 18 because he felt oppressed so he decided to just say something to him. He also lied to the jury about getting chicken from Pavilions because he was trying to have his story match the story he told Arredondo."
Appellant was convicted of one count of sexual battery by restraint (Pen. Code, § 243.4), and sentenced to the mid-term punishment of three years in state prison.
DISCUSSION
Licea filed an appeal, and we appointed counsel to represent him on that appeal. Counsel filed a brief which, as noted, fully set forth the facts of the case. Counsel did not argue against her client, but advised the court she could find no issues to argue on appellant's behalf. Licea was invited to express his own objections to the proceedings against him, but did not. Under the law, this put the onus on us to review the record and see if we could find any issues that might result in some kind of amelioration of Licea's lot. (People v. Wende (1979) 25 Cal.3d 436.) It should be emphasized that our search was not for issues upon which Licea would prevail, but only issues upon which he might possibly prevail.
We have examined the record and found no arguable issue. This is not surprising. In fact, it is what we find in the vast majority of cases in which appellate counsel files a Wende brief. Even the most cynical observer of the appellate system would have to recognize that appellate counsel has a financial incentive for finding issues. The simple matter is counsel makes more money if he/she finds an issue that is arguable than if he/she does not. So while it sometimes happens that an appellate court will find issues after appellate counsel has thrown in the towel, it is unusual.
This case is not unusual. We have reviewed the record and applicable law that applies to the issues appellate counsel first looked at and then abandoned. None has any merit. We have searched for other issues. We found none that we think has any chance of success.
The substantial evidence issue appellate counsel turned to first was a non-starter. It is always something counsel has to consider, but is rarely supportable, and this case is no exception. The identification was not perfect, but the defense was hampered by the fact appellant said he had been drinking heavily and did not recall what had happened the evening of the attack. He also had to admit lying on the stand, which also greatly complicated his defense.
We are unable to find a flaw in the photographic identifications, and the trial court's decision to reopen closing arguments to allow the attorneys to address juror questions, while unusual and risky, was within the realm of its discretion. The court's sentencing call was unobjectionable, its computation of credits correct. We have searched for other possible issues and have found none.
We believe counsel's decision to file a Wende brief was well-advised. The judgment is affirmed.
BEDSWORTH, ACTING P. J. WE CONCUR: MOORE, J. IKOLA, J.