P. v. Lucero
Filed 3/1/13 P. v. Lucero CA6
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opinion has not been certified for publication or ordered published for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.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH
APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
RICKY LUCERO,
Defendant and
Appellant.
H037618
(Monterey
County
Super. Ct.
No. SS032885A)
On February 2, 2005, a Monterey
County jury convicted defendant
Ricky Lucero of forcible sodomy and sodomy in a state correctional
facility. (Pen. Code, § 286,
subds.(c)(2) & (e).)
court found that defendant had a prior serious felony conviction for
negligent discharge of a firearm and that both convictions qualified as
strikes. (§§ 1170.12, subd. (c)(2), 211, 246.3, 667, subd. (a)(1).) The court imposed a term of 25 years to life
for each conviction, stayed one of the terms, and added a five-year enhancement
for the serious felony conviction.
name="_ftnref2" title="">[2]
Defendant
was sentenced in June 2005. No appeal
was filed. However, subsequently, we
granted defendant's motion for relief from default, and he filed his notice of
appeal in January 2008. In that appeal,
we reversed the judgment and remanded the matter for the limited purpose of
conducting further proceedings on defendant's motion for new trial.
On November 1, 2011, the trial court
denied defendant's motion for a new
trial. Thereafter, defendant filed a
timely notice of appeal. In this appeal,
defendant contends that he was denied the effective assistance of counsel by
counsel's failure to investigate and present expert testimony regarding
exculpatory evidence as to the forcible sodomy charge. For reasons that follow, we reject
defendant's claim.
Facts
title="">
On December 13, 2002, defendant, aged
42, and Steven M., aged 22, were inmates at Salinas Valley State Prison; they
had been sharing a cell for approximately two weeks. Steven M. testified that that night, they
watched TV together and then went to bed.
Around 3:00 a.m., he was in the
lower bunk trying to go to sleep when defendant, who weighed more than he did,
suddenly put him in a choke hold and pinned him face down to his bed with his
arms above his head. It was difficult
for Steven M. to breathe, and he thought he was going to pass out. Defendant got on top of him, and Steven M.
asked what he was doing. Defendant
responded, "Shut up, you are going to enjoy
this . . . ."
Steven M. responded, "You're sick.
Just kick back" and "What are you doing? What the fuck are you doing?" Undeterred, defendant grabbed a bottle of
aftershave lotion, put some on his hand, rubbed Steven M.'s buttocks, and then
forcibly sodomized him. Defendant
continued to do so for 10 minutes and then went to the toilet and wiped his
hands. Steven M. did not yell out
because there was no one to hear him.
Steven M. testified that as a "southern" Mexican,
homosexuality is taboo. He said that
this was his first homosexual experience, and it was sickening.
After the
assault was over, Steven M. got up and stood by the door of their cell until
later that morning. Defendant watched
him and warned that he or someone else would kill him if he told anyone. He laughed at Steven M., called him his
"bitch," and said that it would be happening all the time, and he
would enjoy it.
Later that
morning, Steven M. met with Doctor Talbert, his psychological group leader, and
reported what had happened. The doctor
told prison authorities, and Steven M. was taken to the hospital for a sexual
assault exam. He told medical personnel
that defendant had choked, sodomized, and digitally penetrated him. He had severe anal pain. Although Steven M. had no visible injuries,
his rectum was pink, indicating some bleeding.
Swab tests revealed the presence of defendant's sperm. Defendant was also examined. He had cuts on his finger and knee. He said he cut his hand while cleaning the
shower; he could not explain his knee injury.
Lieutenant
Azell Middlebrooks and Investigator Antonio Rodriguez interviewed Steven M. and
defendant. At times during the
interview, Steven M. was demure, quiet, embarrassed, scared, and mad. Defendant was hostile and denied there had
been any sexual activity, claiming instead that he and Steven M. "just had
a conversation." According to
defendant, Steven M. said that his wife knew he was gay or bisexual, which
defendant thought was odd because Steven M. was not married. He could not explain why Steven M. would
falsely accuse him.
Defendant
testified that in prison, he was in the outpatient
became his cellmate, they were watching TV in the cell. Steven M. was upset because his mother had
insinuated that he was gay. Steven M.
asked if he could massage defendant, and defendant agreed. Steven M. removed defendant's underwear. After a while, the massage became
sexual. Steven M. massaged defendant's
buttocks, digitally penetrated his anus, and asked if it felt good. Defendant said it did. When the massage was over, defendant
sodomized Steven M. with his consent.
Defendant
denied strangling Steven M. or otherwise restricting his breathing. He explained that he could not have sodomized
an unwilling Steven M. because they were about the same size and in the same
physical condition at the time.
Defendant
said he was bisexual. He admitted
telling the investigator that there had been no sexual activity but said he was
embarrassed to tell the truth because a woman was present. He admitted that he resisted a medical
examination. He explained that he was angry
because he could not understand why he was being accused of wrongdoing for
consensual sexual activity. He testified
that at one point during their consensual activity, Steven M. asked him to take
his penis out of his anus and insert his finger instead. According to defendant, he told Steven M.
that he was going to tell his "homeboys" that Steven M. was a
"sissy." Defendant opined that
Steven M. falsely accused him because he was scared and wanted to save face
with other inmates and show that he was not gay.
At trial,
defendant was represented by Stan Evans, who had replaced defendant's previous
attorney Rick West. West had declared a
conflict of interest after defendant complained that he had failed to assert
defendant's right to a speedy trial or challenge certain evidence.
Proceedings Below
After this
court remanded the case to the trial court for further proceedings related to
defendant's motion for a new trial, on August 1, 2011, newly appointed counsel
filed such a motion raising issues of ineffective assistance of counsel, trial
court error and Faretta error.
urged as one ground in support of the new trial motion, "failure to call
expert witnesses," specifically, referring to expert testimony "as to
the effects of anal sex on the body, including the amount of rectal and anal
tearage, differences in physiological responses between those [who] often have
anal sex and those who do not, differences in physiological responses between
those who have been forcibly versus consensually sodomized, and differences in
physiological responses between those who have or have not used
lubrication." The District Attorney
filed opposition to the new trial motion on August 11, 2011; and defendant's
counsel filed a reply on August 16, 2011.
At a brief hearing held on August 18, 2011, the parties submitted
the issue on the pleadings, subject to defendant's counsel producing a copy of
the trial transcript.
Subsequently,
in the wake of In re Hill (2011) 198
Cal.App.4th 1008 (Hill), counsel
filed a supplemental brief in which new
counsel argued that defendant's trial counsel was ineffective in failing
"to consult any medical expert in the fields of injuries from choking,
sodomy, or in the fields of forcible sexual intercourse and sodomy's affect [
"[t]rial counsel failed to call an expert witness to testify as to the
effects of anal sex on the body of a person who regularly engaged in anal sex
versus a person whom [sic] would be
having anal sex for the first time as Steven M. claimed, and whether the SART
nurse's examination was consistent with forcible sodomy or consensual
sodomy." Attached to the
supplemental brief was a copy of the Fourth District Court of Appeal's decision
in Hill,
and no declaration from an expert witness was attached to the motion for a new
trial.
In a
lengthy written order, Judge Moody denied the motion for a new trial. Judge Moody noted that the essence of the
trial "could reasonably be seen by defense counsel as an inevitable
confrontation between the accuser and the accused over the question of force
in the presence of the jury . . . ."
Judge Moody noted, "[t]he attorney could have produced an expert on
the subject of absence of trauma to [Steven M.]' anus, but Ms. Nash's
statement was to the effect that only about half of the cases involving sodomy
show trauma to the anus." Judge
Moody concluded, "[i]t appears unlikely that an expert would have been
able to say that her observations and test results were more consistent with
consent than force, and there has been no claim that such testimony was or is
available on these facts."
As noted,
on appeal, defendant contends that he was deprived of the effective assistance
of counsel by counsel's failure to investigate and present expert testimony
regarding exculpatory evidence as to the forcible sodomy charge. Specifically he asserts given that in essence
this was a credibility contest between Steven M. and him it was incumbent of
defense counsel to present objective medical testimony that could have raised a
reasonable doubt as to Steven M.'s assertion of force. Thus, as can be seen, defendant frames the
issue as a claim of ineffective assistance of counsel at trial.
Standard of Review
Given the
way the issue on appeal has been framed and argued, we are unsure if defendant
is appealing the denial of his new trial motion, or the reinstatement of the
original judgment. Either way we are
required to decide if defendant was denied the effective assistance of counsel
at trial. Accordingly, we set forth the
standard of review applicable to both situations.
In general,
" '[w]e review a trial court's ruling on a motion for a new trial under a
deferential abuse-of-discretion standard.'
[Citations.] ' "A trial
court's ruling on a motion for new trial is so completely within that court's
discretion that a reviewing court will not disturb the ruling absent a manifest
and unmistakable abuse of that discretion." ' [Citations.]" (People v. Thompson (2010) 49 Cal.4th
79, 140.) Ineffective assistance of
counsel, if proven, is a valid, nonstatutory ground for a new trial. (People v. Fosselman (1983) 33 Cal.3d
572, 582–583; People v. Reed (2010) 183 Cal.App.4th 1137, 1143.) Upon appeal from the denial of a new trial
motion based on a claim of ineffective assistance or other denial of
constitutional rights, we apply two distinct standards of review. We defer to the trial court's factual
findings if supported by substantial evidence, but we exercise de novo review
over the ultimate issue of whether the defendant's constitutional rights were
violated. (People v. Taylor
(1984) 162 Cal.App.3d 720, 724–725 (Taylor).)
"On
appeal, all presumptions favor the trial court's exercise of its power to judge
the credibility of witnesses, resolve any conflicts in testimony, weigh the
evidence, and draw factual inferences.
The trial court's factual findings, express or implied, will be upheld
if they are supported by substantial evidence.
[Citation.]" (Taylor, supra, 162 Cal.App.3d at p. 724.) However, the ultimate responsibility to
measure the facts as found by the trial court against the constitutional
standard must be exercised by the appellate court according to its independent
judgment. (Id. at p. 725.) In examining claims of ineffective assistance
of counsel, we give great deference to counsel's reasonable tactical
decisions. (People v. Hinton (2006)
37 Cal.4th 839, 876.) If the record on
appeal fails to shed light on why counsel acted or failed to act, we reject a
claim of ineffective assistance unless counsel was asked for an explanation and
failed to provide one or no satisfactory explanation exists. (People v. Mendoza Tello (1997) 15
Cal.4th 264, 266.) Such claims are often
more appropriately raised in a petition for writ of habeas corpus, in which the
defendant may present more evidence concerning counsel's reasons for his
actions or omissions. (Id. at pp.
265–267.)
On appeal,
to establish ineffective assistance of counsel, a defendant has the burden of
proving both that his counsel's performance was deficient under an objective
standard of professional responsibility and that there is a reasonable
probability that but for his counsel's errors, he would have obtained a more
favorable result at trial. (Strickland
v. Washington (1984) 466 U.S. 668, 687 (Strickland).)
Defendant
failed to carry his burden below as he does on appeal. As noted, when a defendant challenges his
conviction based on a claim of ineffective assistance of counsel, he must
overcome two hurdles. "First, the
defendant must show that counsel's performance was deficient. This requires showing that counsel made
errors so serious that counsel was not functioning as the 'counsel' guaranteed
the defendant by the Sixth Amendment.
Second, the defendant must show that the deficient performance
prejudiced the defense. This requires
showing that counsel's errors were so serious as to deprive the defendant of a
fair trial, a trial whose result is reliable." (Strickland, supra, 466 U.S. at p. 687; People v. Ledesma
(1987) 43 Cal.3d 171, 216.)
Defendant
did not surmount the first hurdle below and he does not on appeal. He makes an inadequate showing that his trial
counsel did not investigate and that he could have presented favorable
expert testimony. In People v. Datt (2010)
185 Cal.App.4th 942, the defendant claimed his trial
identification expert. This
court held that defendant's contention "fail[ed] at its origin. He has not shown that his trial counsel could
have presented any favorable expert testimony." (Id. at p. 952.) This court explained that even though the
defendant had produced testimony at a
motion for new
an expert on eyewitness identification," he produced no evidence that
his trial counsel had failed so to do. (Id.
at pp. 952-953.)
Here, the
record before us does not disclose what actions, if any, trial counsel
undertook to consult expert witnesses, nor has defendant shown that expert
witnesses could have provided favorable testimony.
nothing except his own assumptions as to what trial counsel did or did not do
and what an expert witness could have testified to at trial.
in that he assumes that counsel failed to investigate and asserts that "[t]he tenor of the exculpatory
testimony that could have been presented in this case is that injuries are sometimes
discernible in instances of first-time consensual sodomy, but are virtually always
discernible in cases of first-time forcible sodomy." Yet, below, defendant presented no evidence
that trial counsel had failed to investigate and defendant had no expert ready
to testify; his assertion as to what testimony an expert could have given was
not even supported by a declaration from an expert. Judge Moody highlighted this critical
deficiency when he stated that it appeared "unlikely that an expert would
have been able to say that [Ms. Nash's] observations and test results were more
consistent with consent than force, and there has been no claim that such
testimony was or is available on these facts."
Notwithstanding
this deficiency at the new trial motion, defendant asserts that his
"counsel adequately identified and pled a crucial deficiency in trial
counsel's representation" and the "trial court's responsibilities
under the due process guarantee of the state and federal [C]onstitutions and
under Penal Code section 1044 were to convene an evidentiary hearing to
determine whether such specific evidence was available." Defendant urges this court to remand the
matter for further proceedings.
Conspicuous by its absence is any relevant authority for this assertion.
correct, a defendant on appeal would only need to allege that his trial counsel
was incompetent and he would then be entitled to an evidentiary hearing to
attempt to prove his hypothesis. On
appeal, "[t]he burden of sustaining a charge of inadequate or ineffective
representation is upon the defendant.
The proof of this inadequacy or ineffectiveness must be a demonstrable
reality and not a speculative matter."
(People v. Stephenson
(1974) 10 Cal.3d 652, 661.)
Here, the
record before us does not disclose what actions, if any, trial counsel
undertook to consult expert witnesses, nor has defendant carried his burden of
demonstrating that expert witnesses could have provided favorable
testimony. Thus, defendant's claim is
not properly brought on direct appeal. (People
v. Datt, supra, 185 Cal.App.4th at p. 953.)
Without engaging in speculation, we cannot infer anything about the
existence, availability, or probative force, of any expert testimony that
defendant might have presented or the probable consequences of its use at
trial. (People v. Wash (1993) 6 Cal.4th 215, 269.) Simply put, there is no evidence to support
defendant's ineffective assistance of counsel claim.
Disposition
judgment is affirmed.
_________________________________
ELIA,
J.
WE CONCUR:
______________________________
RUSHING, P. J.
______________________________
PREMO, J.
name="_ftn1" title="">[1] All unspecified statutory references
are to the Penal Code.
name="_ftn2" title="">[2] We have taken judicial notice of this
court's unpublished opinion in defendant's prior appeal H032250.
