Opinion
C097205
11-15-2024
THE PEOPLE, Plaintiff and Respondent, v. JUAN MORENO MEDRANO, Defendant and Appellant.
NOT TO BE PUBLISHED
(Super. Ct. No. 21FE010523)
Duarte, Acting P. J.
Defendant Juan Moreno Medrano appeals from his conviction for numerous crimes related to his prolonged sexual relationship with A.D., who was 13 years old when their relationship began, and 14 years old when it ended. On appeal, defendant contends the trial court erred by misapprehending the law related to its discretion to strike his prior strike conviction, and trial counsel's performance constituted a complete denial of representation, or, in the alternative, was constitutionally ineffective. We will affirm.
FACTS AND PROCEEDINGS
Factual Background
Defendant and A.D. were introduced by A.D.'s mother when A.D. was in sixth grade. Defendant was previously in a dating relationship with A.D.'s maternal aunt, and A.D. was friends with defendant's sisters.
The prosecution's case was established almost entirely through A.D.'s recorded law enforcement interviews, and recorded jail calls between A.D. and defendant made while defendant was in custody on unrelated charges in the fall of 2020, during which they discussed their sexual relationship.
In January 2020, A.D. was 13 years old, and defendant was 22 years old.Defendant asked A.D. if she would allow him to view her secret Instagram account and asked if A.D. would be his "girlfriend." The two then kissed for the first time. Defendant told A.D. to" '[j]ust let me know when you're ready'" to engage in sexual acts. A.D. and defendant kissed possibly more than 10 times before anything more happened, although A.D. recalled that defendant touched her vagina one of the times they were kissing.
A.D. was born in June 2006, and defendant was born in March 1997.
Over time A.D. began to feel comfortable with defendant, and in February 2020 she informed defendant she was "ready." In February, A.D. orally copulated defendant approximately five times, and they had oral sex "a little less than 20" times before they began having sex. A.D. told law enforcement that they had sex twice before she turned 14 in June, although defendant told A.D. during jail calls that that they "did it like four times" the first day they had sex, and in another call that they had sex "like five times that day."
In a jail call, A.D. told defendant that they first had sex in either January or February.
After A.D. turned 14, defendant digitally penetrated her five times and orally copulated her 10 times. They had sex more than 20 times. She orally copulated him more than 10 times. They last had sex on September 9, 2020.
At trial, A.D. denied that any sexual acts with defendant had occurred before she turned 14 years old. She testified that she falsely told law enforcement that her sexual relationship with defendant began in January 2020 because A.D. believed she would be less blameworthy for the relationship if she were younger when their relationship started.
Jury Verdict and Trial Court Findings
A jury found defendant guilty of 10 counts of lewd and lascivious conduct with a child under the age of 14 (Pen. Code, § 288, subd. (a); counts one-ten), two counts of oral copulation undertaken by a person over the age of 21 with a minor under the age of 16 (§ 287, subd. (b)(2); counts eleven & twelve), five counts of unlawful sexual intercourse undertaken by a person over 21 years of age with a minor under age 16 (§ 261.5, subd. (d); counts thirteen-seventeen), and two counts of genital penetration with a foreign object by a person over age 21 on a minor under the age of 16 (§ 289, subd. (i); counts eighteen & nineteen). The jury found true allegations of substantial sexual conduct on counts six through ten, and aggravating sentencing factors of both planning and taking advantage of a position of trust. (Rules of Court, rule 4.421(a)(8), (11).)
Further undesignated statutory references are to the Penal Code.
Further rule references are to the California Rules of Court.
Following the jury's verdict, the trial court found true the allegations that defendant had a prior strike (Pen. Code, §§ 667, subds. (b)-(i), 1170.12); specifically, defendant had previously pleaded guilty to possession of methamphetamine for sale (Health & Saf. Code, § 11378), and had admitted that the crime was committed for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)(1)). The court also found true the allegation that defendant committed the offenses while he was on bail. (Id., § 12022.1.)
Sentencing
Neither party filed a written sentencing memorandum, and trial counsel did not file a written motion to dismiss defendant's prior strike conviction. At the sentencing hearing, counsel orally requested that the court strike defendant's prior strike pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497. Counsel noted that while defendant had a prior criminal record, he only had one prior strike conviction. He added that defendant "had what can best be described as a questionable childhood," including that his parents were addicted to drugs, his father was deported to Mexico, he did not have a relationship with his mother, and he became involved with gangs while being raised by his grandmother. Defendant was also father to several children, and sentencing him to more than 53 years in prison as recommended by probation "is not going to be helpful here" because his children would be raised without a father.
Counsel also argued that a lesser sentence would "provide the rehabilitative but also the punishment aspect that one finds in adult court." He added: "[B]esides asking the Court to strike that prior strike, understanding that some of the conduct here occurred prior to the strike conviction being suffered in February of 2020 so that some of the allegations cannot be doubled because the strike hadn't been suffered yet, but I think this is something where I'm asking the Court to consider a lesser punishment, and one way in doing that is by striking the strike so that not all the counts that are subject to that strike be doubled."
The trial court denied defendant's Romero motion. It recognized that defendant's age--approximately 23 years old at the time of his offenses--was "probably the strongest thing the defendant has for him in terms of mitigation." It also acknowledged that defendant had come from a "very difficult background," and had "a lot of interaction with the criminal justice system" beginning as a juvenile. Defendant had been a ward of the court, had sustained multiple convictions and was supervised by probation for "many years," had repeatedly violated probation, and was then convicted of a strike offense. The court noted that defendant had "repeated opportunities to change," and that "[t]hese are not low-level felonies," but rather that "[m]any of these [crimes] are quite serious." Moreover, soon after committing his prior strike offense, defendant "went right out and continued engaging in the behavior he did that led to his convictions in this case."
The court determined that defendant had "very few prospects" based on his age, multiple prior felonies, and current sexual offenses. It opined that rehabilitation "ha[d] not worked in any way, any intervention by the court system or other agencies have not worked, and now there's nothing left but a long period of incarceration. Whether I struck the strike or not, there would be a long period of incarceration based on what occurred in this case." The court concluded that based on the totality of the case, and defendant's background and character, defendant fell within the spirit of the three strikes law.
After the Romero motion was denied, counsel continued to argue for a lesser sentence. He observed that the probation report recommended that all the terms run consecutively, but requested that the court exercise its discretion to impose concurrent terms. He acknowledged that defendant's actions were wrong, but asked the court to exercise its discretion to not impose a sentence of more than 53 years.
Counsel also asked the court to mitigate or waive the fines and fees to the extent possible; specifically, he requested that the court reduce the mandatory restitution fine from $10,000 to $300 (Pen. Code, § 1202.4) and to waive other fines and fees (id., §§ 1464, 1465.7; Gov. Code, §§ 76000, 76000.5, 76104.6, 76104.7, 70372). Finally, counsel requested that the court strike the on-bail enhancement (Pen. Code, § 12022.1) if the court were legally authorized to do so.
The trial court recognized that it had discretion to impose concurrent sentences and the authority to stay the on-bail enhancement. But it recalled that it "practically begged [defendant] to take an offer on this case that I thought was an incredibly reasonable resolution of this case and to spare [A.D.] from having to testify in this case. [Defendant] opted for a jury trial, which is of course his right to do, but he was warned that likely wouldn't turn out well. And it did not turn out well, spectacularly so."
Defendant requested that he be allowed to address the court, and he stated that he refused to accept the prosecution's plea offer because "if [he] were to go to prison that [he would not] be able to see [his] kids, and that's like the biggest thing for [him]." The court stated that it "respect[ed] that."
The trial court found there were circumstances in aggravation, including that the manner in which the crimes were carried out indicated planning, defendant took advantage of a position of trust or confidence, defendant had served a prior prison term, defendant was on postrelease community supervision at the time the crimes were committed. (Rule 4.421(a)(8) & (11), (b)(3) & (4).) In mitigation, the court found that defendant was under the age of 26 when the crimes were committed. (Id., (b)(6).)
The court indicated it would impose consecutive sentences because the crimes were committed at different times or separate places rather than being so close in time and place as to indicate a single period of aberrant behavior. It imposed a total determinate term of 53 years four months in prison.
Defendant filed a timely notice of appeal. The case was fully briefed in September 2024 and was assigned to the current panel at the end of that month.
DISCUSSION
I Striking the Prior Strike
Defendant contends remand is required because the trial court misapprehended the law regarding its discretion to strike his prior strike, or, alternatively, counsel rendered ineffective assistance that deprived him of his constitutional rights. Specifically, he points to the trial court's statement: "Whether I struck the strike or not, there would be a long period of incarceration based on what occurred in this case." He argues the court's statement was legally incorrect and demonstrated its misunderstanding of the law because, if it struck the strike, he would have been youth offender, parole eligible after only 15 years of incarceration (§ 3051, subd. (b)(1) [person convicted of offense committed when the person was 25 years old or younger shall be eligible for parole hearing during the person's 15th year of incarceration]), whereas those sentenced under the three strikes law are not subject to youth offender parole consideration (id., subd. (h)). The argument fails to persuade.
The law in this area is well developed; a trial court must decide whether to strike a prior strike by considering factors that are intrinsic to the three strikes law's sentencing scheme. (People v. Williams (1998) 17 Cal.4th 148, 161.) These factors include: (1) the nature and circumstances of the current conviction; (2) the nature and circumstances of the prior strike conviction; and (3) the defendant's "background, character, and prospects." (Ibid.) If the defendant falls outside the spirit of the three strikes law, the court may, in furtherance of justice, treat the defendant "as though he [or she] had not previously been convicted of one or more serious and/or violent felonies." (Ibid.; see also People v. Superior Court (Romero), supra, 13 Cal.4th at pp. 529-530; § 1385, subd. (a).)
We review a trial court's denial of a Romero motion for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 373.) On review, the denial of a Romero motion is strongly presumed to be a proper exercise of discretion, and the court is presumed to have considered all relevant factors in the absence of an affirmative record to the contrary. (Id. at p. 378; People v. Myers (1999) 69 Cal.App.4th 305, 310.) A defendant bears the burden of providing sufficient evidence to support his Romero motion. (People v. Lee (2008) 161 Cal.App.4th 124, 129.)
The trial court's statement that it would be imposing a lengthy sentence whether or not it struck the strike is not a misstatement of the law. Defendant argues that the court's statement was erroneous because striking the strike could have reduced his time in prison by almost half, but the court did not say anything to the contrary or indicate in any way that it did not understand the effect striking the strike would have on his sentence. If, as defendant calculates, striking the strike would have resulted in defendant serving 28.62 years in prison, that could still be reasonably characterized as a "lengthy" sentence. Indeed, defendant agrees in his opening brief that a sentence of 15 years "would constitute a long period of incarceration."
Defendant contends the trial court's statement demonstrated it was not aware of youth offender parole eligibility under section 3051. We disagree; the court did not say anything about defendant's parole eligibility. Moreover, as we have discussed, even if the "lengthiness" of the imposed sentence were measured based on when defendant became eligible for parole as defendant asserts--which we need not and do not decide--defendant agreed that a 15-year-term "would constitute a long period of incarceration." In short, the record does not indicate that the trial court exercised its discretion based on a misapprehension of the law, and therefore defendant's claim lacks merit.
Defendant's claim of ineffective assistance of counsel fails for similar reasons. To prevail on a claim of ineffective assistance of counsel, defendant bears the burden of showing (1) counsel's performance fell below an objective standard of reasonableness under prevailing professional norms, and (2) the deficient performance prejudiced defendant. (Strickland v. Washington (1984) 466 U.S. 668, 691-692; People v. Ledesma (1987) 43 Cal.3d 171, 216-217; People v. Haskett (1990) 52 Cal.3d 210, 248 [the defendant bears the burden of proof on an ineffective assistance counsel claim].) "To establish prejudice, a 'defendant must show that 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.'" (People v. Ogunmowo (2018) 23 Cal.App.5th 67, 78.) Because nothing suggests the trial court was unaware of section 3051 or otherwise misapprehended the law, counsel's failure to call the court's attention to that statute did not constitute ineffective assistance.
II Denial of Counsel and Ineffective Assistance Claims
In supplemental briefing, defendant contends trial counsel's performance constituted a complete denial of counsel under the high court's decision in United States v. Cronic (1984) 466 U.S. 648 (Cronic), or, alternatively, was constitutionally ineffective. We disagree.
A. Complete Denial of Counsel Claim
In Cronic, the high court concluded, "if counsel entirely fails to subject the prosecution's case to meaningful adversarial testing, then there has been a denial of Sixth Amendment rights that makes the adversary process itself presumptively unreliable." (Cronic, supra, 466 U.S. at p. 659.) However, where the defendant is represented by counsel, "the presumption of prejudice will only stand when counsel entirely failed to subject the prosecution's case to meaningful adversarial testing." (People v. Benavides (2005) 35 Cal.4th 69, 86.) Failure to oppose the prosecution at specific points is not sufficient to trigger the presumption of prejudice; the attorney must completely fail to oppose the prosecution throughout an entire proceeding. (Bell v. Cone (2002) 535 U.S. 685, 691-692.)
Defendant contends trial counsel's performance during the sentencing hearing was presumptively prejudicial under Cronic because he made only a perfunctory Romero motion, failed to conduct any research in preparation for the sentencing hearing, and failed to raise multiple arguments at sentencing.
We discuss these arguments in greater detail in the context of defendant's ineffective assistance claim, post.
Counsel's performance during sentencing did not constitute a complete denial of counsel. While counsel acknowledged he did not file a written Romero motion because he had "been tied up in trial," he requested permission to, and did, make an oral Romero motion. He supported the motion by pointing to the fact that defendant had only been convicted of one prior strike, had a difficult upbringing, and was father to several children. Counsel also argued that concurrent sentences on several counts of conviction would advance the court's rehabilitative and punishment goals, requested that the court strike the on-bail enhancement, and argued for minimizing fines and fees. Thus, although defendant argues that counsel should have raised other arguments at the sentencing hearing, which we discuss post, his performance did not constitute a complete denial of counsel.
B. Ineffective Assistance of Counsel Claim
Defendant alternatively claims that counsel's performance was constitutionally ineffective. (See Strickland v. Washington, supra, 466 U.S. at p. 694; Cronic, supra, 466 U.S. at p. 657, fn. 20 [specific errors and omissions not constituting a complete denial of counsel must generally be litigated as ineffective assistance of counsel claims].) As we will explain, defendant's arguments fail to satisfy his burden to show ineffective assistance.
First, defendant argues that counsel only litigated the issue of whether some of the acts occurred before A.D. turned 14 years old. He also notes that counsel acknowledged he did not challenge the prosecution's evidence in the manner he normally would, but rather waived his opening statement and did not cross-examine A.D.
Counsel stated during closing argument: "I thought about what an unusual case this was, so unusual that I violated several things that I normally do as a defense attorney and have done over 35 years. I waived my opening statement, which I never do. I did not ask [A.D.] any questions, which, again, I never do."
However, counsel explained his conduct during closing argument. He reasoned that he did not give an opening statement because he "really didn't know how the evidence would come out." He observed that a conviction in a sexual assault case can be based on the testimony of the complaining witness alone, but that this case was unusual because A.D.'s testimony contradicted her prior statements about the nature, timing, and number of sexual acts that occurred, and the prosecutor was required to impeach A.D.'s testimony. Counsel argued that the jury should believe A.D.'s sworn testimony. In other words, the record demonstrates that counsel made the tactical decisions to waive his opening statement, narrow the issues, and rely on A.D.'s favorable testimony when deciding to not cross-examine her. Defendant fails to explain why these tactical choices constitute ineffective assistance.
During closing, the prosecutor spent considerable time discussing how and why A.D. had testified inconsistently with her prior statements to law enforcement.
Second, defendant contends counsel was ineffective for failing to object to the trial court's decision to impose consecutive sentences. At the outset, counsel did request that the court impose concurrent sentences for some of the counts of conviction. The court noted its discretion to impose concurrent sentences, but instead imposed consecutive sentences under rule 4.425(a)(3), which provides that a factor relating to the decision to impose consecutive sentences is whether "[t]he crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior."
In support of his argument, defendant asserts that count three was not independent of other counts because it charged him with touching A.D.'s vagina while they were kissing, and counts one and two charged him with kissing A.D. Similarly, he argues that the sentence for count twelve (oral copulation) could have been imposed to run concurrent to the sentences for counts thirteen through seventeen (sexual intercourse) because the evidence showed defendant orally copulated her on occasions when they also had sex, and counts eighteen and nineteen (digital penetration) must have been committed on the same occasion as an act of sexual intercourse because there was no evidence that an act of digital penetration occurred at a time when intercourse did not occur.
But while counsel could have made these specific arguments at sentencing, defendant fails to show a reasonable probability of a more favorable outcome had counsel done so. A.D. told law enforcement that she and defendant kissed possibly more than 10 times before they began engaging in other sexual activity, and defendant touched her vagina during one kissing episode. Because the evidence showed that defendant kissed A.D. approximately nine times without touching her vagina, the jury could have found defendant guilty of kissing her on two occasions, and of touching A.D.'s vagina on a third occasion. Similarly, A.D. told law enforcement that, after she turned 14, they had sex more than 20 times, defendant orally copulated her 10 times, and digitally penetrated her five times. The jury could have found defendant guilty of sexual intercourse with a minor on five occasions (counts thirteen-seventeen), and guilty of oral copulation (count twelve) and digital penetration (counts eighteen and nineteen) on other occasions. It is not reasonably probable that defendant would have achieved a more favorable result had he objected to the court's imposition of consecutive sentences after previously arguing for concurrent sentences.
Third, defendant argues counsel was ineffective for failing to argue that he fell within the provisions of section 1385, subdivision (c), which gives the trial court discretion to dismiss enhancements if it is in the furtherance of justice to do so. It requires the court to "consider and afford great weight to evidence offered by the defendant to prove" certain enumerated factors, including, as relevant here, that "[t]he current offense is connected to mental illness" (§ 1385, subd. (c)(2), (c)(2)(D), (c)(5) [defining mental illness]), and "[t]he current offense is connected to prior victimization or childhood trauma" (id., subd. (c)(2)(E)), (c)(6) [defining" '[c]hildhood trauma'" and" '[p]rior victimization' "]). Defendant argues that subdivision (c) of section 1385 applied to him because he told the probation officer, as reflected in the probation report, that he was neglected as a child due to his parents' drug use, and that he began using marijuana at a young age and was previously convicted of possession of methamphetamine for sale.
The only enhancement imposed here was the on-bail enhancement. (§ 12022.1.) A sentence imposed under the three strikes law is not an enhancement for purposes of section 1385, subdivision (c). (People v. Burke (2023) 89 Cal.App.5th 237, 244.)
The probation report reflects defendant's statement that he used marijuana until age 15, but that he denied current use of marijuana, illegal drugs, and alcohol.
Defendant fails to demonstrate either prong of the Strickland analysis. There is nothing to suggest that defendant's crimes were "connected to" mental illness, prior victimization, or childhood trauma. (§ 1385, subd. (c)(2)(D), (E).) The probation report reflected that defendant used marijuana until age 15, but that he denied current use of marijuana, illegal drugs, or alcohol. There is no other evidence he suffered from mental illness. Nor is there any evidence whatsoever that his parents' drug use was connected to his offenses.
Fourth, defendant argues that counsel failed to object to the sentence as an impermissible penalty for exercising his right to trial. (See In re Lewallen (1979) 23 Cal.3d 274, 281 [court may not impose a more severe sentence because the accused elects to proceed to trial].) He points to the following comment made by the trial court during the sentencing hearing: "I will remind the defendant that I practically begged him to take an offer on this case that I thought was an incredibly reasonable resolution of this case to spare the child from having to testify in this case. He opted for a jury trial, which is of course his right to do, but he was warned that likely wouldn't turn out well. And it did not turn out well, spectacularly so."
The trial court's comment merely noted that defendant had received what the court interpreted to be a generous offer, and it had warned defendant that proceeding to trial would likely result in a worse outcome. The court's comment did not suggest that it would consider defendant's choice to take the case to trial in deciding what sentence to impose. The "mere fact" that a defendant received a greater sentence than was offered by plea deal "does not in itself support the inference that he was penalized" for going to trial. (People v. Szeto (1981) 29 Cal.3d 20, 35.)
The facts in this case are distinguishable from those in In re Lewallen. In that case, the trial court stated that if defendant took his case to trial, "he's not going to have the consideration he would have had if there was a plea." (In re Lewallen, supra, 23 Cal.3d at p. 277.) Accordingly, the court indicated that it would treat the defendant differently if he went to trial. Conversely, here the trial court warned defendant that there was significant risk in taking his case to trial, but it did not indicate that it would treat him differently if he did so. Because there is no indication that the court punished defendant for going to trial, counsel was not constitutionally ineffective for failing to object to the sentence on that basis.
Finally, defendant contends counsel was ineffective for failing to challenge his prior strike offense under Assembly Bill No. 333 (2021-2022 Reg. Sess.), which modified the elements required to prove a gang offense and related enhancements. But defendant raises no argument as to how Assembly Bill No. 333 could have invalidated his prior conviction. Accordingly, he has failed to demonstrate a reasonable probability that such an argument would have resulted in a more favorable outcome.
DISPOSITION
The judgment is affirmed.
We concur: Krause, J., Wiseman, J. [*]
[*]Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.