IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT Yolo
June 28, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
ALEJANDRO ALFONSO SANCHEZ, DEFENDANT AND APPELLANT.
Super. Ct. No. 090417
The opinion of the court was delivered by: Butz ,j.
P. v. Sanchez CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant Alejandro Alfonso Sanchez of one count of rape by force or threat (Pen. Code, § 261, subd. (a)(2)),*fn1 with an enhancement for kidnapping (§ 667.61, subds. (b) & (e)(1)). Defendant was also convicted of one count of kidnapping (§ 207, subd. (a)), and one count of assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)). He was sentenced to 15 years to life in state prison.
On appeal, defendant complains of ineffective assistance of counsel, inadequate voir dire of the jury panel, and sentencing error. We shall correct the sentence but in all other respects affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
At approximately 1:00 a.m. on January 24, 2009, 14-year-old D.C. snuck out of her parent's house in Woodland to meet her boyfriend Fernando, who was on house arrest and unable to leave his residence. Pursuant to their arrangement, Fernando's cousin Heriberto picked up D.C. and gave her a ride in a car that belonged to defendant's mother. Defendant and D.C.'s friend Ramiro were passengers. D.C. knew defendant from school, but they were not friends. While at Fernando's house, everyone but Heriberto smoked marijuana.
Around 4:30 a.m., the group left Fernando's house in the car belonging to defendant's mother. After Heriberto dropped himself off, defendant took the wheel. He drove Ramiro home and continued toward D.C.'s house, located only three or four blocks away. However, defendant spotted a police car and abruptly veered in the opposite direction.
After some distance, defendant parked the car, grabbed D.C., and said, "You're about to get fucked, bitch." D.C. wriggled free and ran from the vehicle, but defendant chased her down the street, grabbed her, and forced her back to the car while covering her mouth. He warned her not to scream because he had a knife.
Once inside the car, defendant apologized. They agreed D.C. would drive herself home with defendant in the back seat. As D.C. stopped in front of her house, defendant wrapped his arm around her neck from the back seat and blocked the door handle. He forced D.C. to drive while keeping his arm around her neck. Once she parked the car, defendant pulled D.C. by her armpits into the backseat.
D.C. struggled with defendant and repeatedly resisted his demands that she have sex with him. When D.C. refused to take off her jeans, defendant punched her in the cheek and choked her until she fainted. When D.C. awoke, defendant was driving in a remote area and she was lying naked on the back seat with semen in her hair and mouth. D.C. got dressed and opened the window to catch her breath because her throat was closed and swollen.
Trying to escape, D.C. threw herself out of the moving vehicle, breaking her ankle. A passing vehicle stopped and gave D.C. a ride home. Just before 6:30 a.m., D.C. limped into her driveway. Her clothes were covered with dirt. She sustained multiple scratches and was missing a shoe.
D.C. was taken to the hospital for a sexual assault examination. She needed surgery to repair her broken ankle. D.C. was a virgin before this incident, and she told the examining nurse that her vagina had been bleeding. She had multiple abrasions covering her body, a bite mark on her cheek, and broken blood vessels on her face and neck, which are commonly associated with strangulation. Her genitals were injured in a way consistent with acute sexual assault, and semen matching defendant's DNA profile was found on her cheek. D.C. told the examining nurse that she remembered defendant trying to put his penis in her mouth and ultimately penetrating her vagina with his penis as she slipped in and out of consciousness.
Defendant was charged in count 1 with forcible rape (§ 261, subd. (a)(2)), with enhancements for kidnapping which substantially increased the risk of harm and personal infliction of great bodily injury (§ 667.61, subds. (a), (b), (d)(2), (e)(1) & (3)). Count 2 charged defendant with kidnapping with an enhancement for personal infliction of great bodily injury (broken ankle). (§§ 207, subd. (a), 12022.7, subd. (a).) The information also alleged two counts of assault by use of force likely to produce great bodily injury: count 3 for "choking" with an enhancement for personal infliction of great bodily injury ("unconsciousness"); and count 4 for "punch to face." (§§ 245, subd. (a)(1), 12022.7, subd. (a).)
The jury found defendant guilty of counts 1 through 3 (rape, kidnapping, and assault based on "choking"), and found true the aggravated kidnapping enhancement attached to count 1 (§ 667.61, subd. (b)). However, they acquitted him on count 4 ("punch to face") and deadlocked on the remaining enhancements, which were eventually dismissed. Defendant was sentenced to state prison on count 1 for an indeterminate term of 15 years to life. Punishment on the remaining counts was stayed pursuant to section 654.
I. Ineffective Assistance on the Suppression Motion
Defendant claims his trial attorney rendered ineffective assistance of counsel by negligently pursuing the motion to exclude his confession on Miranda*fn2 grounds. For the reasons that follow, we find no prejudice and therefore reject the claim of ineffective assistance.
Defendant was interviewed by Detective Parveen Lal on the day of his arrest, January 24, 2009. Although initially reluctant to provide many details, he ultimately confessed to choking and raping D.C. in his mother's car earlier that day.
Prior to trial, defendant filed a "boilerplate" motion to suppress the entire interview, arguing this confession was obtained in violation of his constitutional rights. The People filed a written response.
At the hearing, the People described the motion as "very vague," to which defense counsel replied, "deliberately so." "Sometimes vagueness is an art form," the court chimed in. Counsel thereupon submitted the motion on the pleadings, and the trial court denied it.*fn3
Defendant argues his trial counsel rendered ineffective assistance by submitting a sloppy suppression motion, which failed to cite relevant law or offer the videotape into evidence. He contends that, had counsel diligently pursued the motion, there was a reasonable probability that the interview would have been suppressed, resulting in his acquittal on all counts. We disagree.
To show ineffective assistance of counsel, a defendant must demonstrate that the counsel's representation fell below an objective standard of reasonableness under prevailing professional norms, and that there is a reasonable probability that, but for counsel's unprofessional errors, the outcome of the proceeding would have been different. (In re Jones (1996) 13 Cal.4th 552, 561, 587; Strickland v. Washington (1984) 466 U.S. 668, 700 [80 L.Ed.2d 674, 702] (Strickland); People v. Fosselman (1983) 33 Cal.3d 572, 584.) "'"[A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies."'" (People v. Rodrigues (1994) 8 Cal.4th 1060, 1126.)
As the California Supreme Court noted in People v. Sims (1993) 5 Cal.4th 405, "a federal constitutional 'trial error' such as the admission of an involuntary confession does not automatically require reversal of the conviction, but is subject to the harmless-error analysis set forth in Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705]." (Sims, at p. 447, citing Arizona v. Fulminante (1991) 499 U.S. 279, 306-309 [113 L.Ed.2d 302, 329-331].) Therefore, the erroneous admission of an involuntary confession will not justify reversal if the reviewing court determines such error was harmless beyond a reasonable doubt. (Sims, supra, 5 Cal.4th at p. 447.)
In this case, defendant argues his confession would have been excluded had defense counsel more aggressively pursued the motion because (1) the confession was coerced and (2) the interview should have been terminated when he invoked his right to remain silent.*fn4
Assuming without deciding the trial court should have excluded defendant's confession, we conclude any error was harmless beyond a reasonable doubt. A fortiori, any ineffective assistance in handling the motion was harmless.
At trial, D.C. vividly testified about how defendant threatened her, attacked her to prevent her escape, and choked her into unconsciousness. Her testimony was consistent with what she told her mother and the examining nurse. The 14-year-old victim was a virgin before the rape and she suffered severe injuries to her vaginal area consistent with a sexual attack. Semen consistent with defendant's DNA profile was recovered from D.C.'s cheek. The jury also saw photographic evidence of the abrasions on D.C.'s body, the marks on her neck, and her bruised and bleeding vagina. Defendant did not testify and mounted only a perfunctory defense.
We therefore can say with a high degree of confidence that it is not reasonably probable that the outcome of defendant's trial would have been more favorable if the videotaped interview had been excluded. Accordingly, regardless of whether trial counsel was ineffective in handling the suppression motion, any misfeasance in this respect could not have prejudiced defendant.*fn5
II. Adequacy of Voir Dire
Defendant contends the voir dire conducted by the trial court was inadequate to uncover bias on the part of potential jurors, thus depriving him of his fundamental right to an impartial jury. We disagree.
Prior to conducting the voir dire, the trial judge stated he would follow the "usual" process and invited both parties to submit any additional or "special questions" to be asked by the court. Each attorney was granted 30 minutes to voir dire the entire panel directly.
The trial court utilized a selection process in which prospective jurors first responded to a brief questionnaire regarding their occupations, children, past jury experience, and town of residence. New prospective jurors were called whenever members of the original panel were excused for cause or otherwise.
After the responses to preliminary questions, the court specifically asked: (1) if anyone was or had a close friend or family member, "currently under prosecution by the district attorney"; (2) if anyone knew any of the witnesses; (3) if anyone or a close friend or family member had been the victim of the same or similar crime; (4) if anyone had friends or family members involved in law enforcement; and (5) if anyone would "[f]eel uncomfortable making decisions about" those of a "different national origin, racial, or religious group." One prospective juror was excused after disclosing she had been sexually assaulted in the past. Six more were excused for other reasons.
When the second and third groups were seated, jurors were asked: (1) if anyone or a family member had been a victim of the same or similar crime; (2) if anyone was currently being prosecuted; (3) if anyone would have difficulty considering the testimony of law enforcement; and (4) if anyone would be disappointed if the case was unlike a television show. Seven more jurors were excused. Incoming jurors were later asked whether they could be objective in handling police officer testimony. Each attorney was also permitted to ask follow-up questions of the entire panel.
Defendant argues the voir dire conducted by the trial court was wholly inadequate to uncover actual bias in the jury panel, and that the trial court was derelict in failing to ask each potential juror all questions recommended by the Judicial Council. We disagree.
Quoting People v. Holt (1997) 15 Cal.4th 619, 661 (Holt) defendant argues that "'[t]rial court judges should closely follow the language and formulae for voir dire recommended by the Judicial Council in the Standards [of Judicial Administration] to ensure that all appropriate areas of inquiry are covered in an appropriate manner.'" This claim misstates the law. Holt specifically states that strict compliance with the recommended questions is not required for a fair trial. (Ibid.) "Failure to use the recommended language may be a factor to be considered in determining whether a voir dire was adequate, but the entire voir dire must be considered in making that judgment." (Ibid., italics added.)
Under established case law, the trial court is afforded substantial deference and great latitude in deciding which questions should be asked when conducting a voir dire. (Mu'Min v. Virginia (1991) 500 U.S. 415, 451 [114 L.Ed.2d 493, 511] (conc. opn. of O'Connor, J.); People v. Earp (1999) 20 Cal.4th 826, 852.) "'The Constitution . . . does not dictate a catechism for a voir dire, but only that the defendant be afforded an impartial jury.'" (People v. Box (2000) 23 Cal.4th 1153, 1179 (Box) [disapproved on a different ground in People v. Martinez (2010) 47 Cal.4th 911, 948, fn. 10], quoting Morgan v. Illinois (1992) 504 U.S. 719, 729 [119 L.Ed.2d 492, 503].)
Unless the voir dire "is so inadequate that the reviewing court can say that the resulting trial was fundamentally unfair, the manner in which voir dire is conducted is not a basis for reversal." (Holt, supra, 15 Cal.4th at p. 661.) Abuse of discretion is found only where the questioning is not reasonably sufficient to test the jury for bias or partiality. (Box, supra, 23 Cal.4th at p. 1179.)
The voir dire conducted here met constitutional standards. The trial judge asked a variety of questions designed to ferret out potential bias. Moreover, the questioning was not conducted by the trial judge alone. Both parties were invited to participate in the voir dire drafting process and were afforded the opportunity to further probe the prospective jurors about a variety of topics pertinent to the case.*fn6 Although the trial judge did not propound identical questions to every single potential juror, all of the prospective jurors were present in the courtroom during the voir dire and heard the full spectrum of prior questioning. The prosecution concluded voir dire with a detailed inquiry into each juror's ability to participate in a case involving the rape of a 14-year-old girl.
For all of the foregoing reasons, we reject the argument that the voir dire rendered defendant's trial fundamentally unfair or violated his right to an impartial jury.*fn7
III. Failure to Excuse Juror No. 7
Defendant argues he received ineffective assistance of counsel because trial counsel did not seek to remove Juror No. 7 after she revealed potential bias. The argument is unpersuasive.
After each side gave opening statements, Juror No. 7 passed a note to the court, which was addressed privately in chambers during a recess. Juror No. 7 had not been specifically asked whether she had ever been assaulted. She revealed that she was molested as a child by three different people and had also been raped. As a result, she suffered from posttraumatic stress syndrome and depression.
Defense counsel asked Juror No. 7 whether she could separate her personal experience from the case at hand. She responded, "I think I can." She pointed out that the present case was distinguishable because her experience involved molestation by older men, rather than a peer. The court then asked whether Juror No. 7 could make a decision on the case based on evidence, to which she responded, "Right. . . . [S]o far today, I'm okay, I just hope that I can continue." Finally, the court asked the juror to confirm that she "[could] be fair to all the parties . . . and decide the case based upon the evidence" despite her personal experience. Juror No. 7 replied that she would do her best and expressed a desire to "do [her] part as a citizen." Neither party asked that Juror No. 7 be excused.
Defendant argues that trial counsel was ineffective by failing to disqualify Juror No. 7 after she revealed she had been a rape victim and was still suffering from posttraumatic depression. We disagree.
In order to establish ineffective assistance of counsel, defendant must show counsel's representation was deficient and subjected him to prejudice. (Strickland, supra, 466 U.S. at pp. 687-688 [80 L.Ed.2d at pp. 693-694].) On appeal, "[a] reviewing court will indulge in a presumption that counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy." (People v. Carter (2003) 30 Cal.4th 1166, 1211 (Carter).)
Juror No. 7 did not reveal obvious bias. She bravely expressed her desire to perform her duty "as a citizen" and to try to separate her own experience from the evidence in the case. There may have been a variety of plausible reasons, not apparent from the cold transcript, why defense counsel decided not to seek her removal. "On appellate review, a voir dire answer sits on a page of transcript. In the trial court, however, advocates and trial judges watch and listen as the answer is delivered. Myriad subtle nuances may shape it, including attitude, attention, interest, body language, facial expression and eye contact." (People v. Lenix (2008) 44 Cal.4th 602, 622.) Any number of nonverbal clues could have prompted competent defense counsel not to have objected to Juror No. 7.
Because sound tactical reasons for trial counsel's conduct are conceivable on this record, we must presume on appeal that his decision was the product of informed trial strategy. (Carter, supra, 30 Cal.4th at p. 1211.) Thus, defendant's ineffective assistance claim must be rejected.
Defendant contends the trial court miscalculated his pretrial credit for time served. We agree.
The amended abstract of judgment does not set forth defendant's presentence credits.*fn8 The record indicates defendant was awarded 400 days of custody credits based on time served in custody beginning January 26, 2009. However, the probation report shows that defendant was actually arrested on January 24, 2009. Thus, as the People concede, the abstract of judgment should be amended to award defendant 350 days of actual credits (instead of 348 days) plus an additional 52 days of conduct credits pursuant to section 2933.1, for a total of 402 days of presentence custody credit rather than 400 days.*fn9
The trial court is directed to prepare a second amended abstract of judgment to reflect the correct number of days of actual custody credit, as set forth in this opinion, and shall forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
RAYE , P.J. ROBIE ,J.