Opinion
B235411
01-26-2012
THE PEOPLE, Plaintiff and Respondent, v. JUAN ORDONEZ, Defendant and Appellant.
Robert K. Steinberg for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General, and Noah P. Hill, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. TA115055)
APPEAL from the judgment of the Superior Court of Los Angeles County. Michael Shultz, Commissioner. Affirmed.
Robert K. Steinberg for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General, and Noah P. Hill, Deputy Attorney General, for Plaintiff and Respondent.
SUMMARY
Juan Ordonez (defendant) was charged by information with assault with intent to commit rape (Pen. Code, § 220, former subd. (a), count 1), sexual penetration by foreign object (Pen. Code, § 289, subd. (a)(1), count 2), and dissuading a witness from testifying (Pen. Code, § 136.1, subd. (a)(1), count 3). The jury convicted him of counts 1 and 2, but deadlocked on count 3, for which the trial court declared a mistrial. Defendant contends insufficient evidence supports his conviction because victim M.O.'s testimony was inherently improbable. Defendant contends the configuration of the car in which he assaulted M.O. was such that he could not have attacked her the way she described in her testimony. He also claims he received ineffective assistance of counsel because his trial attorney failed to seek admission of a photograph of the car. We disagree and therefore affirm.
FACTS
Defendant and M.O. worked at the Port of Los Angeles. Defendant and M.O. worked in different areas of the port and had only met each other a couple of times. On one of those occasions, M.O. gave defendant a ride home with some other friends. Their mutual friend and coworker, Victor L., hosted a Labor Day party at his home on September 6, 2010, which M.O, defendant, defendant's wife, and several others attended.
When M.O. arrived at the party at 3:00 p.m., defendant and his wife were already there. M.O. had two alcoholic beverages, but stopped drinking at 4:00 p.m. She noticed defendant was drinking tequila.
M.O.'s daughter called M.O. at 8:00 p.m., asking to be picked up from her grandmother's house. As M.O. prepared to leave to pick up her daughter, defendant asked her for a ride home because his wife had left with their car earlier in the evening. M.O. agreed, and they left the party together.
M.O. stopped at a gas station on the way to defendant's house to use the restroom. Defendant gave her $6.00 for gas. When M.O. got back in the car, defendant kissed her on the corner of her mouth. She thought it was "a little weird," as she had no romantic interest in defendant. She dismissed the kiss as an expression of gratitude for the ride and started the car to drive defendant home, following his directions.
When defendant told her to stop the car, she turned off her lights, pulled over to the curb, and kept the engine running. Defendant reached over and turned off the ignition, and put the car's transmission in "park." M.O.'s car was a 1998 Nissan Maxima, with bucket seats divided by a center console. M.O. opened her door to get out of the car, but defendant lunged on top of her, crossing from the passenger seat to the driver's seat over the center console, and closed the door. M.O.'s torso was 10 or 11 inches from the steering wheel. As defendant got on top of her, he lowered the back of her seat to a 30-degree angle. Although the tilt of the seat could be adjusted, the seat could not be moved forward or backward because it was broken.
M.O. could not breathe, and asked defendant, "'What are you doing?'" Defendant did not respond. He pressed one of his arms into her chest, pulled down M.O.'s shirt and bra, and began to suck on her breast. It hurt, and felt like defendant was biting or sucking very hard. Defendant then pulled at M.O.'s pants and underwear, working them down to her knees. M.O. resisted, yelling for defendant to get off of her. Defendant tried to force M.O.'s knees apart, exposed his erect penis, and tried to position his body so that he could insert it into her vagina. He was unable to do so, and instead inserted his fingers. M.O. told him to stop, but he did not respond. M.O. had recently undergone a gynecological surgery and was ordered by her doctor not to insert anything in her vagina.
A truck pulled into a nearby driveway, and defendant got off of M.O. As he pulled away from her, M.O. could hear her "steering wheel crackling" when defendant was "squeezing himself'' out of the driver's seat. He shook his head, saying, "I'm sorry. I'm sorry. This is not where I live." He asked if M.O. could drive him home. She drove him home because she was "scared and shocked."
M.O.'s daughter testified that M.O. picked her up at nearly 10:00 p.m. She noticed that her mother had been crying and that her chest was red. M.O. was uncharacteristically quiet as she drove home. When her daughter asked what was wrong, M.O. told her she did not want to talk about it, although she later told her daughter about the assault.
On September 8, 2010, M.O. told Victor L. about defendant's attack on her. She cried as she told him. Victor told M.O. that defendant had been acting strange at work and had asked for M.O.'s phone number. Victor testified that he asked defendant about M.O.'s allegations. Defendant told him that he did not remember what happened but felt guilty and wanted to talk to M.O. about it. Victor asked M.O. if she would be willing to meet with defendant to "[h]ear him out," and she agreed.
On September 11, 2010, M.O. met Victor L. and defendant in a Target parking lot in Carson. M.O. got into defendant's car as Victor remained nearby. Defendant thanked M.O. for not calling the police or telling his wife. M.O. cried and did not respond. Defendant gave M.O. his phone number.
Later that day, M.O. told her boyfriend about the attack. He encouraged her to make a report to the police.
On September 13, 2010, M.O. called defendant and told him she wanted to discuss the attack. M.O. was upset that she had not expressed herself at the parking lot and wanted to let defendant know how she felt. Later that day, the two met at a Long Beach restaurant. M.O. took a seat, and defendant sat down next to her on the same side of the table.
M.O. told defendant that what he had done was "not right," and asked how he would feel if someone did that to his daughter (defendant was 56 and M.O. 31 at the time of trial). M.O. told defendant, "I shouldn't let you get away with something like this." Defendant told her he was sorry, but retorted, "I didn't rape you."
Defendant said that American women just want money and asked M.O. whether she wanted money. She told him, "I don't need your f----money." Defendant told her that no one would believe her if she reported the attack. M.O. told defendant she would report him to the police, and left the restaurant. Defendant followed her into the parking lot, took out his checkbook, and offered to pay her if she would "keep quiet." M.O. got in her car and drove to the Los Angeles County Sheriff's Department in Carson.
M.O. made a report to a Sheriff's deputy, who photographed a bruise on her breast. Detective Kimberly Mendoza was assigned to investigate the case. M.O. and Detective Mendoza made a pretext call to defendant, which Mendoza recorded. M.O. told defendant that she wanted to "be at peace" because they worked together. Defendant expressed that he also wanted to be at peace, but was worried that if he called M.O., she would "be offended again." M.O. told defendant, "I feel like you are obligated to -- to say I am sorry, and what you did with me was not right and you didn't -- you told me that you were, I don't know, blaming it on that you were drunk, that you don't remember anything. And when I told you that you forced yourself on top of me, and you pulled down my blouse -- oh, I feel like crying . . . ." Defendant responded, "We better be at peace now . . . no, forgive me; I really don't want to do you any harm."
When M.O. told defendant that what he did was not right, he responded, "Forgive me for all that I've offended you. Forgive me. And I am sorry for the wrong that I did." When M.O. asked, "So, you know you did wrong, right?" defendant responded, "Of course." When M.O. told defendant she was afraid to go to work because she might see him, he told her not to worry, "I am no animal." When she told him he acted like an animal when he tried to force sex upon her, he responded, "I cannot even explain it myself, because I start to think about what happened and I try to remember and sometimes I say, [unintelligible] it's difficult, then. It's difficult to try to -- to rectify something that already happened. I can't rectify it." M.O. expressed that she wanted defendant to recognize that what he did was wrong; he responded, "Yes, of course I recognize what I did was wrong." When M.O. accused defendant of trying to rape her, he said, "I am so sorry . . . ."
Defendant testified at trial. In many respects, his testimony was consistent with M.O.'s. Defendant's version of the events began with him and M.O. talking, dancing and drinking together at the party. When they stopped at the gas station after leaving the party, M.O. placed her hand on his knee, thanked him for the gas money, and kissed him on his mouth. After they left the gas station and M.O. had driven one or two blocks, defendant asked M.O. if she wanted to talk; she pulled the car over. At that point, defendant wanted to have sex with her. M.O. asked him to "come over here," and the two started kissing. Defendant unbuttoned M.O.'s pants, and M.O. touched his penis. He slid over the car's console to get on top of M.O., but there was not enough room. M.O. answered a call from her daughter, and then they moved to the back seat of the car. When a car pulled into a nearby driveway, M.O. commented, "You know what? This is very uncomfortable. I'm late to pick up my daughter. Let's do this another day." M.O. then drove defendant to his home.
Four days later, Victor L. called defendant and told him that M.O. wanted to speak with him. Defendant wanted to speak with her as well; he was feeling remorseful for being unfaithful to his wife and did not want M.O. to think there was something between them. When they met in the Target parking lot, M.O. asked why defendant had not called her. He said he did not have her phone number and that they could not be romantically involved because he was married. M.O. became angry and asked what his intentions had been. Defendant explained to M.O. that what happened between them occurred because they were drinking. M.O. said there was no reason they could not be friends, and defendant gave her his phone number.
M.O. called defendant on September 13, 2010, and suggested they meet at a restaurant. At the restaurant, M.O. told defendant she had financial problems and asked for his help. She told him, "This way, I'm not gonna say absolutely nothing to your wife." Defendant asked M.O. if she was blackmailing him, and she responded, "Yes, that's what I'm doing, because the things we did, you were just gonna laugh at me."
During the recorded phone conversation with M.O., defendant apologized for starting a romantic relationship with M.O. that he did not intend to continue.
DISCUSSION
1. Sufficiency of the Evidence
"In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Bolin (1998) 18 Cal.4th 297, 331.) "The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt." (People v. Mincey (1992) 2 Cal.4th 408, 432.) Therefore, the reviewing court's "opinion that the evidence could reasonably be reconciled with a finding of innocence or a lesser degree of crime does not warrant a reversal of the judgment." (People v. Hill (1998) 17 Cal.4th 800, 849.) Reversal is warranted only when it clearly appears "'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].'" (People v. Bolin, supra, at p. 331.)
We defer to the trier of fact's evaluation of credibility. (People v. Snow (2003) 30 Cal.4th 43, 66.) Neither suspicious testimony nor conflicts in the evidence justify the reversal of a judgment, because it is the exclusive province of the trier of fact to determine the credibility of witnesses and the truth or falsity of the facts testified to. (People v. Huston (1943) 21 Cal.2d 690, 693, overruled on other grounds in People v. Burton (1961) 55 Cal.2d 328, 352.) An exception to this rule is when the witness's statements are physically impossible or inherently improbable. To be inherently improbable, the falsity of the statements "'"'must be apparent without resorting to inferences or deductions.'"'" (People v. Sassounian (1986) 182 Cal.App.3d 361, 409.)
Defendant contends it was impossible for him to climb over the console and get on top of M.O. because there was only a 13-inch space between her torso and the steering wheel. He also claims he could not have pulled her pants down because she was wearing her seatbelt and was supposedly pressed underneath him. He reasons that these impossibilities render M.O.'s version of events impossible or inherently improbable. Since M.O.'s testimony was sufficient to sustain defendant's conviction, we could reverse the conviction only if we were to find M.O.'s testimony was impossible or inherently improbable. (People v. Richardson (2008) 43 Cal.4th 959, 1030.)
The jury was able to observe defendant and M.O. testify, assess their demeanor, and determine if defendant could reasonably fit in the space described by M.O., and could manipulate her pants the way M.O. described, which she testified were loose and "stretched . . . out." M.O. testified that as defendant lunged over the center console, he lowered the seatback to a 30-degree angle, creating more room for him to climb astride her. Nothing about this scenario is impossible or outlandish. There is no evidence that defendant was exceptionally large. And, defendant admitted that he tried to climb on top of M.O. When asked whether "at any time did you climb over that console," defendant responded, "Yes, I did, but it was in the heat of the moment we were going through." When asked whether he ever got on top of M.O., he testified, "The truth is, I tried, but the situation was so hard that we had trouble trying to do it." Defendant testified that he kissed M.O.'s breast, exposed his penis, opened her pants, and wanted to have sex with her. The exact positioning of the parties or how much her pants were opened goes to the accuracy of M.O.'s recollection (and therefore her credibility), but does not defeat any element of the subject offenses. (Pen. Code, §§ 220, former subd. (a), now subd. (a)(1), 289, subd. (a)(1)(A).)
Neither is M.O.'s testimony rendered improbable because she drove defendant home after the attack, later met with him to discuss it, or waited a week to report the crime. M.O. testified that she was in shock after the attack. Also, defendant was not a stranger to her, and it is not inexplicable that she might want to discuss what happened in the safety of a public place, or may have had reservations about reporting the assault.
2. Ineffective Assistance of Counsel
Defendant contends his trial attorney provided ineffective assistance of counsel because he did not seek the admission of a photograph of the interior of M.O.'s car. "Under both the Sixth Amendment to the United States Constitution and article I, section 15 of the California Constitution, a criminal defendant has a right to the assistance of counsel. [Citations.] This right 'entitles the defendant not to some bare assistance but rather to effective assistance.' [Citation.]" (People v. Mitchell (2008) 164 Cal.App.4th 442, 466.) In order to demonstrate ineffective assistance of counsel, defendant must show that counsel's performance fell below an objective standard of reasonableness, and that he was prejudiced by counsel's performance. (Id. at pp. 466-467.)
To the extent defendant claims his trial attorney failed to introduce evidence essential to his defense, such matters are outside the record (we denied defendant's motion to augment the record to include a photograph of a similar vehicle), and therefore, the issue is more appropriately decided by habeas petition. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.) Also, because the record does not disclose counsel's reasons for not seeking admission of the evidence, we must uphold the conviction unless no satisfactory explanation could exist for his decision. (People v. Lucas (1995) 12 Cal.4th 415, 436-437; People v. Jones (2003) 29 Cal.4th 1229, 1254 ["'"Reviewing courts defer to counsel's reasonable tactical decisions in examining a claim of ineffective assistance of counsel"'"].) Here, demonstrative evidence was not necessary because both M.O. and defendant provided detailed descriptions of the car, and their descriptions were largely consistent and fully conveyed how difficult it was for defendant to get on top of M.O.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
GRIMES, J.
WE CONCUR:
BIGELOW, P. J.
RUBIN, J.