P. v. Zamora

Filed 2/28/08 P. v. Zamora CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County, Robert J. Higa, Judge. Affirmed as modified.

Paul S. Geller for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Kristofer Jorstad and Ana R. Duarte, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

A jury convicted defendant David Merardo Zamora of forcible rape ( 261, subd. (a)(2)),[1]kidnapping ( 207, subd. (a)), assault with a deadly weapon by means likely to produce great bodily injury ( 245, subd. (a)(1)), and making criminal threats ( 422). The victim in each crime was his former girlfriend, M. L. The jury also found that in committing the first three crimes, defendant inflicted great bodily injury on M. L. under circumstances involving domestic violence. ( 12022.7, subd. (e).)

After the jury returned its verdicts, defendant discharged retained counsel and hired a new attorney. New counsel filed a motion for new trial, supported by declarations and exhibits, alleging that trial counsel had provided constitutionally deficient representation. The trial court denied the motion and sentenced defendant to state prison for 12 years and 8 months.

This appeal reiterates the claims made in the unsuccessful new trial motion. We conclude that defendant has failed to meet his burden of establishing ineffective representation on any of the grounds asserted. For each purported failing, there is a potential reasonable tactical reason to explain trial counsels action. Further, defendant has failed to establish that he was prejudiced by any of the claimed deficiencies, whether considered singularly or collectively. Therefore,

except for making one minor modification to the judgment to correct an error noted by the Attorney General,[2]we affirm.[3]

STATEMENT OF FACTS

1. The Prosecution Case

In opening statement, the prosecutor stated the evidence would establish that this is a situation where rejection and anger first turned into harassment, then turned into vandalism, and ultimately turned into violence. The prosecutors assessment of the evidence was accurate. The crimes, which occurred on December 14, 2004, were the final chapter in a short-lived and tumultuous relationship between defendant and M. L. The evidence established the following facts.

M. L. and defendant met and began dating in September 2004. M. L. was 32 years old and defendant was 21 years old. Several weeks later, defendant moved in with M. L. By Thanksgiving, M. L. asked defendant to move out. He did but returned several days later, stating she wasnt going to leave him [and he] wasnt going to leave [her]. M. L. asked him to leave. He refused. After M. L. spoke with defendants mother who promised to reason with him, M. L. relented and let defendant stay for a while.

On December 9, M. L. told defendant he had to leave. He told her: You better watch your back. Youre dead. Defendant left after damaging some of M. L.s furniture. When M. L. went outside, she saw that one of the tires on her vehicle was flat. Defendant returned that evening. He banged on the doors and broke two windows. M. L. called the police. After one of defendants friends escorted him home, the police advised M. L. to obtain a restraining order.

The next day (Friday, Dec. 10), M. L., accompanied by her friend Cynthia Perez, obtained the documents to apply for a restraining order. In the following days, defendant engaged in multiple acts of harassment, including coming to M. L.s home, following her, and making threatening phone calls. M. L. unsuccessfully tried to reason with defendant and to convince him to leave her alone.

On Monday, December 13, M. L. filed her completed application for a temporary restraining order (TRO) with the superior court. In her own words, she described the vandalism, harassment, and threats carried out by defendant on December 9, 10, and 11.[4] The court issued a TRO and set a hearing date for January 5.

At approximately 10:30 a.m. on December 14, Diana Ascencio (one of M. L.s friends) served defendant at his home with the TRO and its supporting documents.

Shortly after Ascencio served defendant, defendant confronted M. L. at an intersection where she had stopped her car for a red light. According to M. L., the intersection is two to three minutes from her house and approximately five minutes from defendants home.[5] Defendant opened the drivers door and told her to move over. When she resisted, he hit her head with his fist and entered the vehicle. M. L. tried to escape but he pulled her back by the hair and said: You are not going to jump out. If you jump out, Im going to kill you. Afraid, M. L. complied. Defendant drove them to his home.

When they arrived, defendant dragged a screaming M. L. out of the car and into his house.[6] Inside the house, he hit her repeatedly and threw her around, defeating her attempts to escape. He pushed her into his bedroom where he forcibly raped her. Afterwards, he struck her multiple times, fracturing her nose and jaw. He told M. L. that he was going to kill her and bury her in the backyard. She was afraid for her life. M. L. was able to escape after she convinced defendant to let her use the bathroom.

M. L. drove home where she was met by her 16-year old niece, Cynthia C. Cynthia C. testified that a partially clad M. L. was crying, bloody, and bruised. M. L. told her that defendant beat her up. M. L.s son telephoned 911. An ambulance took M. L. to the hospital emergency room. While there, M. L. told Cynthia C. the details of her kidnapping, assault and rape by defendant. X-rays disclosed that M. L. had a fractured lower jaw, fractured nose, and ruptured eardrum.

At the hospital, Deputy Sheriff Rodriguez Booker interviewed M. L. The deputy testified that M. L. told him that defendant had kidnapped her in her car and threatened to kill her. He drove them to his home where he dragged her into the house and beat her. Then, he calmed down, they were talking[,] [and] [t]hen thats when they had sex. M. L. did not tell the deputy whether the sexual intercourse was consensual or forcible. M. L. said that after they had sexual relations, defendant became enraged again. He struck her in the face and said he was going to kill her.

Later that evening, Deputy Sheriff Laura Bojorquez interviewed M. L. at the hospital. M. L. told the deputy that defendant had kidnapped and raped her. M. L. said that she had tried to resist defendant but was very weak. He had beaten her up, and she couldnt do anything to keep him off of her. As much as she tried, she couldnt. After learning this information, Deputy Bojorquez concluded a sexual assault examination was warranted. Toni Zaragoza, a registered nurse, interviewed M. L. M. L. told her the details of the kidnapping, assault, and rape. Zaragoza then conducted a sexual assault examination. She concluded that M. L.s injuries, both throughout her body and in her vaginal area, were consistent with forcible sex.

2. The Defense Case

Defendant testified. Essentially, he claimed that M. L. was emotionally volatile and jealous, cutting off their relationship but then pursuing him and renewing their contact. Using cell phone records to refresh his recollection, he testified that she telephoned him 15 times on December 9, 10 times on December 10, and at least 5 times on December 11. They spoke on the phone several times on December 12, including one conversation that lasted 41 minutes. On December 13, they spoke 20 times.

In regard to the crimes, defendant denied having kidnapped M. L. He claimed that he never left his home the morning of December 14. He spoke with M. L. on the phone that morning. He asked her to come over. She agreed. When she arrived, they had consensual sexual relations. He conceded that he hit her in the face at least ten times but claimed he did so because, during intercourse, he learned that she was seeing another man.[7] He admitted he shouldnt have done that and he should go to jail for that but stated that M. L. had fabricated the other charges in retribution for the assault. Although he denied having hit M. L. so hard that he had fractured her jaw and nose or ruptured her eardrum, he offered no explanation as to how or why she sustained those injuries.

Defendant claimed that he was unaware that M. L. had obtained the TRO. He specifically denied that Ascencio had served him with the TRO on December 13 (or any other day).

On cross-examination, defendant admitted that he had slashed the tires on M. L.s car and had broken two windows in her home. In addition, he conceded that he telephoned M. L. 17 times during an 80-minute period on December 10 and about 20 times between 11:39 p.m. on December 10 and 3:32 a.m. on December 11.

In addition to defendant, the defense presented several witnesses to suggest no kidnapping or rape occurred. Defendants mother, Maria Zamora, testified that he lived at home and that he did not have access to a car the morning of December 14. Noe Alvarez testified that he arrived at the Zamora residence at approximately 10:45 a.m. on December 14 to leave an envelope for defendants father. Alvarez spoke with defendant who appeared sleepy. Alvarez saw no cars in the driveway. Catherine Wilkinson, defendants next-door neighbor, testified that she did not hear any screams come from defendants home during the morning of December 14. And Ofelia Gordillo, who lived three houses away from defendants residence, testified that between 11:00 a.m. and noon on December 14, she saw M. L. park her car near defendants home.

To undermine M. L.s claim that defendant was stalking her and that she was afraid of him, Christopher Rhodes testified that on December 12 (two days before the crimes), he saw M. L. and defendant enjoying a meal together at Jack-in-the-Box. Similarly, defendants mother testified that on December 12, M. L. drove her son home.

In an effort to establish that M. L. was jealous and therefore had reason to falsely accuse defendant of criminal conduct, Christina Nunez, defendants former girlfriend, testified that in November 2004, M. L. twice threatened her on the phone.

Lastly, the defense called M. L. as an adverse witness. She admitted she had seen defendant on December 12 at Jack-in-the-Box and that she had phone conversations with him on December 13 and 14. But she denied having driven herself to defendants home on December 14 and reiterated that she had yelled and screamed as he dragged her into his house.

3. Defense Closing Argument

Defense counsel urged no rape occurred. Primarily, he relied upon defendants testimony that M. L. had consented to sexual relations the morning of December 14. Secondarily, defense counsel noted that M. L. had not told Deputy Sheriff Booker that defendant had raped her; she told him only about the kidnapping, assault, and threats. Defense counsel further urged that Zaragoza, the nurse who examined M. L. and concluded that M. L.s injuries were consistent with a forcible sexual assault, was biased.

Similarly, defense counsel argued no kidnapping occurred. He argued that it was improbable that defendant would know that he could find M. L. at the intersection where she testified he had entered her car. In particular, defense counsel relied upon M. L.s testimony that she had not told defendant where she would be that morning. He also noted the testimony that defendant did not have access to a car that morning; that no one saw defendant dragging M. L. into his home; and that M. L. was seen driving near defendants home.

Defense counsel urged his client had not uttered any terrorist threats.

Lastly, defense counsel stated that given defendants concession that he had struck M. L., he would not ask the jury to find his client not guilty of assault.

4. Defendants Motion for a New Trial

After the jury convicted him of all charges, defendant discharged his retained counsel Federico De La Pena and hired Paul Geller. Geller filed a motion for new trial based upon De La Penas alleged ineffective representation. Although the motion was supported by seven declarations and four exhibits, there was no declaration from De La Pena. When we discuss defendants individual claims of ineffective representation, we shall set forth the details of the evidence proffered in support of the motion. At this juncture, it is sufficient to note that the motion raised all of the grounds now advanced on appeal.[8] The trial court denied the motion without a statement of reasons.[9]

DISCUSSION

A. Ineffective Assistance of Trial Counsel

A criminal defendant may raise a claim of ineffective assistance of trial counsel in a new trial motion. (People v. Fosselman (1983) 33 Cal.3d 572, 582-583.) After all, the trial court is in the best position to make an initial determination, and intelligently evaluate whether counsels acts or omissions were those of a reasonably competent attorney. (People v. Jones (1981) 123 Cal.App.3d 83, 89.)

To prevail on such a motion, the defendant must show that his counsels performance was deficient when measured against the standard of a reasonably competent attorney and that counsels deficient performance resulted in prejudice to defendant in the sense that it so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. (People v. Andrade (2000) 79 Cal.App.4th 651, 659-660.)

In reviewing the trial courts denial of the new trial motion, we defer to its express or implied findings if supported by substantial evidence but review de novo the ultimate question whether the facts established in the trial court demonstrate a violation of the constitutional right to effective assistance of counsel. (People v. Taylor (1984) 162 Cal.App.3d 720, 724-725.) When, as here, the defendant is represented by different counsel on the new trial motion, the trial courts decision on the question of ineffective representation is entitled to great weight. (People v. Wallin (1981) 124 Cal.App.3d 479, 483.) In addition, when, as here, trial counsel was not asked to explain his decisions, we will not find ineffective assistance unless there could be no conceivable tactical reason for the challenged acts or omissions. (People v. Jones (2003) 29 Cal.4th 1229, 1254.) Were it otherwise, appellate courts would be required to engage in the perilous process of second-guessing counsels trial strategy. (People v. Frye (1998) 18 Cal.4th 894, 979.) Lastly, even if there can be no rational tactical purpose for a particular action, a defendant must still affirmatively establish prejudice: a reasonable probability that but for the unprofessional conduct, the result would have been different. A reasonable probability is defined as a probability sufficient to undermine confidence in the outcome. (People v. Hart (1999) 20 Cal.4th 546, 623-624.)

With those principles in mind, we analyze each of defendants claims of ineffective representation.

1. Failure to Object to Evidence or to Request a Limiting Instruction

Defendant first contends that De La Pena provided ineffective representation because he failed to object or raise any pretrial motions regarding prior bad acts or improperly received character evidence against [defendant], the result of which was highly prejudicial. (Capitalization omitted.) On this point, defendant is referring to the evidence about his harassment of M. L., including acts of vandalism. Defendant also challenges De La Penas failure to object to the testimony that M. L. had obtained the TRO and the introduction into evidence of the TRO and its supporting application (see fn. 4, ante.) Defendant urges that defense counsel should have, pursuant to Evidence Code sections 1101 and 352, objected to all of this evidence.

Defendants contention is not persuasive. For one thing, trial counsels failure to object is traditionally a matter of trial tactics that a reviewing court will not second guess. (People v. Myers (2007) 148 Cal.App.4th 546, 552.) Here, De La Pena could have rationally concluded that objecting (whether before or during trial) would have been fruitless. De La Pena could well have recognized that, contrary to defendants present argument, the evidence was relevant. For one, the evidence set the context for the crimes defendant committed on December 14. Defendants harassment of M. L. before that date was evidence of his animus toward her, thereby supplying a reason for his actions of December 14. In particular, the fact that M. L. had obtained and served defendant with the TRO provided a motive for his violent attack upon her, thereby undercutting his denial that any crimes (except the assault) occurred.[10] Further, in regard to the charge of making criminal threats ( 422), the People were required to show, inter alia, that M. L.s fear was reasonable under the circumstances. (People v. Toledo (2001) 26 Cal.4th 221, 228.) Defendants misconduct committed before December 14 explained why M. L. was in reasonable fear of her life when defendant threatened her, first when she was kidnapped in her car and later when she was attacked in defendants home. In sum, the probative value of this evidence outweighed any potential prejudice. (Evid. Code,  352.) Hence, any pretrial motion or trial objection(s) to exclude this evidence would have failed, a point the trial court implicitly recognized in denying the new trial motion. Because trial counsel is not required to indulge in idle acts to appear competent (People v. Torrez (1995) 31 Cal.App.4th 1084, 1091), De La Penas failures to object do not constitute ineffective representation.

Defendant also claims that he was prejudiced because a defense objection to the evidence would have at least garnered a limiting instruction to the jury explaining that it could not improperly use the evidence to infer a predisposition to commit violence. We are not persuaded. The prosecutors closing argument never even remotely suggested such use of the evidence[11]and nothing in the record even suggests the jury considered the evidence for improper purposes. Hence, defendant was not prejudiced by the absence of such of an instruction. In any event, the jury found true the great bodily injury allegation that required a finding that, among other things, three of the crimes were committed under circumstances involving domestic violence. (CALJIC No. 17.20.) In light of this finding, which is supported by substantial evidence, it is reasonable to infer that had defense counsel requested a limiting instruction, the trial court would have concluded that the evidence was admissible on a predisposition theory pursuant to the provisions of Evidence Code section 1109[12]and therefore denied the request.

2. Failure to Investigate

Defendant next contends that De La Pena failed to adequately investigate and present evidence to support his defense of consent to the rape charge. In that regard, the new trial motion offered declarations from defendant as well as his parents who had hired De La Pena. They averred that in meeting with De La Pena, they discussed the possibility of hiring a medical expert to review the evidence and that they told De La Pena they would pay for such an endeavor. Defendant next offered a declaration from Clarissa McClung, a registered nurse and sexual assault examiner hired by Geller, his new attorney. In July 2006 (five months after trial concluded), McClung examined the records of the sexual assault examination that Zaragoza had conducted on M. L. McClung opined that the records were not conclusive as to whether a forcible rape occurred. She explained that there would usually be more evidence of tearing [in M. L.s vaginal area] if the patient were forced into having sexual intercourse. McClung conceded that [i]t is true that sometimes the victim may allow the intercourse to occur, thereby minimizing some of the physical damage during the incident[] when the parties are familiar with each other. McClung stated that without further information, the records themselves do not necessarily suggest that the intercourse was accomplished by force, or on the other hand, was consensual. She therefore concluded the records were inconclusive as to whether or not [M. L.] was forced into having sexual intercourse, and it is possible that the intercourse was consensual.

In denying the new trial motion, the trial court implicitly found that McClungs declaration did not establish that: (1) De La Pena failed to act as a reasonable advocate in presenting expert testimony to support the theory that defendant and M. L. had consensual sexual intercourse and (2) any failure to present such testimony prejudiced defendant. Substantial evidence supports those findings. For one, the trial court evaluated the declarations after having heard all of the evidence, including M. L.s testimony about the rape, testimony from three witnesses that shortly after the crimes were committed, M. L. told each of them defendant had forcibly raped her,[13]and Zaragozas testimony that M. L.s injuries were consistent with forcible sex. Significantly, McClungs declaration did not establish that there was any physical evidence consistent with defendants consent defense. Furthermore, McClung did not conclude that the medical records were inconsistent with forcible rape. Instead, she merely concluded the records were inconclusive on that issue. Her only reason for that tepid conclusion was that M. L. had not experienced more tearing and injuries to her vaginal area. But McClung conceded a potential explanation for that circumstance consistent with the facts of this case: at a certain point, M. L. relented because she was familiar with her rapist.

Having found that substantial evidence supports the trial courts implied findings, we next exercise our independent judgment on the ultimate question: was defendants right to effective assistance of trial counsel violated? We are convinced that even had De La Pena presented expert testimony such as that found in McClungs declaration, it is not reasonably probable that a more favorable result (acquittal of rape) would have occurred.

3. Failure to Present Evidence About M. L.s Character

Defendant next urges that there were at least three witnesses who possessed personal knowledge of [M. L.s] aggressive nature towards [defendant] [and if] offered, this would have seriously undermined her credibility as to some of the events alleged. Defendant is referring to three individuals interviewed by Bill Rhetts, the defense investigator hired by De La Pena. Rhetts declaration, offered in support of the new trial motion, explained that John Rhodes, one of M. L.s neighbors, would testify that M. L. was extremely jealous, clingy, and possessive with [defendant]. In addition, both John Rhodes and Christopher Rhodes would testify about an incident when M. L. became angry, if not assaultive, with defendant. Lastly, George Cervantes told Rhetts that in November 2004, defendant had told him (Cervantes) that M. L. was very jealous and had slapped him. Cervantes also told Rhetts that M. L. had a pre-existing jaw injury inflicted by her former husband. Rhetts believed that M. L.s former husband may be incarcerated in a Northern California prison but De La Pena told Rhetts not to try to locate him.

A trial attorneys decision whether to call witnesses is a matter of trial tactics. (People v. Bolin (1998) 18 Cal.4th 297, 334.) Consequently, a claim of ineffective representation is not established merely by showing that defense counsel did not interview or call all potential witnesses. (See People v. Floyd (1970) 1 Cal.3d 694, 710.) The defendant must establish the materiality and relevance of the evidence counsel did not present. (In re Sixto (1989) 48 Cal.3d 1247, 1257.)

Here, defendant has failed to establish that De La Penas decision not to call the three individuals to testify as set forth above constitutes ineffective

representation.[14],[15] None of the testimony was relevant to the disputed issues: did defendant kidnap, threaten and rape M. L.? Contrary to defendants present suggestion, M. L.s aggressive nature was not in issue in this case since defendant did not claim (nor could he) that he had acted in self-defense. (Compare Evid. Code,  1103, subd. (a)(1).) Further, none of this evidence was relevant to evaluating M. L.s credibility. (Evid. Code,  780.) And defendants appellate argument overlooks that De La Pena, as set forth in detail in our statement of facts, did call several witnesses to support the defense theory that no kidnapping occurred, that M. L. voluntarily came to defendants home on December 14, and that no rape occurred.

4. Failure to Object to Hearsay Testimony About M. L.s Prior

Consistent Statements

Defendant urges that De La Pena was ineffective because he failed to object when three witnesses testified to statements that M. L. made to them about the crimes.[16] Defendant correctly notes that the testimony triggered the hearsay rule because M. L.s out-of-court statements were being offered for the truth of the matter asserted. Defendant also concedes that the prior consistent statement exception (Evid. Code,  791 and 1236)[17]renders such testimony admissible when the hearsay declarant (here, M. L.) has been impeached through an inconsistent statement or evidence has been offered that her trial testimony was fabricated. Nonetheless, defendant argues that defense counsel should have objected to the hearsay statements because M. L. had not been impeached when the three witnesses had testified.

Defendants argument is not persuasive. An attorney may choose not to object for many reasons, and the failure to object rarely establishes ineffectiveness of counsel. (People v. Kelly (1992) 1 Cal.4th 495, 540.) Here, M. L. was the first witness to testify. De La Penas cross-examination strongly suggested that she had told Deputy Booker that she and defendant had consensual sexual relations on December 14. Arguably, this attempted impeachment was sufficient to permit the three witnesses to testify to M. L.s hearsay statements about the crimes, in which case any hearsay objection would have been fruitless. But even if not, it was clear the defense approach was to urge M. L. had fabricated the charges. At the preliminary hearing, defense counsel conducted a lengthy cross-examination of M. L. suggesting that she voluntarily went to defendants home on December 14 and consented to sexual intercourse.[18] Further, De La Pena knew that he would continue to impeach M. L.s testimony about the crimes. Knowing that, he could reasonably have concluded that because the hearsay statements would ultimately be admitted during the Peoples rebuttal case, it was better not to object and to simply permit the jury hear the testimony when first offered. Otherwise, the prosecutor would later recall the witnesses to the stand, an action that would only give the hearsay statements greater emphasis. In sum, a reasonable tactical basis exists to explain trial counsels failure to object. And even if De La Pena had objected and the trial court sustained the objections, the hearsay statements would ultimately have been admitted. Thus, the failure to object could not have prejudiced defendant.

5. Failure to Object to Narrative Answers

Defendant argues that De La Pena was ineffective because he did not object when M. L. gave narrative answers to the prosecutors questions. Not so. The failure to object could have had a reasonable tactical basis: a concern that it would have struck the jury as unfair given M. L.s sympathetic status as a victim of a brutal assault in light of defendants concessions that he struck her multiple times. (See People v. Shea (1995) 39 Cal.App.4th 1257, 1266; see also In re Seaton (2004) 34 Cal.4th 193, 200, fn. 3 [Attorneys often choose not to object for reasons that have no bearing on their competence as counsel].) In any event, even had counsel objected and the trial court sustained the objections, defendant could not have been prejudiced because M. L. would have testified to the same facts, just in a different manner.

6. Overall Handling of the Case

Lastly, defendant urges that [p]erhaps [the] most damaging errors of defense counsel was his overall handling of the case in general during trial. He failed to object to evidence, statements, and was shuffling through incorrect paperwork, referred to wrong pages, and just appeared unprepared throughout the case. Defendant also claims that [t]rial counsels presentation of defense witnesses was jumbled, disjoined, and ultimately destructive to [his] right to a fair trial. [Defense] counsels presentation did much more harm than good.

These conclusory assertions are insufficient to establish ineffective representation. Generic speculation that more able, timely, or thorough representation would have resulted in a different outcome is insufficient. (Strickland v. Washington (1984)466 U.S. 668, 693-694; People v. Williams (1988) 44 Cal.3d 883, 937.)

To the extent that defendant cites to specific examples that we have not already discussed, we have carefully read the entire record and are confident that it is not reasonably probable that a result more favorable to defendant would have occurred (acquittal of all charges except assault) in the absence of any of the claimed deficiencies, whether a failure to object to testimony, to impeach witnesses or to present exculpatory evidence. Nothing would be gained by dissecting every minute complaint that defendant advances. (See People v. Hester (2000) 22 Cal.4th 290, 297 [No prejudice having been shown, we need not determine whether counsels performance was deficient].)

In sum, [n]othing rebuts the presumption that counsel presented the case as well as [he] reasonably could under the circumstances. (People v. Freeman (1994) 8 Cal.4th 450, 513.)

B. DENIAL OF RIGHT TO RETAINED COUNSEL OF CHOICE

In addition to urging that De La Pena had provided ineffective representation at trial, defendants new trial motion also urged that he had been denied the right to retained counsel of his choice (De La Penas wife, Mary Jo De La Pena) and that De La Penas ineffective representation was directly responsible for that loss. The record amply supports the trial courts implied finding to the contrary.

1. Factual Background

Defendants new trial motion offered several declarations in an effort to substantiate his claim that he had retained Mary Jo De La Pena to participate at trial as co-counsel with her husband. Defendants mother averred that when she first met with De La Pena on April 18, 2005 to discuss retaining him, De La Pena indicated that by hiring his office, [defendant] would getting the benefit of hiring two attorneys, as his wife was also an attorney and was very experienced at handling rape cases. He specifically told [her] that his wife would be handling the cross-examination of [M. L.], and the rape portion of the case in Court during trial. He indicated that his wife was an expert on rape. He also indicated that a jury would be more receptive to a woman asking questions during cross examination of the female victim in this case. Defendant averred that De La Pena made the same representations to him when he visited him in jail in April 2005. According to defendant, his parents, his brother, and defense investigator Rhetts, De La Pena reiterated these representations at subsequent meetings.

Before trial, defendant met Mary Jo De La Pena twice while she appeared in Court to continue the case. He also met her after trial when she appeared for sentencing.[19] Defendants declaration is devoid of any assertion that on any of these occasions the two discussed her (purported) participation at trial. Defendant did claim that several times during trial he asked De La Pena about his wife and that De La Pena told him that she was sick and [in the] hospital, and that he could handle the case.

Defendants mother never met Mary Jo De La Pena until she appeared at the sentencing hearing. (But see fn. 19, ante.) She asked her why she had not appeared during trial. Mary Jo De La Pena indicated that she was in trial on another case.

Defendants declaration concluded: Were it not for the representations made by Mr. De La Pena that his wife was also going to be assisting in Court on this case, and the discussions regarding the defenses and the presentation of evidence[,] I would not have hired him in the first place.

Defendant also proffered a copy of the retainer agreement executed on April 18, 2005 to substantiate his claim that Mary Jo De La Pena was hired to participate in the trial. The agreement, however, sheds no light on the issue. It simply acknowledges that defendant was retaining the Law Offices of De La Pena, Attorneys at Law. Thereafter, the agreement makes four references to the Attorney who will provide services but it never identifies that individual.

The new trial motion did not include declarations from either Federico or Mary Jo De La Pena.

The new trial motion alleged that De La Pena was ineffective because he failed to request a continuance in order to have [his wife] the attorney who was supposedly going to handle the cross examination of the victim and the rape evidence in the case to appear, as she was hospitalized.

2. Discussion

On appeal, defendant continues to urge that De La Pena was ineffective for failing to request a continuance of trial so that his wife could participate, thereby depriving him of the right to retained counsel of his choice. In denying the new trial motion, the trial court implicitly rejected the predicate to that claim: that defendant had even retained Mary Jo De La Pena to serve as co-counsel. Substantial evidence supports that determination.

Although all of the defense declarations claimed that De La Pena represented that his wife would participate as co-counsel during critical stages of the trial, the retainer agreement does not reflect such an agreement. It does not identify the attorney involved in the case and does not indicate that more than one attorney would appear as defense counsel. In addition, Federico De La Pena filed four motions to continue the trial. Three were based upon his inability to try the matter because he was engaged in other matters and the fourth was based upon the unavailability of the defense investigator (Rhetts).[20] None of the motions made any reference to Mary Jo De La Penas participation as co-counsel in the case.

Further, none of the declarants (including defendant) ever met or spoke with Mary Jo De La Pena at any of the pretrial meetings conducted in De La Penas office,[21]a circumstance which certainly casts doubt on the credibility of their statements that De La Pena repeatedly represented that she would participate at trial. Although defendant averred that he met Mary Jo De La Pena twice in court before trial began, he never asserted that he discussed the case with her, another circumstance which casts doubt on his claim. Significantly, defendant never once raised in the trial court the fact that Mary Jo De La Pena was absent. Given his purported belief about the important role she intended to play at trial, it is reasonable to assume that defendant would have brought her absence to the courts attention. He did not. Lastly, the courts minute orders reflect that on the one occasion Mary Jo De La Pena did appear prior to trial, she appeared only for that date on behalf of retained counsel, Federico De La Pena.[22]

From this entire record, the trial court could reasonably infer that Mary Jo De La Penas participation as co-counsel was not part of the retention agreement. It therefore follows that De La Penas failure to seek a continuance to permit her participation cannot constitute ineffective representation of counsel.

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DISPOSITION

The trial court is directed to prepare and forward to the Department of Corrections an amended abstract of judgment reflecting imposition of a total of four $20 fees (for a total of $80) on defendant pursuant to section 1465.8. As so modified, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, J.

We concur:

EPSTEIN, P. J.

SUZUKAWA, J.

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[1] All undesignated statutory references are to the Penal Code.

[2] Section 1465.8 requires the trial court to impose a $20 court security fee on every conviction for a criminal offense. Here, the trial court imposed only one $20 fee although defendant was convicted of four crimes. We shall direct modification of the judgment to reflect imposition of four such fees. (People v. Schoeb (2005) 132 Cal.App.4th 861, 865-867.)

[3] Defendant, represented by the same attorney who is handling the present appeal, has also filed a petition for writ of habeas corpus in this court (In re Zamora; B198178). The petition, supported by the same record presented on appeal, simply reiterates all of the claims of ineffective representation raised on appeal. Because this opinion resolves all of those issues adversely to defendant, we file today an order denying his petition. (In re Harris (1993) 5 Cal.4th 813, 825.)

[4] The TRO and supporting application were entered into evidence. On our own motion, we have augmented the record on appeal to include all exhibits offered at trial. (Cal. Rules of Court, rule 8.155(a)(1)(A).)

[5] Defendant testified the intersection was three miles from his home.

[6] Defendant was larger than M. L. He was 5 feet, 11 inches tall and weighed approximately 165 pounds; she was 5 feet, 7 1/2 inches tall and weighed approximately 145 pounds.

[7] Defendant testified that during sexual intercourse, he stopped and told M. L.: You feel different. Something is wrong with you. What was going on. . . . Who have you been with? Defendant explained that by something feels different, he meant: She [M. L.] was like real wet and real loose. According to defendant, at the moment they stopped sexual relations, M. L. received a text message on her cell phone from a man. Defendant read the message and he asked M. L. about the man. They argued and at that point he began to hit her.

[8] Geller continues to represent defendant both on this appeal and in the habeas corpus petition filed in this court. (See fn. 3, ante.)

[9] On the day of the hearing on the new trial motion, the District Attorney filed opposition. Defense counsel requested a continuance to review it. The trial court declined. It explained that because the opposition was untimely, it simply would not consider it.

The record on appeal includes a copy of the prosecutors opposition. Defendant filed a motion to correct the record to remove the prosecutors opposition. We denied the motion.

[10] Defendant advances several other arguments as to why De La Pena should have objected to admission of the TRO, none of which has merit. First, defendant claims that De La Pena should have objected that the evidence in the TROs supporting documents about his specific acts of misconduct was inadmissible hearsay. The problem with this claim is that the evidence was hearsay only if offered for the truth of the matter asserted but the prosecutor never used it for that purpose. She argued only that M. L.s obtaining the TRO demonstrated her fear of defendant and that Ascencios service of it prompted defendants attacks on December 14. (See fn. 11, infra.) In any event, any potential hearsay problem was cured because M. L. testified about the specific acts of harassment set forth in the supporting documents, subjecting herself to cross-examination about those matters. Additionally, in light of some of the defense testimony, there was no dispute that much of defendants misconduct occurred. When defendant testified, he admitted many of the acts (e.g., slashing tires, breaking windows, repetitive phone calls). And defendants mother conceded, on cross-examination, that defendant had slashed the tires on M. L.s vehicle and thrown a brick through the windows of her home.

Defendant also urges that defense counsel should have offered evidence that the TRO was taken off calendar and dissolved because no one appeared at the scheduled January 5, 2005 hearing. That point is irrelevant. The relevancy of the TRO lay in the fact that defendant was served with it shortly before he committed the crimes, thereby supplying the motive for his attack on M. L. Defendants arrest and incarceration for those crimes obviated any need for M. L. to pursue the TRO. Hence, a reasonable defense attorney could have rationally concluded that nothing was to be gained by pursuing this point. This is particularly so given the fact that on July 6, 2005 (after defendant was released on bail prior to trial), the trial court issued a Protective Order in Criminal Proceeding ( 136.2) restraining defendant from having any contact with M. L. Raising an issue about the status of the TRO could have opened the door to permitting the prosecutor to put on evidence about the July 6, 2005 protective order.

Similarly, De La Pena was not ineffective because he did not pursue the point that (apparently) no proof of service of the TRO was filed with the superior court. Defendants arrest and incarceration obviated the need to file a proof of service.

Lastly, defendant claims that De La Pena failed to adequately cross examine Ascencio about her testimony that she served defendant with the TRO despite having impeachment evidence to that issue. The alleged impeachment evidence, offered as an exhibit in support of the new trial motion, was a supplemental sheriffs report generated five months after the crimes. In it, Detective Jaime wrote that she spoke with Ascencio on April 29, 2005 and that Ascencio told her that prior to this incident [on Dec. 14, 2004], she served [defendant] with the restraining order and stated he was at his house when she served him. She believes she served him a day prior to this incident [on Dec. 14]. (Italics added.) Defendant argues that Ascencios statement to the deputy that she believed she served defendant the day before the crimes impeaches her trial testimony that she served him on December 14. We are not persuaded. This is an immaterial inconsistency; the material issue is whether she served him with the TRO before the crimes were committed. Her testimony established that she had. Nothing in her statement to the detective calls that fact into question.

[11] In closing argument, the prosecutor explained:

You have the testimony of the events leading up to December 14th, the 9th through the 14th. And you know from [M. L.] that she had been trying for a while to kick [defendant] out since Thanksgiving. She wasnt getting tough with him. She was letting him come back. She didnt want to make a scene because of her kids and mom. But on the 9th, she decided enough was enough. She symbolically put her foot down. And thats when things escalated, when the defendants behavior escalated. But you know the situation is true because the defendants mother testified that on Thanksgiving that [M. L.] called her and told her she wanted [defendant] out, to come pick him up. Thats defendants mother corroborating [M. L.] that she was kicking him out at Thanksgiving.

On December 9th, we know that in his anger responding to [M. L.], he slashed her tires and broke the windows of her house. Nobody disputes that. The defendant admits that. His mom admits that, corroborating Davids escalating behavior on the 9th. Between the 11th and 12th, Saturday and Sunday morning, [M. L.] picked up her niece [Cynthia C.] in Arizona. And when Cynthia [C.] came back, she started witnessing some of the events right away, [defendant] in the street yelling, cussing, making a scene. And then on Sunday is the Jack-in-the-Box incident that both Cynthia [C.], the niece, and Cynthia [C.s] friend witnessed, where defendant kept making his presence known but that they had to look outside before they got into the car to try to go to Jack-in-the-Box. We know what happened there. He banged on the window trying to get [M. L.] to talk. He forced his way inside the house, fainting, with a heart attack, witnessed by other people with [M. L.], corroborating her testimony.

And finally, youll have the restraining order, a certified document authenticating it by the Clerk of this Court. And in it she documents much of what she told you had happened. And it was filed on December 13th. You will see it, the court document. She had her girlfriend Diana [Ascencio] serve it that morning. Of course, the defendant denies it because he has to. How could he tell his story if he admits getting this restraining order. But even when he saw it, he admitted that it existed.

You got to ask yourself, is this behavior that the defendant described the behavior of somebody who would file a restraining order the day before and have it served the day of these events? And its not. Would she consensually go with him to his house? Of course not. If she is getting a restraining order because she is in fear, of course not. Thats corroborating evidence of [M. L.].

In the end, I think the evidence is clear that the defendant did not accept being rejected. He was angry. He was upset. And thats normal. But when things stopped going his way, when he couldnt get his way, its clear his anger turned to vandalism, harassment, and ultimately violence.

[12] Evidence Code section 1109 provides, in relevant part:

(a)(1) Except as provided in subdivision (e) or (f), in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendants commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352. . . .

(b)(3) Domestic violence has the meaning set forth in Section 13700 of the Penal Code.

[13] The three witnesses are Cynthia C., Deputy Sheriff Bojorquez, and Nurse Zaragoza.

[14] Defendants declaration offered in support of the new trial motion averred that he had asked De La Pena about calling John Rhodes and George Cervantes as witnesses and that De La Pena had told him they would not be helpful.

[15] As set forth earlier in our statement of facts, De La Pena did call Christopher Rhodes to testify that he saw defendant and M. L. enjoy a meal together on December 12.

[16] On appeal, defendant identifies the three witnesses as Cynthia C., Deputy Sheriff Booker, and Deputy Sheriff Bojorquez. We note that Nurse Zaragoza also testified to similar hearsay statements from M. L.

[17] Evidence Code section 1236 provides: Evidence of a statement previously made by a witness is not made inadmissible by the hearsay rule if the statement is consistent with his testimony at the hearing and is offered in compliance with Section 791.

Evidence Code section 791 provides: Evidence of a statement previously made by a witness that is consistent with his testimony at the hearing is inadmissible to support his credibility unless it is offered after:

(a) Evidence of a statement made by him that is inconsistent with any part of his testimony at the hearing has been admitted for the purpose of attacking his credibility, and the statement was made before the alleged inconsistent statement; or

(b) An express or implied charge has been made that his testimony at the hearing is recently fabricated or is influenced by bias or other improper motive, and the statement was made before the bias, motive for fabrication, or other improper motive is alleged to have arisen.

[18] A transcript of the preliminary hearing is included in the record on appeal. At that hearing, defendant was represented by private counsel Alex Kessel. The People were represented by the same deputy district attorney (Deborah Escobar) who prosecuted defendant at trial.

[19] The trial courts minute orders indicate that Mary Jo De La Pena appeared only once in this case, not three times as claimed by defendant. (See fn. 22, infra.)

[20] On our own motion, we have augmented the record to include the superior court file. (Cal. Rules of Court, rule 8.155(a)(1)(A).) We take judicial notice of its contents, including De La Penas motions for a continuance. (Evid. Code,  452, subd. (d)(1) and 459, subd. (a).)

[21] According to defendants declaration, he participated in five such meetings after he posted bail.

[22] On May 19, 2005, the case was called for a pretrial conference. The trial courts minute order for that date reads, in relevant part: Defendant is present in court, and represented by F.A. De La Pena private counsel. [] Mr. De La Pena appearing by Mrs. M. J. De La Pena, this date only. (Italics added.)