Opinion
B159761.
7-22-2003
THE PEOPLE, Plaintiff and Respondent, v. STEVEN REFUGIO TORRES, Defendant and Appellant.
Raymond L. Girard, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters, Supervising Deputy Attorney General, G. Tracey Letteau, Deputy Attorney General, for Plaintiff and Respondent.
Appellant Steven Refugio Torres was tried before a jury and convicted of several felonies arising from a physical and sexual assault against his former girlfriend: two counts of forcible rape, one count of forcible oral copulation, two counts of criminal threats and one count of inflicting corporal injury upon the mother of his child, with findings that he personally used a knife in the commission of the sexual offenses and one of the criminal threat counts. (Pen. Code, §§ 261, subd. (a)(2), 288a, subd. (c)(2), 422, 273.5, subd. (a), 667.61, subds. (b), (c)(1) & (e)(4), 12022.3, subd. (a), 12022, subd. (b)(1).) He contends: (1) the trial court erred by admitting evidence of statements made in response to police questioning after he had invoked his right to counsel; (2) his trial attorney was ineffective because he did not object to expert testimony about battered womans syndrome and did not request a limiting instruction on that evidence; (3) the evidence of and jury instructions about prior acts of domestic violence violated his right to due process; and (4) CALJIC No. 2.90 was constitutionally defective. We affirm.
FACTS
Appellant and Angele M. lived together for about two years and have a daughter. They were engaged to be married but separated in early 1999. Appellant visited his daughter on Fathers Day of that year and argued with Angele about his plan to take the child to a cemetery to see a relatives grave. He grabbed Angeles neck, pushed her onto a couch and struck the couch with his fist several times. Angele dialed 911 on her cell phone while appellant was in the bathroom, and the police arrived soon after.
Angele and appellant reconciled for a few months beginning in December of 1999. In April of 2000, after they had separated again, they had another physical altercation. Appellant went to Angeles home to retrieve some property and wanted her to return an engagement ring he had given her. When she refused, he tried to take it from her by twisting her finger and pulling her hand over her head. Angele again called the police and had almost no contact with appellant for about a year.
In March of 2001, appellant began staying at Angeles house. He would baby-sit their daughter and Angeles other child while Angele attended school at night. Appellant and Angele were friendly with each other during this period, but they did not resume a romantic relationship and did not have sex. Appellant said he was seeing somebody, and admitted that he had been involved with this woman while still with Angele. Angele told appellant she was dating someone because she did not want him to get ideas about resuming their relationship.
One night Angele went out for dinner and drinks with Arthur M., a male friend whom appellant believed she was dating. The children were spending the night at her mothers and appellant stayed at her apartment. Angeles cell phone rang on the way home, and she allowed Arthur to answer after seeing that the call was from appellant. Appellant and Arthur had a brief conversation in which appellant said that Angele was pregnant with his (appellants) child. Angele called appellant back, irate, and told him to mind his own business.
After speaking with appellant again on the phone, Angele picked up her car and drove home. When she arrived, appellant met her at the front door, pulled her inside and locked the door. He threatened to kill her, choked her and repeatedly hit her head against the floor. During the attack, he demanded to know where she had been that evening. Appellant took Angele into the bedroom and retrieved a knife from the kitchen; he then raped her twice and forced her to orally copulate him once. Before she fell asleep, appellant told her she would not wake up in the morning.
The following morning was Easter Sunday. Angele awoke and started getting ready to go to church. Appellant helped her put on make-up to conceal the bruises on her face and neck. Angeles plan was to try to keep appellant with her until she could talk to someone so he would not get away from the police. At church, she told a two friends that appellant had beaten her. Officers came to her house later that morning and arrested appellant after one of these friends called the police on the way home after the service. The knife appellant had used during the attack was found in a dresser drawer in Angeles bedroom.
Angele was examined by a nurse with the sexual assault response team (SART). She had bruises on her ears, chin, eyelids, neck, elbow, arm and upper back. There were red dots on her scalp from bleeding under the skin and both of her eardrums had ruptured. Angele did not have signs of genital trauma, but the nurse who examined her said that this was consistent with her explanation that she had not physically resisted during intercourse due to her fear.
Appellant spoke to police and denied the sexual assault. He claimed that Angele had returned home drunk and angry and had initiated sex with him after an argument. He thought Angele was making things up to get back at him for having had an affair when they were still together. After his arrest, appellant left a telephone message on Angeles answering machine in which he said he was sorry for everything, but he had not thought she would go that that far. In his testimony at trial, appellant admitted hitting Angele after she came home and began hitting him. He acknowledged having sex with her that night, but claimed it was consensual.
Appellants ex-wife testified that appellant had slapped her in the face when she was pregnant and had pushed her into a refrigerator and choked her. Appellant once placed his hands on her neck during the middle of the night, but she believed he was having a nightmare.
DISCUSSION
I.
Invocation of Right to Counsel
Appellant claims that he invoked his right to counsel during a police interview on the day of his arrest and argues that the trial court improperly admitted evidence of statements that he made after the invocation. (Edwards v. Arizona (1981) 451 U.S. 477, 484-485, 68 L. Ed. 2d 378, 101 S. Ct. 1880 (Edwards).) The Attorney General responds that appellant did not unequivocally request an attorney during the interview, but even if he did, the subsequent statements were admissible to impeach his trial testimony. (Oregon v. Hass (1975) 420 U.S. 714, 722, 43 L. Ed. 2d 570, 95 S. Ct. 1215 Harris v. New York (1971) 401 U.S. 222, 224-226, 28 L. Ed. 2d 1, 91 S. Ct. 643.) We conclude there was no constitutional violation and the admission of the statements was harmless in any event.
Appellant was interviewed by Oxnard Police Department Detective David Klug after he was taken into custody on Easter Sunday. Klug told appellant he was under arrest and advised him of his rights underMiranda v. Arizona (1966) 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (Miranda), which include the right to remain silent, the right to consult with an attorney and the right to have an attorney appointed if the suspect cannot afford one. Klug then asked whether appellant wanted to talk to him and appellant responded, "Can I have an attorney with me now?" (Italics added.)
Klug replied that no one was available that moment, and asked appellant whether he had an attorney on retainer. When appellant said he did not and that he did not have the money to hire an attorney, Klug advised him that a public defender would be appointed at his arraignment the following Tuesday afternoon. Klug continued, ". . . as far as I know, theres no way to have an attorney appointed prior to that. But, like I said, this is your opportunity - if you want to talk to me you can. I cant force you to. Thats up to you. You have to make that decision."
After he was told he could not get an attorney until his arraignment, appellant began explaining that Angele had come in drunk the night before and demanded sex. Klug responded, "Youre telling me this. Does that mean you want to talk to me?" and appellant replied, "Im talking to you now." The interview continued and appellant admitted hitting Angele and having sex with her, although he claimed the sex acts were consensual and denied threatening Angele in any way. Appellant also explained that he had placed a knife in Angeles dresser drawer in case her boyfriend came over and threatened him.
Appellant argues that all of his statements to Detective Klug should have been suppressed because his question, "Can I have an attorney with me now?" was an invocation of his right to counsel. It is well established that if a suspect invokes his right to consult with counsel during a custodial interrogation, all questioning must immediately cease. (Edwards, supra, 451 U.S. at pp. 482, 484-485; People v. Crittenden (1994) 9 Cal.4th 83, 128, 885 P.2d 887.) But if the reference to an attorney is "ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel," the police may continue their questioning. (Davis v. United States (1994) 512 U.S. 452, 459, 129 L. Ed. 2d 362, 114 S. Ct. 2350; see also Crittenden, at p. 130.)
In Davis v. United States, supra, 512 U.S. at p. 462, the suspects statement, "Maybe I should talk to a lawyer," was held not to be an invocation of his Miranda rights. Appellants question, "Can I have an attorney with me now?" was no less ambiguous than the statement made by the suspect in Davis. In context, appellant was asking about the logistics of immediately obtaining an attorney before making a decision about whether to proceed with the interview without counsel. (See People v. Scaffidi (1992) 11 Cal.App.4th 145, 153-154 [defendants statement, "There wouldnt be [an attorney] running around here now, would there?" was not an invocation of right to counsel].)
Appellant urges us to follow the Ninth Circuits decision in Alvarez v. Gomez (9th Cir. 1999) 185 F.3d 995, in which a defendant was found to have invoked his right to counsel by asking, "Can I get an attorney right now, man?" We are not bound by the opinions of lower federal courts (Etcheverry v. Tri-Ag Service, Inc. (2000) 22 Cal.4th 316, 320, 993 P.2d 366), but also find Alvarez distinguishable.
In Alvarez, the defendant asked three separate questions about getting an attorney after being advised of his Miranda rights: "[Defendant]: Can I get an attorney right now, man? [P] [Police Officer]: Pardon me? [P] [Defendant]: You can have an attorney right now? [P] [Police Officer]: You can have one appointed for you, yes. [P] [Defendant]: Well, like right now you got one? [P] [Police Officer]: We dont have one here, no. Theres not one present now. [Other Police Officer]: There will be one appointed to you at the arraignment, ah, whether you can afford one. If you cant one will be appointed to you by the court. [P] [Defendant]: Alright . . . Ill talk to you guys." (Alvarez v. Gomez, supra, 185 F.3d at p. 996.) Signs in the jailhouse informed arrestees that lawyers were available around the clock, but the defendant was not taken to an area in which the signs were posted. (Id. at p. 998, fn. 3.)
The Ninth Circuit found that defendants repeated questions about his ability to get a lawyer was request for counsel. The signs in the station house indicated that an attorney would have been readily available to assist the defendant during his interrogation, yet the officers made no effort to provide one or clarify whether he was requesting counsel. This gave the case an aura of bad faith. (See Alvarez v. Gomez, supra, 185 F.3d at p. 998, fn. 3.)
By contrast, appellant made a single inquiry about the immediate availability of counsel on the Easter Sunday when he was arrested. There is no indication that Detective Klug was dishonest in his response. After explaining that an attorney would not be available until one was appointed at the arraignment, Klug emphasized that it was up to appellant to decide whether to proceed with the interview, and appellant elected to continue. After appellant began to discuss the facts of the case, Klug again confirmed that appellant wanted to talk to him. There was no constitutional violation.
In any event, appellant was not prejudiced by the admission of the interview statements to Detective Klug. Statements obtained in violation of the Miranda procedures, if voluntary, are admissible for impeachment when the defendant gives inconsistent testimony at trial. (People v. Storm (2002) 28 Cal.4th 1007, 1038, fn. 14.) Appellant spoke voluntarily with Detective Klug even if we assume his ambiguous question was a request for counsel, and those statements which were inconsistent with his trial testimony would have been admitted for impeachment purposes notwithstanding the purported violation of Miranda and Edwards. Those statements which were not inconsistent with his trial testimony, and would not have been admissible for impeachment, were not damaging to his case.
Appellant suggests we should not consider the content of his trial testimony in assessing prejudice, because the admission of his interview statements effectively forced him to take the stand. (See Harrison v. United States (1968) 392 U.S. 219, 223-224, 20 L. Ed. 2d 1047, 88 S. Ct. 2008; People v. Spencer (1967) 66 Cal.2d 158, 168, 57 Cal. Rptr. 163, 424 P.2d 715.) But the prosecution had already rested when the trial court ruled the statements admissible, and all parties understood that the content of the interview would not be introduced into evidence unless appellant testified. Under these circumstances, we can say beyond a reasonable doubt that the admission of the statements did not impel appellant to take the stand. (People v. Powell (1967) 67 Cal.2d 32, 57, fn. 9, 59 Cal. Rptr. 817, 429 P.2d 137.)
Nor was appellant prejudiced by the admission of his statements as substantive evidence, rather than for the limited purpose of impeachment. His defense at trial was that he had hit Angele, but that their sex was consensual. While some of his statements to Detective Klug differed in detail from his trial testimony, he remained steadfast in both his interview and his testimony that he had not forced Angele to have sex. Any error in admitting the interview statements without limitation was harmless beyond a reasonable doubt. (People v. Johnson (1993) 6 Cal.4th 1, 32-33, 859 P.2d 673.)
II.
Ineffective Assistance of Counsel-Failure to Object to Or Request
Limiting Instruction on Evidence of Battered Womans Syndrome;
Failure to Object To Testimony of SART Nurse
The prosecution called Gail Pincus, Ph.D. to testify as an expert witness on battered womans syndrome (BWS), which has been defined as ""a series of common characteristics that appear in women who are abused physically and psychologically over an extended period of time by the dominant male figure in their lives."" (People v. Humphrey (1996) 13 Cal.4th 1073, 1083-1084, 921 P.2d 1.) In a pretrial hearing, defense counsel stated that he was not objecting to this evidence for tactical reasons. Appellant now contends BWS evidence was inadmissible and his counsel was ineffective in failing to object to Pincuss testimony.
To prevail on a claim of ineffective assistance, the record must affirmatively show that counsel had no rational tactical purpose for the challenged act or omission. (People v. Williams (1997) 16 Cal.4th 153, 215, 940 P.2d 710.) An attorneys tactical decisions are accorded substantial deference, and are seldom second-guessed on appeal. (People v. Fairbank (1997) 16 Cal.4th 1223, 1243, 947 P.2d 1321, citing Strickland v. Washington (1984) 466 U.S. 668, 689, 80 L. Ed. 2d 674, 104 S. Ct. 2052.) "As a general rule, failure to object to specific items of evidence involves tactical decisions on counsels part and seldom establishes counsels incompetence." (People v. Johnson , supra, 6 Cal.4th at p. 35.)
The record shows that defense counsel had tactical reasons for acquiescing in the introduction of BWS evidence. He did not specify on the record what those reasons were, but in his closing argument, he attempted to paint Angele as a battered woman who had been in more than one violent relationship and was angry about past abuse. Counsel acknowledged that appellant had hit Angele during an argument, but maintained that she had lied about the forcible sex acts because she wanted to ensure that appellant would go to prison for a long time and never harm her again. Consistent with this strategy, counsel may have believed it was helpful for the jury to hear expert testimony about BWS to support his theory that Angele had a motive to lie about the most serious offenses charged in the case.
Appellant complains that Pincus testified extensively about the tactics of male batterers, which included extreme examples of social isolation, economic control and sexual abuse. He argues that his attorney should have objected to this testimony as improper profile evidence that allowed the jury to infer that he was guilty because he manifested some of the characteristics of a batterer. We are not persuaded. Other than the past acts of physical abuse described by Angele and appellants ex-wife, there was no evidence that appellant had previously engaged in the more egregious types of conduct described by Pincus. Defense counsel could reasonably conclude that his client would not be damaged by testimony about what other men in abusive relationships had done when Pincus had made it clear that she was unfamiliar with the specific facts of this case and was not describing appellants relationship with Angele or offering an opinion about what had happened between them.
We also observe that at least some of the evidence of BWS would have been admissible even if defense counsel had made an objection. The purpose of BWS evidence is to dispel many commonly held misconceptions about victims of domestic violence. (People v. Morgan (1997) 58 Cal.App.4th 1210, 1214.) Evidence of BWS tended to explain why Angele would have resumed her relationship with appellant after the first incident of domestic violence and why she would have allowed appellant to stay in her home after the second incident. Such evidence was probative of Angeles credibility because appellant denied harming her on either of those prior occasions. Counsel is not required to lodge futile objections. (People v. Price (1991) 1 Cal.4th 324, 387, 821 P.2d 610.)
In a related argument, appellant claims that counsel was ineffective because he did not request a limiting instruction such as CALJIC No. 9.35.1, which would have advised the jury that BWS evidence could not be considered as proof that the charged crimes occurred. Assuming without deciding that counsel should have made the request, there is no reasonable probability that the jury would have reached a different result if the instruction had been given. (See People v. Cunningham (2001) 25 Cal.4th 926, 1038.) The purpose of the limiting instruction is to prevent the jury from inferring that the victim has been diagnosed with a syndrome that presupposes the abuse occurred. In this case, Pincus told the jury she had no knowledge of the case and explained that BWS was not a diagnosis. Given the general nature of Pincuss testimony, there is no likelihood the jury would have drawn the improper inferences that CALJIC No. 9.35.1 is designed to prevent. (See People v. Housley (1992) 6 Cal.App.4th 947, 959 [failure to give limiting instruction on child sexual abuse accommodation syndrome under similar circumstances was harmless error].)
Appellant also argues that counsel should have objected to testimony by the SART nurse who examined Angele that the lack of genital injury was consistent with a rape where there has been no resistance. He contends there was no foundation for this portion of the nurses testimony, which amounted to an improper opinion about appellants guilt or innocence.
Counsel was not required to object on foundational grounds because such an objection would have been overruled. The nurse who examined Angele had been the coordinator for the sexual assault nurse examiners for Ventura County for nine years. She had extensive training and practical experience and was qualified to testify that physical findings of her examination were consistent or inconsistent with different types of sexual assault. Nor did her testimony constitute an opinion that appellant was guilty-the nurse did not opine that Angele had been raped, much less that she had been raped by appellant. Finally, appellant was not prejudiced by the nurses testimony. Angele testified that she did not actively resist intercourse and did not find it painful; the jurors common sense would tell them that there would likely be no genital injury as the result of such contact.
III.
Evidence of Domestic Violence and CALJIC No. 2.50.02
Having admitted evidence that appellant had committed prior acts of domestic violence against Angele and his ex-wife, the trial court gave CALJIC No. 2.50.02 (1999 revision) regarding the appropriate use of such evidence. CALJIC No. 2.50.02 advised the jurors that the evidence was admissible to prove appellant had a disposition to commit the same or similar offenses, and that if they determined by a preponderance of the evidence that appellant had this disposition, they could infer that he was guilty of the crimes charged in this case. The instruction specifically stated that proof of a prior domestic violence offense by a preponderance of the evidence was not sufficient to prove appellants guilt of the charged crimes beyond a reasonable doubt.
The evidence of past domestic violence was admitted under Evidence Code section 1109. Appellant argues that using this evidence to prove criminal disposition violated his right to due process. His trial attorney did not object on this ground, but even on the merits, the contention fails. Our Supreme Court has upheld the constitutionality of Evidence Code section 1108, a parallel statute that authorizes evidence of prior sexual offenses to prove a defendants disposition. (People v. Falsetta (1999) 21 Cal.4th 903, 907-922, 986 P.2d 182.) A number of appellate decisions have extended the reasoning of Falsetta to Evidence Code section 1109. (E.g., People v. Jennings (2000) 81 Cal.App.4th 1301, 1309-1310; People v. Hoover (2000) 77 Cal.App.4th 1020, 1026-1027; People v. Brown (2000) 77 Cal.App.4th 1324, 1332-1334.) We agree with those decisions and conclude that section 1109 does not offend due process.
Appellant makes a related claim that the past acts of domestic violence were inadmissible to prove he committed the charged sexual offenses. Appellant reasons that Evidence Code section 1109 evidence may be admitted only in a "criminal action in which the defendant is accused of an offense involving domestic violence" as defined by Penal Code section 13700. (Evid. Code, § 1109, subds. (a) & (d).) He assumes that forcible sexual offenses do not fall within the provisions of Penal Code section 13700, which defines "domestic violence" as "abuse committed against an adult . . . who is a spouse, former spouse, cohabitant, former cohabitant, or person with whom the suspect has had a child or is having or has had a dating or engagement relationship" (Pen. Code, § 13700, subd. (b)), and further defines "abuse" as "intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable apprehension of imminent serious bodily injury to himself or herself, or another" (Pen. Code, § 13700, subd. (a)).
As explained in People v. Poplar (1999) 70 Cal.App.4th 1129, 1138-1139, the definition of domestic violence encompasses forcible rape (and, by a parity of reasoning, forcible oral copulation). It was up to the jury to decide whether appellants prior acts of non-sexual domestic violence showed a disposition to commit the charged sexual acts of domestic violence. CALJIC No. 2.50.02 made it clear that the jurors were not required to draw such an inference if they believed it was unwarranted by the facts.
Appellant also challenges CALJIC No. 2.50.02 on the ground that it allowed the jury to convict him on a lesser standard than proof beyond a reasonable doubt. Our Supreme Court recently rejected a similar challenge to CALJIC No. 2.50.01, a parallel instruction concerning the proper use of evidence of prior sexual offenses under Evidence Code section 1108. (People v. Reliford (2003) 29 Cal.4th 1007, 1016.) We reject appellants argument for the reasons discussed in Reliford.
IV.
CALJIC No. 2.90
Appellant contends the trial court denied him due process by instructing the jury with the 1994 version of CALJIC No. 2.90, which uses the phrase "abiding conviction" instead of "moral certainty" in defining the reasonable doubt standard. This argument has been rejected by every appellate district in the state, as well as the Ninth Circuit Court of Appeals. (See, e.g., People v. Hearon (1999) 72 Cal.App.4th 1285, 1286, and cases cited therein; Lisenbee v. Henry (9th Cir. 1999) 166 F.3d 997, 999-1000.) We agree with these decisions that instruction is constitutionally adequate.
The judgment is affirmed.
We concur: GILBERT, P.J., YEGAN, J. --------------- Notes: We have listened to the audiotape of the interview, and appellants inflection placed the emphasis on the word "now."