Opinion
H043157
03-28-2017
THE PEOPLE, Plaintiff and Respondent, v. ADRIAN MURRIETTA, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. Nos. SS150709A & SS142236A)
STATEMENT OF THE CASE
On March 16, 2012, in superior court case number SS142236A, defendant Adrian Murrietta pleaded no contest to possession of cocaine in jail (Pen. Code, § 4573.6). On April 16, 2012, the trial court suspended imposition of sentence and placed defendant on probation for a period of three years. On February 9, 2015, the probation department filed a notice of violation of probation, which specified that defendant had been arrested for violations of Penal Code sections 289, subdivision (a), 220, and 261, subdivision (a)(2). On May 14, 2015, the trial court found that defendant violated the terms of his probation.
On May 22, 2015, in superior court case No. SS150709A, the Monterey County District Attorney filed a six-count information charging defendant with the following crimes: assault with intent to commit rape, sodomy, and oral copulation (Pen. Code, § 220, subd. (a)(1); count 1), forcible sexual penetration (Pen. Code, § 289, subd. (a)(1)(A); count 2), attempting to dissuade a witness (Pen. Code, § 136.1, subd. (a)(2); counts 3 and 4), and assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4); counts 5 and 6). On October 8, 2015, a jury convicted defendant of forcible sexual penetration (Pen. Code, § 289, subd. (a)(1)(A)) as charged in count 2, acquitted him of attempting to dissuade a witness as charged in counts 3 and 4, and found him guilty of the lesser included offense of assault (Pen. Code, § 240) for counts 1, 5, and 6.
The trial court sentenced defendant on December 1, 2015. For case number SS150709A, the trial court sentenced defendant to eight years in prison. For case number SS142236A, the trial court sentenced defendant to a consecutive one-year term in prison.
Defendant filed timely notices of appeal. This appeal followed. In the appeal, defendant challenges the judgment only in superior court case number SS150709A. Defendant makes the following argument on appeal: defense counsel rendered ineffective assistance in failing to secure a limiting instruction regarding certain hearsay statements and in failing to make certain arguments to the jury; defendant suffered cumulative prejudice as a result of defense counsel's errors; and the sentence for the assault in count 1 must be stayed pursuant to Penal Code section 654. As set forth below, we affirm.
Because defendant does not seek any relief for superior court case number SS142236A, we will not provide the facts of that case.
Defendant has also filed a petition for writ of habeas corpus, which this court ordered considered with the appeal. By separate order of this date, we deny the petition for writ of habeas corpus.
STATEMENT OF THE FACTS
In February 2015, defendant and Kara W. lived together at a house in Salinas. Defendant was Kara's "god-brother." Kara's children, 14-year-old Sadie W. and 17-year-old Jacob C., also lived at the house.
Pursuant to California Rules of Court, rule 8.90(b), we will identify witnesses by their first name and last initial. --------
Kara hosted a small party at the house. Five or six friends attended the party, and defendant, Sadie, and Jacob were also present at the party. The partygoers played pool in the garage. The charged offenses occurred during and after the party.
Evidence Pertaining to Counts 1 and 2
Jennifer R. and Jane Doe attended the party. Jennifer testified that defendant was acting "creepy," was behaving in a fashion that was "too sexual," "was making advances toward all of the women" at the party, and was "[p]utting his hands on" the women at the party. Jennifer told defendant to stop touching the women. Jennifer noticed that defendant "kept wanting to talk to" Jane, even though Jane told defendant that she "was not interested."
Jane testified that she met defendant for the first time at the party. She and defendant were both drinking alcohol. Defendant was "flirtatious" with Jane and offered her drinks. Jane told defendant that she did not want to drink anymore. Defendant continued to offer Jane drinks, and Jane eventually consumed two more drinks with defendant. Defendant and Jane went to the living room to talk. All of the other partygoers were in the garage. Defendant "got closer to" Jane, and she told him that she was "not interested" because she had "a partner and a daughter with [her] partner." Jane continued talking with defendant. Defendant "kept insisting how he wanted to get to know" Jane, and Jane became "very uncomfortable." Defendant grabbed Jane's wrists, and she said, "What are you doing? No, no, no." Jane testified that defendant pushed her, she "started walking backwards," and the next thing she could remember was being inside defendant's bedroom.
Jane testified that defendant's bedroom door was shut. She told defendant that she did not want to be there. Defendant pushed Jane onto the bed, and he got on top of her. Jane repeatedly told defendant that she "didn't want to do anything" and "didn't want to be there." Defendant pinned Jane down, she struggled to get up, and he dug his knees into her thighs. Jane said, "You know, you don't want to do this." Defendant replied, "Yes, I do. And I'm going to do it to you real F'ing good." Defendant pulled down Jane's pants and put his hand inside her underwear. Jane testified that defendant "was touching [her] clitoris" and her "vaginal area." She testified that she could not remember whether defendant "penetrated the labia" in order to touch her clitoris, but she knew his "hands were down there and just touching" her. While defendant was touching her, Jane "said no" and "kept telling him to stop."
Sadie testified that she saw defendant and Jane Doe together. She explained that defendant called for Jane, and Jane "walk[ed] off with" defendant. A few minutes later, Sadie went to the bathroom. Sadie walked out of the bathroom, and she heard Jane's voice inside defendant's bedroom. Sadie heard Jane say, "No. Stop." Sadie went to the garage to get Kara. Kara ran toward defendant's bedroom. Jacob and Jennifer went with Kara. Jacob, Jennifer, and Kara heard Jane say "no" multiple times behind defendant's closed bedroom door. Kara opened the bedroom door, which was not locked. Jane was on the bed, and her pants and underwear were "down." Jennifer saw defendant, who was not wearing pants, move away from the bed. Jane yelled that defendant "tried to rape her." Jane was crying and screaming, and Jennifer took Jane outside.
Jane testified that her "vaginal area" felt "[r]eally, really sore" and "hurt" the day after the incident. Jane spoke with an investigator from the district attorney's office, and Jane described how defendant "penetrat[ed] her genital opening." Jacob told the investigator that he heard Jane tell defendant that she "was not interested in him."
Evidence Pertaining to Counts 5 and 6
After Jennifer escorted Jane out of the house, Jennifer told Jane and another partygoer to wait outside. Jennifer went back inside the house. Defendant and Kara were talking in defendant's bedroom, and defendant "kept saying he needed to get out of there because they were going to call the cops." Jennifer told Kara that it was not safe to stay in the house. Defendant began "yelling" and "cussing" at Jennifer. Defendant hit Jennifer. He threw Jennifer into the wall and "repeatedly punched" her face. Jacob tried to push defendant away from Jennifer. Defendant "swung" at Jacob and "hit" Jacob. Sadie and Jacob called 911 and reported the fight. Defendant left the house and ran down the street.
Evidence Pertaining to Counts 3 and 4
While in jail, defendant made phone calls to his mother. In the calls, defendant stated that Kara and Jennifer were not required to honor subpoenas to testify. Defendant also stated, "If they don't show up, the charges will be dropped." Defendant said that he would look "better" if "they wouldn't even go."
Defense Evidence
Defendant testified on his own behalf. He testified that he attempted to kiss Jane, and she backed up and fell on the couch in the living room. When defendant helped Jane up, she "grabbed" his "private area" and kissed him. Defendant and Jane held hands and went to defendant's bedroom. Defendant pulled down Jane's pants "a little bit." Jane said "no." Defendant asked Jane if she wanted him to stop, and she kissed him. Defendant and Jane "kept on going." Defendant and Jane were in the bedroom only for "a couple minutes" because Kara "ran in."
Defendant denied hitting Jacob. He explained that he tried to take away Jacob's phone when Jacob said he was going to call the police. Defendant testified that Kara and Jennifer were hitting him, so he hit Jennifer twice in self-defense.
On cross-examination, defendant admitted that he put his hand inside Jane's underwear. He testified that he was "pretty sure" that he did not "like penetrate her." He explained that he "only probably touched her underwear because there was nothing on [his] hands." Defendant could not remember if he touched Jane's "private parts," but he knew that he "didn't . . . like penetrate her or something like that."
DISCUSSION
I. Ineffective Assistance of Counsel
Defendant brings several claims of ineffective assistance of counsel. First, defendant contends that defense counsel was deficient because he declined a limiting instruction for Jane's out-of-court statements about her lack of interest in defendant. Second, defendant asserts that, during closing argument, defense counsel should have argued that the actus reus for the forcible penetration charge had not been proven. Third, defendant contends that defense counsel's closing argument should have informed the jury that acquittal was necessary on the forcible penetration charge because defendant had a reasonable and good faith belief in consent. Finally, defendant contends that he suffered cumulative prejudice as a result of defense counsel's deficiencies. As explained below, defendant has failed to show ineffective assistance of counsel.
A. Legal Principles
The defendant bears the burden of proving ineffective assistance of counsel. (People v. Carter (2003) 30 Cal.4th 1166, 1211 (Carter).) "To prevail on an ineffective assistance of counsel claim, appellant must prove two elements: (1) trial counsel's deficient performance and (2) prejudice as a result of that performance." (People v. Martinez (2014) 226 Cal.App.4th 1169, 1189, citing Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland ).)
Deficient performance is established "if the record demonstrates that counsel's performance fell below an objective standard of reasonableness under the prevailing norms of practice." (In re Alvernaz (1992) 2 Cal.4th 924, 937. "The question is whether an attorney's representation amounted to incompetence under 'prevailing professional norms,' not whether it deviated from best practices or most common custom." (Harrington v. Richter (2011) 562 U.S. 86, 105.) "A reviewing court will indulge in a presumption that counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy." (Carter, supra, 30 Cal.4th at p. 1211; see also People v. Witcraft (2011) 201 Cal.App.4th 659, 664.) A reviewing court defers to counsel's reasonable tactical decisions. (People v. Jones (2003) 29 Cal.4th 1229, 1254.) A reviewing court "should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight." (People v. Scott (1997) 15 Cal.4th 1188, 1212 (Scott).)
Prejudice is established if "there is a reasonable probability that defendant would have obtained a more favorable result absent counsel's shortcomings." (People v. Cunningham (2001) 25 Cal.4th 926, 1003 (Cunningham).) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland, supra, 466 U.S. at p. 694.)
A defendant who raises the issue on appeal must establish ineffective assistance "based upon the four corners of the record." (Cunningham, supra, 25 Cal.4th at 1003.) Where the record on appeal "does not show the reason for counsel's challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation." (People v. Anderson (2001) 25 Cal.4th 543, 569.)
B. Defense Counsel Did Not Render Ineffective Assistance in Declining a Limiting Instruction
1. Background
During motions in limine, defense counsel made the following objection: "[T]here were statements that were alleged to have been made by Jane Doe prior to the incident occurring on February 7th. And they go to the effect that she was not interested in [defendant]. I believe those are hearsay or out-of-court statements offered for the truth of the matter asserted. I'd ask that they be excluded from evidence." The prosecutor responded to the objection as follows: "[T]here are two witnesses who I would propose to have testify that they overheard Jane Doe specifically tell the defendant that she was not interested in him, that because she had a partner and a child. They're not offered for the truth of the matter asserted. They're simply offered to show that he had that knowledge, and that that utterance was made to him."
The trial court ruled that the out-of-court statements would be admitted for the "limited purpose" described by the prosecutor. The trial court further ruled that it would "provide a limiting instruction during the instructions to the jury." Defense counsel agreed that a limiting instruction was appropriate.
On direct examination, Jennifer testified: "[T]here were several points where I heard [Jane] say, 'I have a boyfriend. I'm not interested.' " A district attorney's investigator testified that Jacob said "he heard Jane Doe tell the defendant that she was not interested in him."
After the close of evidence, defense counsel withdrew his request for a limiting instruction regarding Jane's out-of-court statements about her lack of interest in defendant. The trial court memorialized discussions regarding that limiting instruction: "The Court indicated, when we were going over jury instructions yesterday, that if [defense counsel] wished I would give an instruction to the jury indicating that the evidence had been admitted for a limited purpose. I think [defense counsel] was making a strategic determination that he would rather not highlight that evidence once again in the Court giving the limiting instruction and would rather avoid that." Defense counsel responded: "Correct. And I withdrew the request."
During closing argument, defense counsel argued that the "only" issue for the charges involving Jane was "[c]onsent." Defense counsel argued that the evidence showed Jane wanted to have sexual contact with defendant, and that Jane lied when she testified that defendant forced her to engage in sexual relations.
2. Defendant has Failed to Show Deficient Performance
Defendant contends that defense counsel rendered ineffective assistance when he "failed to enforce the court's offer to give a limiting instruction that [Jane's] hearsay statements that she was not interested in [defendant] were not to be considered for the truth of the matter asserted." (Capitalization omitted.) Defendant's argument is not persuasive.
Defense counsel made a tactical decision when he declined a limiting instruction regarding Jane's out-of-court statements about her lack of interest in defendant. The record shows that defense counsel made a "strategic determination" that he "would rather not highlight" those statements with a limiting instruction. This tactical decision was reasonable.
The mere utterance of the statements—regardless of their truth—strongly suggested that defendant used force to accomplish his sexual contact with Jane. Given that the defense was consensual sexual contact, defense counsel made a reasonable tactical decision when he declined a limiting instruction regarding the statements. "[T]he decision whether to object, move to strike, or seek admonition regarding such testimony is highly tactical, and depends upon counsel's evaluation of the gravity of the problem and whether objection or other responses would serve only to highlight the undesirable testimony." (People v. Catlin (2001) 26 Cal.4th 81, 165.) Defense counsel here reasonably determined that he did not want to highlight undesirable evidence with a limiting instruction, and we will not second-guess that tactical decision. (See Scott, supra, 15 Cal.4th at p. 1212.) Defendant cannot show deficient performance.
C. Defense Counsel Did Not Render Ineffective Assistance in his Closing Argument
1. Background
During closing argument, the prosecutor described the elements of the forcible penetration charge: "[T]here are four things that need to be proven. Defendant committed an act of sexual penetration with another person. Penetration was accomplished by using a foreign object, substance, instrument, device, or unknown object. The other person didn't consent. And it was—defendant accomplished the act . . . ' through force.' "
The prosecutor made the following argument regarding the first element of the crime, an act of sexual penetration: "So first the defendant committed an act of sexual penetration with another person. You heard from Jane Doe's testimony that he had stuck his hand inside of her underwear and was—with his finger was touching her clitoris, was attempting to stimulate her. And you heard that when she also spoke to the D.A. investigator, she was a little more detailed and did say that he penetrated her genital opening when he was touching her."
The prosecutor made the following argument regarding the third element of the crime, consent: "Third, the other person did not consent. And you heard . . . the testimony of what happened. She's saying 'no.' She's struggling against him and telling him she doesn't want this, and stop. Clearly did not consent."
During his closing argument, defense counsel argued: "Next there's some charges, the sexual assault charges you all heard about. I know we had a great deal of testimony about these particular issues. I'm not going to put the elements up on the board because there's really only one issue. Consent. Was there consent?"
Defense counsel then presented a version of events in which Jane willing engaged in sexual activity with defendant. Defense counsel argued that Jane "made a decision that she was going to have sex with [defendant]." Defense counsel asserted that defendant and Jane were "flirting" and "making out" at the party, defendant and Jane "constantly were together" at the party, Jane wanted "to get some privacy" with defendant, and Jane wanted "to be alone with" defendant in his bedroom. In arguing that the sexual contact was consensual, defense counsel emphasized that defendant did not lock the bedroom door, Jane never screamed, Jane suffered "[n]o injuries," and Jane had "[n]o ripped clothes." Defense counsel argued that the evidence showed that defendant and Jane "were both willing participants in this event."
In his closing argument, defense counsel repeatedly asserted that Jane "lied" when she testified that defendant forced her to engage in sexual activity. Defense counsel argued that Jane had a strong motive to lie about her sexual activity because "she's married with a kid," her "family's at stake," and she "has a ton on the line." Defense counsel emphasized: "[D]on't listen to anything Jane Doe said. She lied. We know she lied."
2. Defendant has Failed to Show Deficient Performance
Defendant contends that defense counsel was deficient because he "failed to argue to the jury that the actus reus of the [forcible penetration] offense had not been committed and that if the actus reus was committed, [defendant] was nonetheless innocent since he had a reasonable and good faith belief that [Jane] consented to his advances." (Capitalization omitted.) Again, defendant's argument is unavailing.
"The right to effective assistance extends to closing arguments. [Citations.] Nonetheless, counsel has wide latitude in deciding how best to represent a client, and deference to counsel's tactical decisions in his closing presentation is particularly important because of the broad range of legitimate defense strategy at that stage. Closing arguments should 'sharpen and clarify the issues for resolution by the trier of fact,' [citation], but which issues to sharpen and how best to clarify them are questions with many reasonable answers." (Yarborough v. Gentry (2003) 540 U.S. 1, 5-6.) Judicial review of a defense attorney's closing argument is therefore "highly deferential." (Id. at p. 6.)
Defense counsel "does not render ineffective assistance by choosing one or several theories of defense over another." (Cunningham, supra, 25 Cal.4th at p. 1007.) "Failure to argue an alternative theory is not objectively unreasonable as a matter of law." (People v. Thomas (1992) 2 Cal.4th 489, 531 (Thomas).) "That the two arguments are not absolutely incompatible does not vitiate a choice to make one or the other." (Id. at pp. 531-532.)
Defendant has failed to show any deficiency in defense counsel's closing argument. We have reviewed defense counsel's entire closing argument, and he competently argued that the evidence showed a consensual sexual encounter. Defense counsel pointed to numerous pieces of evidence that evinced Jane's consent to the charged sexual activity, and defense counsel vigorously argued that Jane had a strong motive to falsely testify that defendant forced her to engage in sexual activity. Defense counsel's argument had the potential to completely absolve defendant of liability on all counts involving Jane. This tactic was reasonable.
Defendant contends that defense counsel was deficient because he failed to argue "lack of proof of the penetration element" as an alternative theory for the forcible penetration charge. Defendant emphasizes that he denied penetration when he testified. Defendant's argument is not persuasive. Defense counsel's theory of the case was that Jane sought privacy with defendant and willingly participated in sexual conduct with defendant. Defense counsel emphasized that Jane "made a decision that she was going to have sex with [defendant]." Defense counsel could have reasonably concluded that an argument regarding lack of penetration would have undermined the theory that Jane willingly sought out sexual activity with defendant. Moreover, defendant's testimony regarding lack of penetration was not particularly compelling. Defendant did not absolutely deny penetration; rather, defendant testified that he was "pretty sure" that he did not "like penetrate her or something like that" and "only probably touched her underwear because there was nothing on [his] hands." (See generally People v. Quintana (2001) 89 Cal.App.4th 1362, 1364 [sexual penetration requires only "penetration of the labia majora," not "penetration of the vagina"].) Defense counsel was not deficient for failing to argue lack of penetration as an alternative theory. (See Cunningham, supra, 25 Cal.4th at p. 1007; Thomas, supra, 2 Cal.4th 489 at pp. 531-532.)
Nor was defense counsel deficient for failing to argue the alternative theory that defendant had a reasonable and good faith belief that Jane consented. Defendant points out that "reasonable though mistaken belief in consent" is a defense to a charge of forcible sexual penetration. (People v. Dominguez (2006) 39 Cal.4th 1141, 1147.) Defendant also points out that such a defense is applicable when the victim engages in "equivocal conduct" that causes the defendant to reasonably believe that consent exists. (Id. at p 1148.) Again, defendant cannot show deficient performance. Defense counsel competently argued that Jane was an enthusiastic and willing participant in the sexual encounter with defendant. It would have seriously undercut the theory of actual consent if defense counsel had additionally argued that Jane engaged in equivocal conduct that caused mistaken belief in consent. "Closing argument is as much an art as a science . . . . Counsel must establish as much credibility with the jurors as possible if his effort to persuade them is to succeed." (People v. Fairbank (1998) 16 Cal 4th 1223, 1251.) Defense counsel was not deficient for failing to argue the alternative theory that defendant had a reasonable and good faith belief that Jane consented. (See Cunningham, supra, 25 Cal.4th at p. 1007; Thomas, supra, 2 Cal.4th 489 at pp. 531-532.)
D. Defendant Did Not Suffer Cumulative Prejudice
Defendant finally contends that the forcible penetration conviction must be reversed "due to the cumulative prejudice flowing from defense counsel's multiple errors." (Capitalization omitted.) This argument fails.
Where there are "numerous deficiencies in defense counsel's performance," reversal is required if there "exists a reasonable probability that the outcome ... would have been different but for the cumulative impact of defense counsel's numerous failings." (In re Jones (1996) 13 Cal.4th 552, 584, 587 (Jones).) Here, reversal is unwarranted because we have found no deficiencies in defense counsel's performance. Moreover, the issue with a cumulative prejudice claim is whether "the justice of [the judgment] was rendered unreliable by a breakdown in the adversary process caused by deficiencies in counsel's assistance." (Strickland, supra, 466 U.S. at p. 700; Jones, supra, 13 Cal.4th at p. 587.) We believe that defense counsel here competently represented defendant, and there was no such breakdown in the adversary process. We need not reverse due to cumulative prejudice. II. PENAL CODE SECTION 654
Defendant contends that the sentence for his assault conviction in count 1 "must be stayed pursuant to Penal Code section 654." We are unable to grant such relief.
The trial court never imposed a sentence for the assault conviction in count 1. We have reviewed the entire record, and we have found no oral or written pronouncement of sentence for count 1. Indeed, defendant concedes that the trial court "failed to pronounce judgment on" count 1.
We cannot stay a sentence that has not been imposed. Given that the trial court never imposed a sentence on count 1, we are unable to order the stay that defendant requests. (See generally People v. Jones (2015) 236 Cal.App.4th 1411, 1416 [under Penal Code section 654, a stayed sentence is one that has first been imposed].)
DISPOSITION
The judgments are affirmed.
/s/_________
RUSHING, P.J. WE CONCUR: /s/_________
PREMO, J. /s/_________
GROVER, J.