Opinion
H044323
10-01-2018
THE PEOPLE, Plaintiff and Respondent, v. JAIME TAPIA SERVIN, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1517460)
A jury found defendant guilty of two counts of forcible rape. Defendant challenges the upper term imposed on the principal count, arguing that his attorney rendered ineffective assistance by failing to object to the court's dual use of facts both to support consecutive sentences and the aggravated term. Finding no deficient performance or prejudice from the lack of an objection, we will affirm the judgment.
I. BACKGROUND
Defendant was charged with the forcible rape of Nancy Doe. (Pen. Code, § 261, subd. (a)(2).) Defendant was Doe's mother's boyfriend, and the two had lived together in San Jose for about a year. Doe's younger brother and defendant's two children lived with them. Doe, who lived in Tijuana with her three children and their father, would often bring her children to the United States for medical care, and they would stay with her mother. Doe and her four-year-old daughter had been staying with her mother and defendant for several weeks.
Doe's mother and defendant broke up, and Doe's mother and brother moved out of the house. A friend of Doe's mother took them in but did not have room for Doe and her daughter. Doe was 23 years old and four months pregnant at the time. She planned to return to Mexico after an upcoming ultrasound appointment. In the meantime, she had nowhere to live, and defendant told her she could stay on in his house.
The night Doe's mother and brother moved out, defendant entered Doe's bedroom after she had fallen asleep, positioned himself on top of her, and forcibly raped her while her daughter slept next to her in the same bed. Defendant, who smelled of alcohol, told Doe he had always had feelings for her, and she and her children could come live with him. Defendant left Doe around 3:00 a.m. He returned to her room around 6:00 a.m. and raped her a second time. He restrained her face with his hand, bruising her near her ear and mouth. Before leaving for work, he left her the keys to his second truck and money to take his children to eat.
Doe called her mother after defendant left. She went to the hospital and underwent a SART exam. The SART nurse observed vaginal and labial injury consistent with sexual assault, and sperm found in Doe's vagina's was identified through DNA as defendant's. Defendant testified he had sex with Doe in the middle of the night after drinking beer for several hours, and the sex was consensual.
A jury found defendant guilty of both charged rape counts. In support of eight-year upper terms, the prosecution filed a sentencing memorandum emphasizing several aggravating factors enumerated in the California Rules of Court, rule 4.421. The prosecution cited the violent, cruel, vicious, and callous nature of the crimes (defendant was a 200 pound man who positioned himself atop a pregnant woman, pinned her arms above her head, told her not to scream, and raped her twice with her daughter next to her, the second time causing bruising to her face); Doe's vulnerability given her pregnancy; defendant taking advantage of a position of trust (he was Doe's mother's boyfriend and Doe stayed in his home with her daughter after her mother moved out); the planning and sophistication (he raped Doe in his house in the middle of the night when she was most vulnerable); defendant's violent conduct indicating a serious danger to society (he acknowledged no wrongdoing, and his risk assessment score indicated a moderate to high likelihood of reoffending); and numerous prior convictions of increasing seriousness (two DUI convictions and a battery conviction, and the rapes occurred after he had been drinking). In support of the maximum sentence, the probation report also listed as aggravating factors the victim's vulnerability (being four months pregnant), defendant taking advantage of a position of trust to commit the offense, defendant's violent conduct, and his prior convictions.
Seeking a mitigated sentence, defendant submitted a sentencing memorandum; adult education, recovery, and rehabilitation program certificates; personal improvement worksheets; several letters from family and friends attesting to his good character; and his own hand-written letter.
At the sentencing hearing the court acknowledged having read and considered the probation report, sentencing memoranda, and materials submitted by defendant. The prosecutor argued for the maximum prison term, emphasizing the aggravating factors set forth in her sentencing memorandum. Defendant's attorney did not dispute the aggravating factors. He attributed the rapes to alcohol abuse and argued they did not reflect defendant's true character. He asked the court to consider the positive character defendant had demonstrated throughout his life, and to mitigate the sentence to encourage a positive reentry into society and return to family life.
In pronouncing sentence, the court stated that the two counts would run consecutively because the offenses were separated by three hours. The court acknowledged the positive character letters, but found them insufficient to warrant mitigation. The court stated its intent to impose the upper term on count 2, explaining: "The Court is especially bothered by the second rape. This is something that occurred approximately three hours after the initial assault. And during this period of time, [defendant] had the opportunity to reflect on this profound assault that he had just committed and to perhaps reassess and just think about what he had done to [Doe]. [¶] Instead, he chose to reenter her room and rape her again. In the Court's view, with respect to that second Count, that aggravates the matter."
Under Penal Code section 667.6, a "full, separate, and consecutive term shall be imposed for [rape] if the crime[] involve[s] separate victims or involve[s] the same victim on separate occasions." (Pen. Code, § 667.6, subds. (d), (e)(1).)
Defendant's attorney urged the court to at least consider two middle terms, pressing that defendant had two young children and even with middle terms would serve over a decade in prison. He implored the court to extend hope to defendant, and not judge him based on four misguided hours. The court rejected counsel's pleas: "But we have to remember that the Court has a responsibility to see that justice is done and that the community remains safe, and that the harm caused to the victim is innocuous [sic]. [¶] And I thought about it long and hard about six years on each Count. But as I thought about the sequence of events, and as I noted a little bit earlier, the opportunity for your client after the first attack to take a step back, rethink what he was doing and to halt the assault, and then the decision to go back again for that second assault in this Court's view aggravates the case." Defendant's attorney again argued for a lesser term, asking the court to consider the welfare of defendant's children and their need for a father. The court adhered to its stated decision and rationale. Defendant was sentenced to the upper term of eight years on count 2, consecutive to a six-year middle term on count 1, for a total term of 14 years.
II. DISCUSSION
Defendant argues that the trial court erred by using the same factor—his opportunity to reflect before raping Doe a second time—to impose both consecutive sentences and an aggravated term on count 2. Acknowledging that the claim was forfeited under People v. Scott (1994) 9 Cal.4th 331, 353 (forfeiture rule applies to cases in which trial court "fail[s] to properly make or articulate its discretionary sentencing choices"), defendant alternatively frames his argument as an ineffective assistance of counsel claim. The Attorney General concedes the sentencing error but argues that counsel's failure to draw the court's attention to the error did not result in constitutionally deficient representation.
An ineffective assistance claim requires a showing both that counsel's performance fell below an objective standard of reasonableness and that defendant was prejudiced by the deficient performance. (Strickland v. Washington (1984) 466 U.S. 668, 687.) "Unless a defendant establishes the contrary, we shall presume '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.' " (People v. Ledesma (2006) 39 Cal.4th 641, 746.) "[C]ompetency is presumed unless the record affirmatively excludes a rational basis for the trial attorney's choice." (People v. Musselwhite (1998) 17 Cal.4th 1216, 1260.) To prove prejudice, a defendant must affirmatively show a reasonable probability that the result would have been different but for trial counsel's errors. (Ledesma, at p. 746.) A reasonable probability is "a probability sufficient to undermine confidence in the outcome." (People v. Williams (1997) 16 Cal.4th 153, 215.)
Defendant argues that trial counsel's failure to object could not have been tactical because the sentence was unlawful, defendant sought a mitigated sentence, and no harm would have resulted from an objection. But counsel simply could have considered an objection futile because several aggravating factors supported an upper term on either or both counts, and an objection would have only resulted in the court reciting one or more of the factors noted by the prosecution. (See People v. Alvarado (2001) 87 Cal.App.4th 178, 194 [rejecting deficient performance claim for failing to request a statement of reasons for imposing consecutive sentences where court's decision was express and record supported two criteria for consecutive terms].)
Defendant has not shown prejudice from trial counsel's failure to alert the court to its dual use of facts. We do not view the court's comments at sentencing as expressing "conflict as to which term to select," as defendant argues. The fact that it had "thought long and hard" about its sentencing choice simply demonstrates that it thoroughly considered defendant's arguments and circumstances. Indeed, the court did not equivocate when twice implored by defendant's attorney to reconsider its indicated sentence. Instead, the court emphasized defendant's risk to community safety and the harm he had inflicted on Doe. It described the first assault as profound, it was aware that the second rape involved force resulting in visible facial injuries, and it noted defendant's criminal record as highlighted by the prosecutor. Given the deliberation reflected in the hearing transcript and the multiple concerns articulated by the trial court, we see no reasonable probability of a more favorable sentence had the court been alerted at sentencing to the need to refine its statement of reasons for selecting the upper term.
We dispose of the petition for writ of habeas corpus filed by defendant during the pendency of this appeal (H046109) by separate order filed this day. The petition raises the same ineffective assistance claim advanced on appeal, and we reach the same conclusion as in the appeal. --------
III. DISPOSITION
The judgment is affirmed.
/s/_________
Grover, J.
WE CONCUR:
/s/_________ Greenwood, P. J. /s/_________ Bamattre-Manoukian, J.