P. v. Picazo

Filed 11/20/07 P. v. Picazo CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from a judgment of the Superior Court of Los Angeles County, Mark C. Kim, Judge. Affirmed.

James M. Hodges for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and Adrian N. Tigmo, Deputy Attorneys General, for Plaintiff and Respondent.

_____________________________________

Mario Picazo was convicted of one count of sexual battery by restraint, one count of burglary, and one count of making a criminal threat, for which he was sentenced to state prison for a term of five years. Picazo appeals, claiming prosecutorial misconduct and ineffective assistance of counsel, and challenging the sufficiency of the evidence in support of his burglary and criminal threat convictions. We reject his claims of error and affirm the judgment.

FACTS

A.

Mayra A., the victim, knew Picazo since they were children. They lived on the same block and were casual friends, but in recent years Mayra felt Picazo had changed. In the summer of 2005, Mayra told Picazo to stop coming by her house, and she stopped responding to his greetings when they saw each other on the street. He told her she was mean.

On September 26, 2005, Picazo (then 19 years old) left his house, telling his mother he was going to visit a friend. At about 1:00 p.m., Mayra (at home alone) heard a knock on her door and opened it to find no one there. When she leaned outside for a better look, Picazo pushed her, ran by her into the house, then closed and locked the door. Mayra told him to get out. In response, he asked her for money, then for a glass of water. When Mayra refused, Picazo started yelling at her that she was mean and could at least give him water.

Afraid, Mayra tried to trick him into leaving by telling Picazo that her father was coming home. Picazo said he would beat up her father and blocked the door when she tried to leave, telling her she wasnt going anywhere and that he wasnt going anywhere -- but then asked Mayra to walk with him. When she refused, he yelled, Lets go to your room, grabbed her wrist, and pulled her toward her bedroom. When she resisted, he said, Lets go do it, which she understood as a demand for sexual intercourse. Picazo put a hand on Mayras shoulder and with his other hand reached under her sweater, grabbed one of her breasts, squeezed it, and told her she was going to give it to him whether [she] wanted to or not.

Mayra struggled and finally got back to the front door but Picazo grabbed her jeans and held her against a wall. She fought him off but he pushed her onto a couch and got on top of her. She was afraid and screaming, hoping a neighbor would hear. She continued to fight and told Picazo she was not going to do anything with him, and that he should not do anything stupid. While on top of Mayra, Picazo (whose breath smelled of alcohol) held a small, nearly empty alcohol bottle over his head as if to hit her and said, Ill hit you with it if you dont . . . let me do what I want to do to you. . . . If this doesnt hurt you, Ill go to my house and find something bigger that will. He then put the bottle in his jeans and said he had a hard-on now and was going to rape her. Mayra was afraid and still fighting.

Picazo finally gave up a little and got off Mayra. She tried again to get to the front door but he pushed her away. While he stood blocking the door, she backed up toward the kitchen, telling Picazo she would get him the glass of water he wanted. He stayed at the door, just saying things that didnt make sense. Mayra ran out the back door towards a neighbors house, with Picazo pursuing and yelling, Stupid, Ill fuck your ass up if you dont come with me. Mayra was afraid but made it across the street and into a neighbors home. The neighbor called 911, and later told the police that Mayra was in fear and saying that Picazo was trying to get [her] when she arrived at the neighbors house.[1]

B.

Picazo was charged with one count of attempted forcible rape, one count of sexual battery by restraint, one count of burglary, and one count of making a criminal threat. (Pen. Code, 664, 261, subd. (a)(2), 243.4, subd. (a), 459, 422.)[2] At trial, the People presented evidence of the facts summarized above.

Picazo testified in his own defense, claiming Mayra was his friend. He said he went to her house to ask her to return a pipe or for money for the pipe. He knocked on the door and walked in without an invitation, shutting the door behind him. Mayra told him that a friend had the pipe. He suggested they walk to her friends house. They were both angry. Mayra said her father would be home soon. There was some shoving, during which he touched her chest. She pushed him to the floor and scrammed, leaving the house. He said he had had a swig of vodka an hour before he arrived at Mayras, that he did not go there to force her to have sex, did not grab her or her breast, and did not pull her onto the couch. He admitted that he had not mentioned the pipe when he talked to the police following his arrest.

In rebuttal, the investigating detective testified that Picazo had told him on the day of the incident that he really did not know Mayra but she liked him, and that he sometimes called her but she would hang up after he identified himself. Picazo told the detective that he felt like giving her a hug and she went along with it but at some point she fought and he pushed her with his hands, touching her breasts. He said he grabbed her and pulled her onto the couch but he let her go when she started to cry. Picazo said Mayra should have been telling him yes to what he was asking for.

DISCUSSION

I.

Picazo contends the prosecutor committed prejudicial misconduct by making several impermissible comments during closing argument. We disagree.

A.

A prosecutors intemperate behavior is impermissible under the United States Constitution when it amounts to a pattern of conduct so egregious that it infects the trial with such unfairness as to deprive the defendant of his right to due process; under state law, prosecutorial conduct that does not render a criminal trial fundamentally unfair constitutes misconduct only if it involves the use of deceptive or reprehensible methods in an attempt to persuade the court or jury. (People v. Hill (1998) 17 Cal.4th 800, 819.) A prosecutor is given wide latitude during argument, which may be vigorous so long as it amounts to fair comment on the evidence, including reasonable inferences and deductions, and the prosecutor may refer to matters that are not in evidence if they are common knowledge or are illustrations drawn from common experience, history or literature. (Ibid.)

B.

Picazo contends the prosecutor dissuaded the jury from reviewing the transcript during deliberations by explaining that a readback would take some time: [R]emember, the reporter [the other] day . . . is not the reporter today. You have to find the reporter, go over the transcript, get it in, agree on it, and read it to you. So thats a process that you are entitled to, but dont take it lightly . . . but you are welcome to have that happen. Picazo is wrong. A true statement does not constitute misconduct -- and the trial court in any event explained to the jury that the court reporter had made a record of everything that was said and that, if the jurors decided it was necessary, they could ask for a readback.

Picazo contends the prosecutor invited the [jurors] to believe that they were chosen by the People of the State of California to find [Picazo] guilty. That is not quite the way it went. Toward the end of his closing argument, the prosecutor said: You have guaranteed the People of the State of California that you are able to find the defendant guilty. We have chosen you specifically to do that function. It takes 12 people. Defense counsels objection was sustained, and the prosecutor then concluded: I implore you to listen to each other, to deliberate together to come to your decision. . . . In context, it is clear that the prosecutor was commenting the jurors assurances during voir dire that they could, depending on the evidence, find Picazo guilty as charged, no more and no less. We see no reasonable likelihood that the jurors misconstrued the prosecutors statements, and thus see no misconduct. (People v. Sanders (1995) 11 Cal.4th 475, 526.)

Picazo contends the prosecutors references to an alcohol blackout, an absolute blackout, and extreme alcoholics were misstatements of the evidence. He is mistaken. These phrases were not comments on the evidence. They were uttered in response to Picazos defense that he was too intoxicated to form the required intent for the charged crimes, and were part of the prosecutors argument that Picazos intoxication was negligible at best. We find nothing misleading or inappropriate about the prosecutors argument. (People v. Sanders, supra, 11 Cal.4th at p. 526.)

II.

Picazo contends he was deprived of the effective assistance of counsel because no discovery was independently done by trial counsel, no investigator was hired, key witnesses were not interviewed, no witnesses were subpoenaed for trial, no affirmative defenses or mitigating evidence were presented, minimal cross-examination was performed, and counsel was not adequately prepared to cross-examine Mayra. These are nothing more than conclusory assertions that trial counsel could have done more than he did -- and they are wholly inadequate to establish that trial counsel was ineffective. (Burger v. Kemp (1987) 483 U.S. 776, 794-795; Ceja v. Stewart (9th Cir. 1996) 97 F.3d 1246, 1255; U.S. v. Rodriguez-Ramirez (9th Cir. 1985) 777 F.2d 454, 458.)

In any event, trial counsel did present affirmative defenses and mitigating evidence, and he effectively cross-examined Mayra. More to the point, Picazo has not suggested what more could have been done or how a different defense could have produced a different outcome. In short, no prejudice has been shown and thus no basis for reversal. (Strickland v. Washington (1984) 466 U.S. 668, 694; People v. Majors (1998) 18 Cal.4th 385, 403; People v. Ledesma (1987) 43 Cal.3d 171, 217-218.)

III.

Picazo contends there is no evidence he had the specific intent to commit a felony when he entered Mayras house and, therefore, that there is insufficient evidence to support his burglary conviction. We disagree.

A.

A conviction of residential burglary requires proof that the defendant entered an inhabited dwelling with the intent to commit a felony ( 459, 460), in this instance attempted forcible rape or felony false imprisonment, with the latter requiring proof that Picazo intentionally restrained or confined or detained Mayra by the use of physical force or menace and made her stay in the house against her will. (See CALCRIM No. 1240.) Because there was conflicting evidence from the witnesses, it was for the jury to determine their credibility and decide which facts were true. (People v. Thornton (1974) 11 Cal.3d 738, 754, disapproved on another point in People v. Flannel (1979) 25 Cal.3d 668, 684-685, fn. 12.) Circumstantial evidence alone is sufficient to support a burglary conviction. (People v. Henderson (1956) 138 Cal.App.2d 505, 509.)

B.

Mayra testified that Picazo entered uninvited, immediately locked the front door, and told her she wasnt going anywhere. They struggled. He restrained her. When she tried to flee, he physically stopped her. His actions demonstrated his intent to rape her. He threatened to hit her with a bottle. He pushed her away from the front door to keep her from leaving. This is substantial evidence of felony false imprisonment and of burglary. (People v. Barnes (1986) 42 Cal.3d 284, 303-304; People v. Johnson (1980) 26 Cal.3d 557, 576-577.) The slight evidence that Picazo had been drinking does not change these facts.

IV.

Picazo contends his criminal threats conviction cannot stand because Mayra could not have construed his comments as a threat he would immediately carry out. We disagree.

As the jury was instructed, the People had to prove that the threat was so clear, immediate, unconditional, and specific that it communicated to Mayra . . . a serious intention and the immediate prospect that the threat would be carried out. (CALCRIM No. 1300; 422.) To determine whether the making of a criminal threat was proved, the jury was entitled to consider all the surrounding circumstances, not just Picazos words. (People v. Mendoza (1997) 59 Cal.App.4th 1333, 1340; People v. Franz (2001) 88 Cal.App.4th 1426, 1446.)

In addition to the struggle and restraint described above, Mayra testified that, while he had her pinned down on the couch, Picazo held a bottle over his head and threatened to hit her with it. Once Mayra escaped out the back door, Picazo pursued her across the street, promising to "fuck your ass up. Mayra arrived at her neighbors house afraid and crying. These facts show a clear, immediate, unconditional, and specific threat that would be carried out, and no more was required. (People v. Barnes, supra, 42 Cal.3d at pp. 303-304; People v. Johnson, supra, 26 Cal.3d at pp. 576-577.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

VOGEL, J.

We concur:

MALLANO, Acting P.J.

ROTHSCHILD, J.

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[1] The 911 tape was played for the jury. It begins with the neighbor saying, I need the police here. I have my neighbor, she just came across and started crying . . . . I dont know exactly what happened, but she said that . . . one of the guys out here wanted to hurt . . . her. The operator asked to speak to Mayra who then reported that [t]heres this guy who lives on the street. He came to my house, and I didnt know who it was, so I opened the door . . . . He pushed me in and locked the door and wouldnt let me leave, so I had to run out of the back door. . . . He kept on saying that he was going to do things to me . . . .

[2] All section references are to the Penal Code.