Jaramillo
Filed 8/9/12 P. v. Jaramillo CA5
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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IN THE COURT OF APPEAL OF THE STATE
OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
ROLANDO JARAMILLO,
Defendant and
Appellant.
F062409
(Super.
Ct. No. 09CM1206)
APPEAL
from a judgment of the Superior Court of
Athena
Shudde, under appointment by the Court of Appeal, for Defendant and Appellant.
Office
of the State Attorney General, Sacramento, California, for Plaintiff and
Respondent.
-ooOoo-
OF THE CASE
On February 18, 2011, appellant, Rolando
Jaramillo, was charged in a third amended information with
Code, § 209, subd. (b)(1), count 1),
count 2), and rape in concert (§ 264.1, count 3). Count 3 was alleged to have been committed
under aggravating circumstances, within the meaning of section 667.61,
subdivisions (a), (b), (d), and (e) because the defendant tied or bound the
victim, kidnapped the victim, and/or committed great bodily injury on the
victim. Victor Cordova Alatorre and
Daniel Espinoza Zenteno were charged as codefendants.
The court conducted hearings on December 16, 2010, and February 18,
2011, based on motions brought by Jaramillo pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). During the
December 2010 hearing, Jaramillo complained that he was not guilty of the
allegations, and his counsel, James Oliver, was not helping him “get rid” of
the charges against him. Jaramillo
wanted a new attorney. After the trial
court established that Jaramillo had nothing else to add, the court noted that
Oliver had substantial experience with criminal jury trials.
Oliver explained that he had gone over the case with Jaramillo. Jaramillo ultimately rejected an offer for a
determinate sentence in exchange for testifying against Zenteno. Oliver was concerned and explained to
Jaramillo that he had made a recorded statement that constituted a confession
and would likely be convicted if he went to trial. Oliver told the court that Jaramillo now
denied making a confession to the police.
The court denied the Marsden
motion.
At the February 2011 hearing,
Jaramillo asserted that he wanted a new attorney because Oliver had not told
him anything and had not helped him.
Jaramillo claimed that counsel repeatedly “denied testimonial evidence
that … would prove [his] innocence” and would not “put together a defense …
present[ing] the facts of [his] case.”
Also, counsel had not shown Jaramillo the video.
Oliver responded he had presented to the prosecutor, on more than one
occasion, that Jaramillo was not a direct participant in the rape of the victim
and wanted the allegations dismissed.
The prosecutor refused to do so because police interrogation of
Jaramillo showed his culpability.
Jaramillo was insisting that he was “told the answers to give to the
questions.” Oliver represented that
Jaramillo had been shown pictures depicting Jaramillo carrying the victim into
the hotel room. He had not shown
Jaramillo the video from the hotel because, until the hearing, Jaramillo had
not indicated any interest in seeing the video itself. Oliver did not obtain an investigator because
he could not talk to the codefendants as they were represented by counsel. Jaramillo assured him that the other two
defendants would exonerate him when they testified at trial. Oliver tactically chose not to have the
victim questioned by an investigator because he preferred to question the
victim on cross-examination. For these
reasons, Oliver did not find there was anything to investigate. Concerning the allegation that Oliver had not
presented the facts of the case, Oliver pointed out that there was not a
preliminary hearing and the facts would be presented at trial. Oliver told the court that Jaramillo would be
pursuing a cultural defense.
The court found Oliver was properly representing Jaramillo, there had
not been a breakdown in the relationship between counsel and Jaramillo that
would preclude counsel from effectively continuing to represent Jaramillo, and
denied the Marsden motion.
At the conclusion of a jury trial, Jaramillo was found guilty of counts
1 and 3 and the special allegations were found true. On May 3, 2011, Jaramillo was sentenced to
prison for 25 years to life on count 3.
His sentence on count 1 was stayed pursuant to section 654.
Jaramillo was ordered to pay a restitution fine of $10,000 and direct
victim restitution of $1,995.29. On
January 26, 2012, an amended abstract of judgment was filed with Kings County
Superior Court adding one day of custody credit for total custody credits of
848 days. Jaramillo filed a timely
notice of appeal. We review this case
pursuant to People v.
In December 2008, F.D. was working
in a gas station in Kings County where she met Zenteno. Later that month, the two began to date. In January 2009, Zenteno took F.D. to a hotel
on Highway 41 in Kings County but she did not want to go into a room with him. Later that month, Zenteno took F.D. to a
hotel in Fresno and Zenteno performed oral sex on F.D. Zenteno also rubbed his penis on the outside
of F.D.’s vagina without penetrating it.
Again, in January 2009, the two went to another hotel in Fresno and they
massaged each other. Zenteno was upset
because F.D. would not have sex with him.
F.D. told her mother that Zenteno wanted to marry her and F.D. was
willing to marry Zenteno at this time.
In early February 2009, Zenteno took F.D. back to the hotel on Highway
41. Zenteno began intercourse with F.D.,
penetrating her and causing bleeding.
Zenteno told F.D. she was making him feel uncomfortable, “like if he was
raping [her] at the time.” This was the
first time F.D. had had sexual intercourse.
Zenteno took F.D. to his brother’s home. A woman there told F.D. she was Zenteno’s
wife and asked F.D. if she knew that Zenteno was married. The woman advised F.D. to have a lot of
patience with Zenteno. On the way home,
F.D. asked Zenteno why he lied to her.
Zenteno told F.D. he was not living in the same residence as his
wife. At that point, F.D. stopped seeing
Zenteno, although the two still communicated occasionally by text message and
by phone.
On April 1, 2009, F.D. was still working at the gas station. Her shift ended around 10:00 p.m. F.D. drove home, parked her car, and walked
toward the entrance to her home. There
was a man hiding, bent down near the tire of a car. F.D. did not know the man. She identified the man in court as
codefendant Alatorre.
Alatorre stood up and grabbed F.D. by the face, placing the palm of his
hand over her mouth. Alatorre told
another man (Jaramillo) to grab F.D. by her feet. F.D. moved Alatorre’s hand and yelled for
help. Alatorre and Jaramillo lifted F.D.
off the ground and placed her in a car.
F.D. yelled for help and struggled to get free from them, but failed to
get free. At some point, F.D. bit one of
the men. The car was Zenteno’s car and
Zenteno was the driver. The other two
men were in the back seat with F.D.
As Zenteno drove, Alatorre faced the back of the car and Jaramillo tied
F.D.’s hands and feet. Jaramillo told
F.D. not to say anything or he would hurt her.
Zenteno told the men to cover her mouth.
One of the two men in the back seat placed duct tape over F.D.’s
mouth. Zenteno drove to the same hotel
on Highway 41 that he had taken F.D. to in February 2009.
Alatorre and Jaramillo carried F.D. into a room and left her there
still bound. Although she was still
bound, Zenteno pulled down her underwear and put his finger into her
vagina. F.D. kept telling Zenteno to
stop. Zenteno kissed F.D. and then
pushed his penis into F.D.’s vagina. At
this time, F.D.’s hands were unbound and she tried to push Zenteno away. She also told Zenteno that he was hurting
her. Zenteno continued raping F.D. for
some minutes. When Zenteno finished,
F.D. was bleeding from her vagina.
Zenteno drove F.D. home and she wrote down the license plate number of
his car on her hand. F.D. placed her
clothing into a plastic bag.
Zenteno went to F.D.’s home to talk to her on April 5, 2009. F.D.’s mother was present. Zenteno told F.D.’s mother to convince F.D.
to marry him. Zenteno told F.D. he was
in the process of divorcing his wife.
F.D. then told her mother what had happened on April 1st. F.D.’s mother told her to call the
police. F.D. contacted the police on
April 6, 2009.
During a call to Zenteno, arranged by the police, Zenteno told F.D.
that he paid Alatorre and Jaramillo a few hundred dollars for their services,
but did not know them. Zenteno told F.D.
he never wanted to hurt her and he felt guilty.
When F.D. asked Zenteno why he had sex with her, Zenteno replied because
F.D. permitted him to do so. Zenteno
seemed to become suspicious about the call. Zenteno asked F.D. where she was, why she was
asking questions, and told her to go ahead and lock him up.
The hotel video surveillance tape showed Zenteno renting a room on
April 1, 2009, at 10:54 p.m. The video
also depicted Alatorre and Jaramillo removing F.D. from Zenteno’s vehicle,
carrying her into the room, and immediately walking back outside. Alatorre moved Zenteno’s vehicle into a
parking stall and he and Jaramillo walked away.
Alatorre looked at his arm where F.D. had bitten him earlier. Alatorre and Jaramillo entered a white truck
and drove away. The video showed Zenteno
leaving the hotel at 3:53 a.m. on April 2, 2009.
The white truck in the surveillance
video was recognized by a hotel clerk who provided the police with the truck’s
license plate number. The truck was
registered to a person in Stockton. An
officer went to the Stockton address and saw shoestrings similar to those
described by F.D. in the bed of the truck.
Officers identified two individuals associated with an earlier traffic
stop involving the pickup truck. When
officers showed the hotel clerk pictures of these two men, the clerk identified
Alatorre. F.D. said that the picture of
Alatorre looked like one of the men who kidnapped her, but she was not 100
percent certain.
Alatorre was arrested and
cooperative during interrogation.
Alatorre was shown pictures from the hotel video and identified himself,
Jaramillo, and the vehicles in the parking lot.
Jaramillo was then arrested.
Alatorre testified as a
negotiated plea of eight years in prison.
Alatorre corroborated F.D.’s account of the abduction, her kidnapping,
and being left at the hotel with Zenteno.
Alatorre was bitten by F.D. as he was placing her in the car. He was given $150 by Zenteno to split with
Jaramillo, and later Zenteno gave him another $100. Zenteno told Alatorre that he wanted help
taking the girl to clear things up and later get married. Alatorre was aware of a cultural practice in
Mexico of kidnapping for marriage.
Jaramillo was arrested, given his Miranda
rights, and agreed to talk to investigators.
Alatorre offered Jaramillo “a quick $100” to kidnap F.D. Jaramillo was told that the plan was for them
to travel in two vehicles to F.D.’s home.
Jaramillo agreed to drive one of the vehicles, but not to be involved
with the crime.
Jaramillo admitted that they waited in the dark for F.D. to arrive home
and the plan was to place her in Zenteno’s car.
F.D. fought back when Alatorre grabbed her. Because F.D. was screaming, Jaramillo grabbed
her legs to help Alatorre get her into the car.
Jaramillo also tied F.D.’s feet and placed duct tape over her mouth
because she was kicking and screaming.
Jaramillo talked about the cultural practice in Mexico of parents
allowing, or forcing, a girl to marry a man after he had sex with her.
Examination of F.D.’s clothing revealed blood stains on her underwear,
pants, and sweater.
name="_ftnref6" title="">[5] A
sexual assault examination of F.D. by a forensic nurse revealed tears,
lacerations, and abnormal bleeding to F.D.’s upper vagina. The blood was not menstrual blood. F.D. had a bruise on her left upper arm. Part of F.D.’s hymen was missing. Blood was still coming out of F.D.’s vagina
and injuries to her hymen and behind it were consistent with forcible
penetration. The nurse could not finish
the examination because she could not keep medical instruments inside F.D.’s
vagina because it was too painful for her.
F.D. was sent to emergency care for her bleeding. The nurse opined that F.D. was the victim of
a forceful assault.
Zenteno presented evidence from a nurse practitioner who was qualified
as an expert. The nurse practioner also
examined F.D. and observed no active bleeding inside F.D.’s vagina and no
lacerations, though she did see evidence of old blood. The nurse practioner did not prescribe F.D.
any medication and did not observe anything that caused her concern. The nurse practioner conceded that a
photograph of F.D.’s vagina depicted interruptions in the vaginal lining, which
could be lacerations.
Zenteno testified that he began dating F.D. and then began to have
sexual relations. The two talked to
F.D.’s mother, telling her that they wanted to get married. F.D. was afraid to tell her mother that she
might be pregnant. Zenteno and F.D. kept
having sexual relations, but when they did, F.D. would always bleed a lot. Zenteno stated that he had sexual intercourse
with F.D. two or three times in December 2008, and continued having intercourse
with her in January, February and March of 2009. The intention was for F.D. to become
pregnant.
According to Zenteno, F.D. told him to steal her, tie her up, drag her,
and to do whatever Zenteno needed because that was the only way F.D. would understand
that Zenteno loved her. Zenteno told
F.D. he could not steal her because he had an injury to his arm. Zenteno approached Alatorre and asked him to
help him steal his girlfriend. Alatorre
asked Zenteno if he could bring someone else to help him. When the three men went to take F.D., she was
initially scared because she did not know the other two men. Zenteno insisted that he never kidnapped F.D. Zenteno was only following F.D.’s request
that he steal her.
Once in the hotel room, F.D. took off Zenteno’s shirt and gave him a
massage like she always did. F.D. had
already freed herself from the bindings on her hands and legs. The two caressed each other and disrobed. They kissed and had sexual intercourse. F.D. had her cell phone with her but never
used it. They left the hotel so F.D.
could go to work in the early morning.
Zenteno and F.D. talked on the way back to her house, discussing their
plans to travel to Las Vegas. According
to Zenteno, F.D.’s mother later became very angry when she learned that F.D.
might be pregnant.
COURT REVIEW
Jaramillo’s appointed
appellate counsel has filed an opening
brief that summarizes the pertinent facts, raises no issues, and requests
this court to review the record independently.
(Wende, supra, 25 Cal.3d 436.) The
opening brief also includes the declaration of appellate counsel indicating
that Jaramillo was advised he could file his own brief with this court. By letter on February 3, 2012, we invited
Jaramillo to submit additional briefing.
Jaramillo replied with a document
making the following accusations: one of
the members of the jury started to talk to a witness outside the court causing
the judge to advise the jury that it should not talk to anyone; police officers
said hello to members of the jury and talked with them inside the courtroom;
the judge and Jaramillo’s counsel never let him defend himself from all of the
lies said about him; the victim sat with the public before court started to be
sure that she recognized Jaramillo; the prosecutor was making signs to the
victim to say yes or no; a detective “violated procedure by saying” Jaramillo’s
name; the detective did not read Jaramillo his rights prior to questioning him;
the prosecutor talked about Jaramillo’s case ahead of time “and asked for me to
be found guilty;” the prosecutor took Jaramillo out of jail where he was
pressured to take a plea of eight years; the jury found Jaramillo guilty based
on a bunch of lies and his trial attorney deceived him and never talked to
him.
Jaramillo initially contends that a
juror began to talk to a witness and the court and counsel advised the jury not
to talk to anyone. Jaramillo fails to
show prejudice from this alleged event.
Furthermore, we presume jurors meticulously follow the court’s
instructions and that they did so here.
(People v.
involve alleged conduct occurring outside the courtroom, or that was not
recorded in the trial court transcript.
Matters that lie outside the record are not subject to appellate
review. (In re Rogers (1980) 28 Cal.3d 429, 437, fn. 6; People v. Cooks (1983)
141 Cal.App.3d 224, 310.)
Jaramillo’s final contention can be
construed as a challenge to the adequacy of his trial counsel. The defendant has the burden of proving
ineffective assistance of trial counsel.
To prevail on a claim of ineffective assistance of trial counsel, the
defendant must establish not only deficient performance, which is performance
below an objective standard of reasonableness, but also prejudice. A court must indulge a strong presumption
that counsel’s conduct falls within the wide range of reasonable professional
assistance. Tactical errors are
generally not deemed reversible.
Counsel’s decisionmaking is evaluated in the context of the available
facts. To the extent the record fails to
disclose why counsel acted or failed to act in the manner challenged, appellate
courts will affirm the judgment unless counsel was asked for an explanation and
failed to provide one, or, unless there simply could be no satisfactory
explanation. Prejudice must be
affirmatively proved. The record must
affirmatively demonstrate a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different. (People v. Maury
(2003) 30 Cal.4th 342, 389.) Attorneys
are not expected to engage in tactics or to file motions which are futile. (Id. at p. 390; also see People v.
Mendoza (2000) 24 Cal.4th 130, 166.)
Jaramillo’s assertions regarding
his trial counsel are based on facts and details outside of the record on
appeal. Other than Jaramillo’s
unsubstantiated assertion that his trial counsel was ineffective, he has failed
to affirmatively demonstrate any deficiency in his trial counsel’s
representation or any resulting prejudice in his trial.
After independent review of the
record, we have concluded there are no reasonably arguable legal or factual
issues.
DISPOSITION
The judgment is
affirmed.
name="_ftn1" title="">* Before Cornell, Acting P.J., Detjen,
J., and Franson, J.
name="_ftn2" title="">[1] Unless
otherwise designated, all statutory references are to the Penal Code.
